Minister for Justice v Renner-Dillon

• Jurisdiction: Ireland
• Judge: Mr Justice Finnegan
• Judgment Date: 11 February 2011
• Neutral Citation: [2011] IESC 5
• Court: Supreme Court
• Date: 11 February 2011

Min for Justice v Renner-Dillon

BETWEEN

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

APPLICANT/RESPONDENT

and

JOHN RENNER-DILLON

RESPONDENT/APPELLANT

[2011] IESC 5

Murray C.J.

Denham J.

Finnegan J.

104/10

THE SUPREME COURT

EUROPEAN ARREST WARRANT ACT 2003 S22

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S80

EUROPEAN ARREST WARRANT ACT 2003 S22(7)

EUROPEAN ARREST WARRANT ACT 2003 S41

CRIMINAL JUSTICE ACT 2003 S76(1) (UK)

CRIMINAL JUSTICE ACT 2003 S76(5) (UK)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 3

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 3.2

EUROPEAN ARREST WARRANT ACT 2003 S41

CONVENTION IMPLEMENTING THE SCHENGEN AGREEMENT ART 54

CRIMINAL PROCEDURE ACT 2010 PART 3

CRIMINAL PROCEEDINGS AGAINST PUPINO 2005 ECR I-5285 2006 QB 83 2005 3 WLR 1102 2006 AER (EC) 142

WYLIE JUDICATURE ACTS 1906 795

PHEYSEY v PHEYSEY 1877 12 CH D 305

MCKINNEY (INSPECTOR OF TAXES) v HAGAN'S CARAVANS (MANUFACTURING) LTD 1997 NI 111

ALTARAVICIUS v MIN FOR JUSTICE 2006 3 IR 148

MIN FOR JUSTICE v STAPLETON 2008 1 IR 669

R v GOZUTOK & BRUGGE 2003 CMLR 2

VAN ESBROECK 2006 3 CMLR 6

MANTELLO 2011 2 CMLR 5 2010 AER (D) 199 C-261/09

TURANSKY 2009 2 CMLR 21 C-491/07

VAN STRAATEN v NETHERLANDS 2006 AER (D) 142

1 Judgment of Mr Justice Finnegan delivered on the 11th day of February 2011

2 JUDGMENT DELIVERED BY FINNEGAN, J. [NEM. DISS.]

3 By a European arrest warrant dated 20 ^th November 2007 the United Kingdom sought the appellant's surrender for the purposes of his being charged with an offence of rape the allegation being that on the 13 ^th October 2002 within the United Kingdom he raped one Ashley Carr. By order of the High Court of the 16 ^th January 2008 it was ordered that the appellant be surrendered. On the 3 ^rd June 2008 the appellant pleaded guilty in the United Kingdom to that offence and was sentenced to a term of imprisonment of nine years.

4 On the 17 ^th June 1983 the appellant was acquitted at Newcastle-Upon-Tyne Crown Court of an offence of rape. Particulars of the alleged offence (hereinafter "the offence") were that on the 17 ^th December 1982 the respondent had raped his maternal grandmother Jennifer Anderson. Forensic samples taken at that time were re-examined during 2005 and 2006 and in consequence the prosecuting authorities decided to seek to avail of a statutory entitlement to have the appellant's acquittal quashed and a re-trial ordered. For that purpose the consent of the High Court pursuant to section 22 of the European Arrest Warrant Act 2003 as substituted by the Criminal Justice (Terrorist Offences) Act 2005 section 80 was sought from the High Court. By order dated the 25 ^th March 2010 the High Court (Peart J.) gave consent pursuant to section 22(7) aforesaid to proceedings for the offence of rape alleged to have been committed by the respondent on the 17 ^th December 1982. From that order the appellant appeals to this court. The issue which arises on the appeal is whether the order of acquittal of the 17 ^th June 1983 is a final judgment within the meaning of section 41 of the European Arrest Warrant Act 2003.

Proceedings in the United Kingdom

5 The United Kingdom Criminal Justice Act 2003 section 76(1) provides as follows:-

"A prosecutor may apply to the Court of Appeal for an order -"

(a) quashing a person's acquittal in proceedings within section 75(1), and

(b) ordering him to be re-tried for the qualifying offence."

6 The Chief Crown Prosecutor for North Cumbria, United Kingdom, with the consent of the Director of Public Prosecutions applied to the Court of Appeal of England and Wales (hereinafter "the Court of Appeal") for an order pursuant to section 76(1) for the offence on the basis that there is new and compelling evidence that the appellant is guilty of the offence and that it is in the public interest that the application should proceed. The Court of Appeal delivered judgment on the application on the 25 ^th June 2009. The court was satisfied that in the light of evidence which was not available at the original trial there is now new and compelling evidence and that the interests of justice require that the acquittal should be quashed and a new trial ordered. The court went on to consider the implications of the rule of specialty in that the offence is a wholly different offence to that for which the appellant was surrendered to the United Kingdom. The court was unwilling to make the order sought on the basis of an undertaking by the prosecution not to proceed further with the prosecution of the appellant for the offence unless and until the High Court of Ireland consented to the appellant's prosecution. An alternative that an indictment might be preferred only after the consent of the High Court in Ireland was given likewise did not find favour with the court. As section 76(5) prohibits a second application to quash an acquittal the Court of Appeal adjourned the application to enable the prosecution, if it thought fit, to bring an application to the High Court for consent to the respondent being proceeded against for the offence.

7 The appellant's submissions rely upon a number of matters which appear from the judgment of the Court of Appeal.

8 1. Counsel for the prosecution submitted that no request for consent pursuant to section 22(7) of the European Arrest Warrant Act 2003 (as substituted) could be submitted until the order of acquittal is quashed as it is a final order for all purposes.

9 2. The appellant was charged with the offence and the application was made for an order quashing the acquittal without having first obtained the consent of the High Court of Ireland and in breach of the rule of specialty. In the course of its judgment the Court of Appeal said:-

"...the statutory prohibition against dealing with a person extradited to the United Kingdom from the Republic of Ireland (sic) for any relevant offence other than the one for which he was extradited is express and unequivocal. The defendant was not extradited for the 1982 offence. The speciality rule has not been waived. He may only be dealt with in this country if the High Court in Dublin consents. This is a decision for an independent court in a sovereign country. It is already clear that in the Republic the principle against double jeopardy continues in its full force and an appeal against an acquittal and consequential re-trial not permitted. For the purposes of the High Court in Dublin the acquittal of the defendant in 1983 was indeed a final judgment. However that may be, and however the argument in support of the application for the consent of the court in Dublin may be advanced, the ultimate question is whether the process already undertaken within this jurisdiction in relation to the 1982 offence has already contravened the express provision in section 146(2) of the Extradition Act.

The phrase "dealt with in the United Kingdom" might but would not necessarily involve prior administrative acts such as, for example, the obtaining of the consent of the Director of Public Prosecutions under section 76(3) and (4)of the Criminal Justice Act 2003. However, as it seems to us, to charge the defendant with the offence would probably fall within its ambit. In our judgment, however, an application to this court for an order which involved a judicial act of quashing the defendant's acquittal and for an order for a new trial for an offence for which the defendant had not been extradited would certainly do so. Such an order is a preliminary but absolutely essential step in the process which is intended to and would culminate in the defendant's trial on indictment for the 1982 offence. The offence is therefore being dealt with in our judicial process. The reality is that we cannot press the restrictions contained in the Extradition Act 2003 into conformity with the dilution of the principle against double jeopardy enacted in the Criminal Justice Act 2003."

The Legislative Framework

10 The Framework Decision of 13 ^th June 2002 provides in Article 3 as follows:-

"Article 3

11 Grounds for Mandatory Non-Execution of the European arrest warrant.

12 The judicial authority of the Member State of execution (hereinafter "executing judicial authority") shall refuse to execute the European arrest warrant in the following cases:

13 1. if the offence on which the arrest warrant is based is covered by amnesty in the executing Member State, where that State had jurisdiction to prosecute the offence under its own criminal law;

14 2. if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same Acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State;

15 3. if the person who is the subject of the European arrest warrant may not, owing to his age, be held criminally responsible for the Acts on which the arrest warrant is based under the law of the executing State."

16 For the purposes of this appeal Article 3.2 is the relevant provision. Article 3.2 was transposed into Irish law by section 41 of the European Arrest Warrant Act 2003 which provides as follows:-

17 2 "41(1) A person shall not be surrendered under this Act for the purpose of his or her being proceeded against in the issuing state for an offence consisting of an act or omission that constitutes in whole or in part an offence in respect of which final judgment has been given in the State or a Member State."

18 The rule of specialty is dealt with in section 22 of the European Arrest Warrant Act 2003 as substituted by section 80 of the ...