Minister for Justice v McCague

JurisdictionIreland
JudgeMr Justice Michael Peart
Judgment Date30 May 2008
Neutral Citation[2008] IEHC 154
CourtHigh Court
Docket Number[2006 No. 122 Ext]
Date30 May 2008

[2008] IEHC 154

THE HIGH COURT

Record Number: No. 122 Ext./2006
Min for Justice v McCague

Between:

Minister for Justice, Equality and Law Reform
Applicant

And

Thomas Martin McCague
Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2.2

CRIMINAL JUSTICE ACT 1984 S13

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 PART III

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(a)

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(b)

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(b)

BOLGER v HAUGHTON & ORS UNREP PEART 28.10.2005 2005/5/882 2005 IEHC 364

POITRIMOL v FRANCE 1993 18 EHRR 130

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN ARREST WARRANT ACT 2003 S37

SEJDOVIC v ITALY 2006 42 EHRR 360

SOERING v UNITED KINGDOM 1989 11 EHRR 439

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

COLOZZA v ITALY 1985 7 EHRR 516

FCB v ITALY 1992 14 EHRR 909

ZANA v TURKEY 1999 27 667

MIN JUSTICE v STAPLETON UNREP SUPREME 26.7.2007 207 IESC 30

MIN JUSTICE v BRENNAN 2007 2 ILRM 241

EUROPEAN ARREST WARRANT ACT 2003 S3

EUROPEAN ARREST WARRANT ACT 2003 S16

HUMAN RIGHTS ACT 1998 (UK)

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 5.1

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) PREAMBLE RECITAL 12

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN ARREST WARRANT ACT 2003 S45(b)(ii)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 5

TREATY ON EUROPEAN UNION 1992 ART 6

EUROPEAN ARREST WARRANT ACT 2003 S22(5)

EUROPEAN ARREST WARRANT ACT 2003 S4A

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 27.3

EUROPEAN ARREST WARRANT ACT 2003 S22(6)

EXTRADITION

European Arrest Warrant

Trial in absentia - Mutual recognition - Refusal to adjourn trial - Extension of time to appeal - Right to fair hearing - Sentence hearing - Confiscation order - Whether surrender should be refused - Whether remedy for breach of rights exist - Whether decision to proceed in absence violated right to fair trial - Whether obligation to notify of trial date encompasses obligation to notify of sentence hearing - Whether undertaking required - Whether confiscation order amounted to prosecution for offences other than specified in warrant - Minister for Justice v Brennan [2007] IESC 21, [2007] 3 IR 372 and Minister for Justice v Stapleton [2007] IESC 30, [2008] 1 ILRM 267 applied - European Arrest Warrant Act 2003 (No 45), ss 22, 37 and 45 - Council Framework Decision 2002/584/JHA, articles 5.1 and 27.3 - Surrender ordered (2006/122EXT - Peart J - 30/5/2008) [2008] IEHC 154

Minister for Justice, Equality and Law Reform v McCague

Facts: The surrender of the respondent was sought on foot of a European arrest warrant which issued in the UK. The respondent was tried, convicted and sentenced in his absence. The respondent contended that the fact the trial judge failed to adjourn the trial in the face of medical evidence and evidence of threats breached his constitutional rights and rights under the European Convention on Human Rights. It was further contended inter alia that the failure of the Crown Court to notify the respondent of his sentence hearing denied to him a fair hearing and infringed s. 45 of the Act of 2003. The respondent also contended that there was a breach of the rule of specialty.

Held by Peart J. in making the order for surrender that the respondent was fully represented by both solicitor and counsel when he sought an adjournment and it had to be presumed that the procedures available in the issuing state met the minimum standards guaranteed under the Convention. The right to be present at a sentence hearing, separate from the right to be present at trial, did not come into play under s. 45 of the Act of 2003. The Court was entitled to presume that the issuing state would comply with its obligations under the Framework Decision.

Reporter: R.W.

1

Mr Justice Michael Peartdelivered on the 30th day of May 2008:

2

The surrender of the respondent is sought on foot of a European arrest warrant which issued in the United Kingdom on the 18 th August 2006. That warrant was duly endorsed here for execution here on the 19 th September 2006, and the respondent was arrested on foot of same on the 31 st July 2007, and brought before the Court as required by s. 13 of the European Arrest Warrant Act, 2003, as amended. Thereafter he was remanded on bail from time to time pending the determination of this application for his surrender.

3

The respondent's surrender is sought, firstly, so that he can serve two sentences of five years imposed in respect of two offences, namely conspiracy to fraudulently evade excise duty, and conspiracy to conceal or transfer the proceeds of criminal conduct, and secondly so that he can face prosecution for a third offence, namely for failure, without reasonable excuse, to surrender to the custody of the Crown Court. The first two named offences are ones which have been marked on the warrant as being offences coming within the list of offences in Article 2.2 of the Framework Decision as being those in respect of which double criminality does not require to be verified. The third offence is one which I am satisfied corresponds with an offence in this State, namely one under s. 13 of the criminal Justice Act, 1984. The latter offence satisfies the minimum gravity requirement under the Act, and the sentences remaining to be served in respect of the first two offences satisfy the minimum gravity requirement also.

4

Subject to addressing the Points of Objection pursued on this application, I am satisfied that the respondent is the person in respect of whom this European arrest warrant has been issued. I am also satisfied that there is no reason under Sections 21A, 22, 23 or 24 of the Act to refuseto order surrender, and that his surrender is not prohibited by any provision of Part III of the Act, or the Framework Decision.

5

The respondent was tried, convicted and sentenced in his absence in respect of the two offences for which he has already been sentenced. His trial had been fixed for hearing on the 10 th January 2005. The respondent had pleaded not guilty, and in his Defence statement had indicated the basis of his defence as being that he had been confused with his uncle Thomas McCague senior. This is the defence which he proposed mounting at his trial. However, in the days immediately preceding his trial his lawyers applied for an adjournment of the trial, having received instructions from him that he was medically unfit to attend his trial as he was "suffering from depression, anxiety and gallstone pain". In addition it appears that he informed his solicitor that he had been informed by the Police Service of Northern Ireland on the 30 th December 2004 that there was a paramilitary threat against his life if he attended his trial and gave evidence against his uncle. His solicitor has exhibited a copy of as police message dated 30 th December 2004 which reads:

6

"Anon male reports to Newry Samaritans "Tommy McCague from Armagh is giving evidence against an uncle and he overheard a conversation that the RA were for doing something".

7

The respondent instructed his solicitor also that he had received a bullet in the post together with a Mass card on the 7 th January 2005. In this regard the respondent has filed an affidavit sworn by his Parish Priest in Dungannon who states that he recalls being contacted by the respondent in early January 2005, and that when he called to the respondent's home he appeared to be greatly shocked and showed him a Mass card and a bullet which had been posted through the letter-box of his home. He states further that he is in no doubt that the respondent was genuinely in fear for himself and his family, and that he immediately went to the local police station in Armagh and gave them the card and the bullet and told them what had happened.

8

The respondent's solicitor has averred that on the 10 th January 2005 he and counsel attended at the Crown Court for the trial, but that by reason of his medical condition and these threats the respondent was not present. His solicitor spoke to the police at Armagh who confirmed that the bullet and Mass card had been handed into Armagh police station. He had also contacted the respondent's general practitioner and received some medical reports in relation to the respondent. These have been exhibited and refer to anxiety, depression and abdominal pain, and that gallstones were diagnosed on the 15 th October 2004 for which the respondent was awaiting treatment by means of cholecystectomy. These reports stated also that therespondent was believed to be unfit to travel to Great Britain, and that it was not possible to predict when he might be in a position to do so.

9

This material was submitted to the Crown Court on the 10 th January 2005, whereupon the judge adjourned the matter to the following day, the 11 th January 2005, so that arrangements could be made to have the respondent independently medically examined. Three appointments were set up both in Craigavon and in Belfast, but the respondent failed to attend either appointment. On the 11 th January 2005 the respondent informed the solicitor that he was unwilling to attend any of these appointments out of fears for his safety. His solicitor was also provided with further disclosure by the prosecution that...

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