Minister for Justice v G.A.P.

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 26 July 2017
• Neutral Citation: [2017] IEHC 563
• Docket Number: Record No. 2017 No. 71 EXT
• Court: High Court
• Date: 26 July 2017

[2017] IEHC 563

THE HIGH COURT

Donnelly J.

Record No. 2017 No. 71 EXT

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

G.A.P.

RESPONDENT

Extradition – European Arrest Warrant Act, 2003 – Reversal of decision not to prosecute – Public interest v Family life – Culpable prosecutorial delay.

Facts: The applicant sought the surrender of the respondent on foot of the execution of the European Arrest Warrant ('EAW') for the prosecution of the respondent for an offence of indecent assault in the requesting state. The respondent objected to his surrender on the grounds of delay, reversal of decisions not to prosecute the respondent and personal circumstances comprising of an adult son with mental health difficulties.

Ms. Justice Donnelly granted an order for the surrender of the respondent. The Court held that though there was significant delay of more than 40 years in prosecuting the respondent, yet the public interest warranted that the respondent must be surrendered for the commission of the alleged offence. The Court noted that the appropriate forum to raise the issues of delay and right to fair trial was the Courts of the requesting state. The Court considered the personal circumstances of the respondent and concluded that the public interest demanded that the respondent must be surrendered as there were grave allegations of committing an act of sexual violence with a young child.

JUDGMENT of Ms. Justice Donnelly delivered the 26th day of July, 2017.

1 In the present proceedings, the respondent is sought pursuant to a European Arrest Warrant ('EAW') issued by a judicial authority in the United Kingdom of Great Britain and Northern Ireland ('the U.K.') for the purposes of prosecuting him for a single offence of indecent assault. This is an offence alleged to have occurred some considerable time ago and for which the respondent was questioned by the police in the days following the alleged offence and again in 2014 when he attended a police station in Northern Ireland voluntarily. After each of those periods of questioning, the respondent was informed that no prosecution would be taken against him.

2 The information provided by the U.K. establishes that on review following a complaint from the alleged victim, the Crown Prosecution Service ('CPS') made a decision to prosecute the respondent thereby reversing the decision not to prosecute. Confusion about the date of the alleged offence on the EAW, the reversal of the decisions not to prosecute him, the delay since the alleged offence, and his family and personal circumstances form the basis for the objections to surrender in this case.

A Member State that has given effect to the 2002 Framework Decision

3 The surrender provisions of the European Arrest Warrant Act, 2003, as amended ('the Act of 2003') apply to those member states of the European Union ('E.U.') that the Minister for Foreign Affairs has designated as having, under their national law, given effect to the Council (EC) Framework Decision of 13th June, 2002 (2002/584/JHA) on the European Arrest Warrant and the surrender proceedings between Member States ('the 2002 Framework Decision'). I am satisfied that by the European Arrest Warrant Act 2003 (Designated Member States) Order 2004 ( S.I. No. 4/2004), the Minister for Foreign Affairs has designated the United Kingdom of Great Britain and Northern Ireland as a member state for the purpose of the Act of 2003.

Identity

4 I am satisfied on the basis of the affidavit of Stephen McGonigle, member of An Garda Síochána, the affidavit of the respondent and the details set out in the EAW, that the respondent, G.A.P., who appears before me, is the person in respect of whom the EAW has issued.

Endorsement

5 I am satisfied that the EAW has been endorsed in accordance with s. 13 of the Act of 2003 for execution in this jurisdiction.

Sections 21A, 22, 23 and 24 of the Act of 2003

6 Having scrutinised the documentation before me, I am satisfied that I am not required to refuse the surrender of the respondent under the above provisions of the Act of 2003, as amended.

Part 3 of the Act of 2003

7 Subject to further consideration of s. 37, s. 38 and s. 45 of the Act of 2003 and having scrutinised the documentation before me, I am satisfied that I am not required to refuse the surrender of the respondent under any other section contained in Part 3 of the said Act.

Section 45 of the Act of 2003

8 The respondent is sought for prosecution in this case and therefore the provisions of s. 45 of the Act of 2003, which concern trials in absentia, are not applicable. The surrender of the respondent is therefore not prohibited under s. 45 of the Act of 2003.

Section 38 of the Act of 2003

9 The respondent is sought for the purpose of being prosecuted in the U.K. on one charge of indecent assault contrary to s. 14(1) of the Sexual Offences Act, 1956. This offence carries a maximum sentence of five years imprisonment. The terms of minimum gravity have clearly been met in those circumstances.

10 Correspondence with an offence in this jurisdiction must be established for surrender to be permitted in this case. The allegation is that the respondent, who is a teacher, took the complainant, a ten-year old student, under his wing and indecently assaulted her on one occasion when they were alone in a school staff room by penetrating her vagina with his fingers. Those acts would, if committed in this jurisdiction, amount to an offence of sexual assault contrary to common law and contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act, 1990.

11 The surrender of the respondent is therefore not prohibited by the provisions of s. 38 of the Act of 2003.

The Contested Points of Objection

Section 11(1A)(f) of the Act of 2003

12 This point arises in circumstances where the EAW refers to the alleged offence as having occurred in June/July 1977, but the respondent contended that the date and circumstances of the alleged offence are not correct. The respondent submitted that 'he is a stranger to what happened in June/July of 1977 as outlined in the warrant'.

13 Prior to the EAW being endorsed for execution in this jurisdiction, this Court expressed concerns in relation to the passage of time between the alleged commission of the offence and the issue of the European arrest warrant. This arose in the particular circumstances where the EAW stated on its face that, subsequent to the complainant making her initial complaint, 'the case was closed'. Although there is a reference in the EAW to the respondent being interviewed some time subsequently, there was no explanation as to how or why this happened when 'the case was closed'. The issuing judicial authority replied that the EAW related to an offence committed in 1977 when the alleged victim was aged about ten years of age. It says that the matter was reported at the time but the alleged victim's mother (now deceased) decided that she did not want her daughter to be involved in the investigation.

14 The respondent's affidavit gives a great deal of information about his knowledge of an allegation that was made against him by a particular pupil in his class in the year 1978. On its face, apart from the date and surname of the pupil, this would appear to be the same circumstances as set out in the EAW, although the respondent denies that anything untoward took place. He states that he was arrested and brought to Dagenham police station where he gave a voluntary statement to the police denying any wrongdoing. He states that in August 1978, he was told that the complaint was being taken no further. He refers to the fact that in September 1977, he was to take up a position in a school in Luxembourg and that it was on the penultimate day in the school in Dagenham that he was arrested.

15 The central authority made a last minute request for confirmation of the year of the commission of the alleged offences arising out of the averment by the respondent. With commendable haste the issuing state, through the National Crime Agency, replied as best they could at such short notice. The senior investigating officer was not on duty but a named detective constable confirmed the following information: 'reading the crime report it would appear that the offences ( sic) has occurred in the victim's last year of primary school, this would be September 1977 – August 1978, this appeared to be in the June or July 1978.'

16 The respondent maintains that this confirmation has not provided him with the unambiguous clarity required in EAWs as determined by the Supreme Court (Hardiman J.) in the case of Minister for Justice, Equality and Law Reform v. Connolly [2014] 1 I.R. 720. He submitted that there is still doubt about the date of the offence and the number of those offences.

17 This issue of clarity has been well canvassed before the courts on a number of occasions. The Supreme Court has dealt with it in the case of Minister for Justice, Equality and Law Reform v. Desjatnikovs [2009] 1 I.R. 618, Minister for Justice, Equality and Law Reform v. Stafford [2009] IESC 83 and in the Connolly case cited above. The High Court has also dealt with this issue in a number of cases as well (e.g. Minister for Justice, Equality and Law Reform v. Cahill [2012] IEHC 315).

18 The case law indicates that what is required to be stated in the EAW is a sufficiently precise description of the (alleged) offence(s) so that the court can carry out all of the functions it has under the provisions of the Act of 2003. These include questions of double criminality and the rule of specialty. Furthermore, the arrested person is entitled to be informed of the reasons for his/her arrest and of any charge against him/her so that he/she can be immediately aware in broad outline what it is they have been arrested in relation to. This will allow the requested person challenge his/her...