Minister for Justice v Fawl

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Patrick McGrath
• Judgment Date: 13 March 2025
• Neutral Citation: [2025] IEHC 168
• Docket Number: Record No 2022 EXT 234

Between

Minister for Justice

Applicant

and

James Fawl

Respondent

[2025] IEHC 168

Record No 2022 EXT 234

THE HIGH COURT

Trade and Co-Operation Agreement warrant – Surrender – European Arrest Warrant Act 2003 s. 37 – Applicants seeking an order for the surrender of the respondent to the United Kingdom on one Trade and Co-Operation Agreement warrant – Whether surrender was prohibited under s. 37 of the European Arrest Warrant Act 2003

Facts: The applicant, the Minister for Justice, applied to the High Court seeking an order for the surrender of the respondent, Mr Fawl, to the United Kingdom (UK) on one Trade and Co-Operation Agreement warrant (TCAW), for the purposes of being prosecuted for three offences. The TCAW was issued by Judge Smyth at Belfast Crown Court on 25 October 2022. Mr Fawl objected to surrender on the following grounds: the amendments effected to the European Arrest Warrant Act 2003, particular to ss. 4A and 22 thereof, by way of secondary legislation in the European Union (European Arrest Warrant Act 2003) (Amendment) Regulations 2021 were ultra vires and of no lawful effect; no presumption of compliance with the terms of the Trade and Co-Operation Agreement arose, nor could arise as a matter of EU law, following the decision of the CJEU in Alchaster (Case C-202/24, Alchaster [2024]); his surrender was prohibited under s. 37 of the 2003 Act as, were he to be detained in a UK prison following surrender, there was a real risk of a breach of his rights under the Constitution, European Convention on Human Rights (ECHR) and/or Charter on Fundamental Rights of the European Union (the Charter); surrender would constitute a disproportionate interference with his family rights under the Constitution, ECHR and the Charter; if convicted he would have a sentence imposed which would include a licence regime and during the licence period, he would not be permitted to leave the issuing State in contravention of his rights under Protocols 4 and 12 to the ECHR and provisions of the Charter; and there was a lack of clarity in the offences to which the TCAW related.

Held by McGrath J that: the argument that the amendments effected to the 2003 Act were ultra vires and of no lawful effect was rejected in Minister for Justice v McAuley [2025] IEHC 28; the court must approach fundamental/human rights objections to surrender to the UK cognisant of it being a party to the ECHR; there were no valid reasons for believing that there was a real risk of a breach of the rights of Mr Fawl or of a failure to protect his rights if surrendered to Northern Ireland and detained in one of its prisons; there was no evidence to suggest that the interference with the family/personal rights of Mr Fawl occasioned by his surrender would be well outside the norm; the UK, as a contracting state to the ECHR, may interfere with the right of a person to travel for a legitimate purpose and there was no suggestion that Mr Fawl, upon the completion of his sentence, would be prevented from leaving the UK, citing Minister for Justice v O’Donnell [2014] IEHC 138; and there was no lack of clarity in the TCAW.

McGrath J made an order for the surrender of Mr Fawl to Northern Ireland pursuant to s. 16 of the 2003 Act.

Application granted.

JUDGMENT of Mr. Justice Patrick McGrath delivered on the 13 March 2025

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’), for the purposes of being prosecuted for three offences being:-

• — One offence of Causing Grievous Bodily Harm with Intent contrary to Section 18 of the Offences Against the Person Act, 1861; and

• — Two offences of Assault contrary to common law and Section 47 of the 1861 Act.

2 The particulars of the offences are set out in paragraph (e) of the TCAW. It is alleged that on the 25 December 2020, the Respondent punched his partner's father, resulting in him losing all vision in his left eye. This conduct relates to the Section 18 Grievous Bodily Harm offence.

3 On the same occasion he is alleged to have struck his partner and her mother on their arms and body resulting in bruising to both victims. This is the conduct alleged to amount to the Section 47 offences.

4 The Respondent was charged and, having been committed for trial by Laganside Magistrates Court to the Crown Court, released on bail and thereafter failed to attend at the following court date, 31 August 2021, when a warrant issued for his arrest.

5 A Trade and Co-Operation Agreement Warrant [‘TCAW’] was thereafter issued by Her Honour Judge Patricia Smyth at Belfast Crown Court on the 25 October 2022. This TCAW was endorsed by this Court pursuant to Section 13(2) of the European Arrest Warrant Act, 2003 (as amended) [ ‘the 2003 Act’] on 29 November 2022. Mr Fawl was arrested on foot of the said TCAW and produced before this Court on 8 October 2024. He was initially remanded in custody but subsequently released on bail pending the determination of these proceedings.

UNCONTROVERSIAL MATTERS

6 The TCAW was issued by Her Honour Judge Patricia Smyth, a ‘judicial authority’ in the United Kingdom within the meaning of s. 10 of the 2023 Act.

7 No issue is taken in relation to identity, and I am satisfied the Respondent is the person named in the Warrant.

8 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.

9 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.

10 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 No issue is taken by the Respondent in relation to correspondence. I am, in any event, satisfied that the acts or omissions that constitute the offences on the warrant correspond with offences in Ireland, including:

• a. Assault contrary to Section 2 of the Non-Fatal Offences Against the Person Act, 1997 [ ‘the 1997 Act’];

• b. Assault causing harm contrary to Section 3 of the 1997 Act; and

• c. Causing Serious Harm contrary to Section 4 of the said Act.

13 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 offences meets the requirements of the Act.

GROUNDS OF OBJECTION

14 The Respondent objects to surrender on the following grounds:-

• (i) At grounds 2 and 3 the Respondent raises the arguments which were advanced in the case of McAuley, namely that the amendments effected to the 2003 Act, particular to Section 4A and 22 thereof, by way of secondary legislation in the European Union (European Arrest Warrant Act 2003) (Amendment) Regulations 2021 were ultra vires and are of no lawful effect. Furthermore, no presumption of compliance with the terms of the Trade and Co-Operation Agreement arises, nor can arise as a matter of EU law, following the decision of the CJEU in Alchaster ( Case C-202/24, Alchaster [2024]);

• (ii) His surrender is prohibited under s. 37 of the 2003 Act as, were he to be detained in a UK prison following surrender, there is a real risk of a breach of his rights under the Constitution, European Convention on Human Rights [ ‘ECHR’] and / or Charter on Fundamental Rights of the European Union [ ‘the Charter’];

• (iii) Surrender would constitute a disproportionate interference with his family rights under the Constitution, ECHR and the Charter;

• (iv) If convicted the Respondent will have a sentence imposed which will include a licence regime and during this licence period, he will not be permitted to leave the issuing State. This is a contravention of his rights under Protocols 4 and 12 to the ECHR and provisions of the Charter;

• (v) There is a lack of clarity in the offences to which the Warrant relates

15 The Respondent filed an affidavit, dated the 28 November 2024, for the purposes of a bail application. In that affidavit, having complained about the alleged failure of the Irish Prison Service to provide him with medication on a timely basis or at all, says that he suffers from ongoing mental health issues. He says that he has been taking an antipsychotic medicine, Quetipiane, for some seven years. He further says that he has failed to obtain access to a doctor and psychiatrist whilst in prison in Ireland. Attached to this affidavit are emails between his solicitor and the prison authorities concerning complaints he raised as to the lack of provision of medication whilst detained in prison in this jurisdiction.

16 He lost his mother in unfortunate circumstances and is a father of three children, aged 10, 16 and 21. He is in a long-term relationship with a woman in Cork and his life is in Cork, where he also has access to a doctor, psychiatrist and pharmacist.

Alchaster and TCAWs

17 The Respondent submits that the amendments effected to the 2003 Act, particular to Sections 4A and 22 thereof, by way of secondary legislation in the European Union (...