Minister for Justice v Connolly

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 06 December 2012
• Neutral Citation: [2012] IEHC 575
• Docket Number: Record No. 2010/ 192 EXT.
• Court: High Court
• Date: 06 December 2012

[2012] IEHC 575

THE HIGH COURT

Record No. 2010/ 192 EXT.

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003 AS AMENDED

BETWEEN:

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

MICHAEL CONNOLLY

RESPONDENT

Extradition - European arrest warrant - Rule of specialty - Due consideration - European Arrest Warrant Act 2003 - Extra-territorial offences - Criminal Justice Act 2006

Facts: The respondent was the subject of a European arrest warrant that was issued by Spain on the 24 ^th September 2009 due to alleged offences, notably drug trafficking, that he had committed. He refused to surrender to Spanish authorities and so the applicant brought the matter before the court seeking an order to that effect pursuant to s. 16 of the European Arrest Warrant Act 2003 (‘the 2003 Act’).

It was the respondent”s contention that he should not be surrendered to Spain because the requirements of the 2003 Act had not been satisfied. He alleged that the arrest warrant failed to sufficiently specify the crimes he was alleged to have committed which was in non-compliance with s. 11 of the 2003 Act. He contended that if he was extradited, the vague nature of the allegations meant he would not avail of the rule of specialty before the courts and that this nature meant there would be a possibility he could face further punishments for the same alleged offences in other states. He finally submitted that the arrest warrant”s subject offence should be deemed to be extra-territorial to Spain and so extradition was precluded by s. 44 of the 2003 Act.

Held by Edwards J that s. 11(A)(f) of the 2003 Act requires a European arrest warrant to specify ‘the degree of involvement or alleged degree of involvement of the person’ concerned. The court accepted that the warrant had been drafted in an idiosyncratic manner and that a lot of the evidence outlined against the respondent was circumstantial. However, it was held that there was specific allegations and sufficient information in the warrant that gave the respondent enough clarity to adequately defend against it. Because it had been held that the allegations against the respondent were sufficiently clear, it was held that the grounds that he would not avail of the rule of specialty if extradited and that he faced the possibility of being convicted of the same alleged crimes in other member states, could not be sustained.

The final ground submitted by the respondent was that the subject offence meant extradition was precluded by s. 44 of the 2003 Act. In order to invoke this section, two conditions had to be satisfied: the alleged offences had to be shown to have been committed outside the issuing state and then shown that they were not offences under the law of that state for that reason. It was accepted by both parties that the first condition of this section was satisfied as the alleged acts were committed outside Spain. In relation to the offences, they had been specified as participation in a criminal organisation and illicit trafficking of illegal drugs. The applicant had submitted that in considering the second condition, the court should hold that the alleged acts were offences under Spanish law though committed outside that state because the Irish Courts would have jurisdiction to try the respondent for the statutory inchoate and extra-territorial offence of conspiracy to commit a serious offence under s. 71(1) of the Criminal Justice Act 2006.

The court, accepting the respondent”s submission, held that s. 71(2) and (3) of the Criminal Justice Act 2006 laid out the conditions where s. 71(1) would apply and that the circumstances of the case alleged against the respondent clearly fell outside that remit. The respondent could not be tried extra-territorially for conspiring outside Ireland to commit an offence outside Ireland. The same logic therefore applied to the offence in respect of Spain meaning the application had to be refused.

Application refused.

Mr. Justice Edwards

JUDGMENT of Mr. Justice Edwards delivered the 6th day of December, 2012.

1 1. Introduction:

1.1 The respondent is the subject of a European arrest warrant issued by a judicial authority in the Kingdom of Spain on the 24th September, 2009. The warrant was endorsed for execution by the High Court in this jurisdiction on the 19th May, 2010. The respondent was arrested at the Criminal Courts of Justice, Dublin 7 on the 28th March, 2011 by Sergeant James Kirwan and was brought before the High Court on the same day pursuant to s.13 of the European Arrest Warrant Act, 2003 (hereinafter the Act of 2003).

1.2 The respondent does not consent to his surrender to the Kingdom of Spain. Accordingly, this Court is now being asked by the applicant to make an Order pursuant to s.16 of the European Arrest Warrant Act 2003 as amended (hereinafter the Act of 2003) directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him. In the circumstances the Court must enquire whether it is appropriate to do so having regard to the terms of s.16 of the Act of 2003.

1.3 The respondent, as is his entitlement, does not concede that any of the requirements of s.16 aforesaid are satisfied. Accordingly, as no admissions have been made, the Court is put on inquiry as to whether the requirements of s. 16 of the Act of 2003, both controversial and uncontroversial, have been satisfied and this Court”s jurisdiction to make an order directing that the respondent be surrendered is dependant upon a judicial finding that they have been so satisfied. In addition the Court is required to consider in the particular circumstances of this case certain specific objections to the respondent”s surrender which are pleaded in detail in the Points of Objection that have been filed as follows:

‘1. The European Arrest Warrant fails to specify with a sufficient degree of particularity the criminal acts or omissions alleged against the respondent in respect of which is surrender is sought. Whilst the warrant set out a great amount of detail this largely concerns other suspected persons. It is clear that the warrant purports to allege an offence in rem rather than one in personam. As such a warrant fails to comply with the provisions of Section 11 of the European Arrest Warrant Act, 2003 and is defective. In the premises surrender ought to be refused.

2. By reason of the matters referred to and pleaded at 1 above the respondent, if surrendered, will not be able to avail of the rule of specialty by reason of the unduly broad and vague nature of the allegation against him. In reciting large amounts of extraneous detail at paragraph (e) of the warrant the issuing state has de facto rendered the rule of specialty ineffective as regards the respondent. For the sake of clarity the respondent does not seek to argue that the rule of specialty will not be observed in the event to surrender, but rather that he will not be able to invoke same due to the vagueness of the information already referred to.

3. In addition to being unable to avail of the rule of specialty the respondent will similarly be unable to avail of the prohibition on further prosecution in other member states, in particular the United Kingdom, in the event that he is surrendered for prosecution to the Kingdom of Spain. The same considerations as recited at 2 above will apply mutatis mutandis and the ne bis in idem rule.

4. The offence in respect of which surrender is sought is an extra-territorial offence vis-à-vis the issuing state. The surrender of the respondent is precluded by reason of the provisions of Section 44 of the European Arrest Warrant Act, 2003.’

2 2. Uncontroversial Section 16 Issues

2.1 The Court has received an affidavit of Sergeant. James Kirwan sworn on the 27th May, 2011, and has also received and scrutinised a copy of the European arrest warrant in this case. Moreover the Court has also inspected the original European arrest warrant which is on the Court”s file and which bears this Court”s endorsement. The Court is satisfied following its consideration of this evidence and documentation that:

(a) the European arrest warrant was endorsed for execution in this State in accordance with s.13 of the Act of 2003;

(b) the warrant was duly executed;

(c) the person who has been brought before the Court is the person in respect of whom the European arrest warrant was issued;

(d) the warrant is a prosecution type warrant and the respondent is wanted in the Kingdom of Spain for prosecution in respect of two offences particularised in Part E of the warrant;

(e) no question arises of the respondent having been tried in absentia (as the case is a prosecution case), and accordingly it is not a case in which the court would require an undertaking under s. 45 of the Act of 2003;

(f) Subject to dealing with the specific objection raised in relation to an alleged lack of specificity, the Court is otherwise satisfied that the European arrest warrant in this case is in the correct form.

2.2 In addition the Court is satisfied to note the existence of the European Arrest Warrant Act 2003 (Designated Member States) Order 2004 ( S.I. 4/2004) (hereinafter the 2004 Designation Order), and duly notes that by a combination of s. 3(1) of the Act of 2003, and Article 2 of, and the Schedule to, the 2004 Designation Order, the Kingdom of Spain is designated for the purposes of the Act of 2003 as being a state that has under its national law given effect to Council Framework Decision 2002/584/J.H.A. of 13th June 2002 on the European arrest warrant and the surrender procedures between Member States, O.J. L190/1 18.7.2002 (hereinafter referred to as ‘the Framework Decision’)..

3 3. Correspondence and Minimum Gravity

3.1 This case concerns a conspiracy to conduct drug trafficking and acts done in furtherance of that conspiracy and the...