Minister for Justice v AM

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 14 October 2016
• Neutral Citation: [2016] IEHC 568
• Court: High Court
• Docket Number: [2015 No. 215 EXT]
• Date: 14 October 2016

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

A.M.

RESPONDENT

[2016] IEHC 568

Donnelly J.

[2015 No. 215 EXT]

THE HIGH COURT

Extradition – Request to surrender – Allegations of sexual assault – European Arrest Warrant Act, 2003, as amended – Legality of the European Arrest warrant (EAW) – Art. 8 of the European Convention of Human Rights (ECHR) – Public interest – Delay and prejudice – Fundamental rights

Facts: The issuing state/United Kingdom (U.K.) sought the arrest and surrender of the respondent under the EAW for criminal prosecution of sexual offences. The respondent contended that his surrender would in breach of art. 8 of the ECHR, which guaranteed respect for personal and family life. The respondent further contended that by reason of delay since the date of the alleged offences and the prejudice he had suffered thereby, his right to a fair trial would be violated. The respondent argued that by reason of UK leaving the European Union, there would be a risk of the breach of the respondent's fundamental rights.

Ms. Justice Donnelly made an order under s. 16 of the EAW Act 2003 for the surrender of the respondent to the person duly authorised by the requesting state to receive the respondent. The Court held that there was correspondence between the offences for which the respondent was sought in the requesting state and offences in the present jurisdiction. The Court held that there was an extremely high public interest in bringing those accused of sexual abuse allegations to trial. The Court found that since the present case was a case of alleged historic sexual abuse of children, there might be reasons for a complainant to delay in reporting the matter to the investigating authorities. The Court found that the respondent did not give any evidence to suggest the respondent would not be entitled to raise issues of delay and prejudice by reason of delay to the requesting state on surrender. The Court held that the respondent did not provide evidence that risk of a future exit from the E.U.by the U.K. gave rise to a risk of breach of fundamental rights that would require the Court to refuse extradition.

JUDGMENT of Ms. Justice Donnelly delivered the 14th day of October, 2016.

1 On 16th September, 2015 a judicial authority of the United Kingdom (‘U.K.’) issued a European Arrest Warrant (‘EAW’) for the arrest and surrender of the respondent for criminal prosecution. It is alleged that the respondent committed nine sexual offences against his niece between 1960 and 1967 when she was aged between about two years and fourteen years. His surrender is also sought in respect of an alleged single count of indecent assault against a separate then thirteen year old niece in the early 1970s.

2 The respondent objects to his surrender on a number of grounds. A central objection is that the respondent says that surrender would breach his right to respect for his personal and family rights under Article 8 of the European Convention on Human Rights (‘ECHR’). He also claims that, due to the delay since the date of the alleged offences and the prejudice he has suffered thereby, his right to a fair trial will be violated. Just prior to the date listed for hearing of this matter, the U.K. held a referendum in which a majority voted in favour of leaving the European Union (‘E.U.’). It is common knowledge that no formal step has been taken by the U.K. to trigger her exit from the E.U., nonetheless the respondent claims that the present situation has implications for his surrender. The respondent submitted that there are implications for the court's assessment of his right to a fair trial, in particular with respect to the issue of delay, because the principles of mutual trust which underpin the Council (EC) Framework Decision of 13th June, 2002 (2002/584/JHA) on the European arrest warrant and the surrender procedure between Member States (‘the 2002 Framework Decision’) will no longer apply in the event of the U.K.'s exit from the European Union. He also claims that specific guarantees granted by the 2002 Framework Decision, for example, on the rule of speciality, will no longer be protected.

Section 16 of the European Arrest Warrant Act, 2003, as amended

Uncontentious issues

Identity

3 I am satisfied on the basis of the affidavit of Sgt. Seán Fallon, member of An Garda Síochána, the affidavit of the respondent and the details set out in the EAW that the respondent, A.M., who appears before me, is the person in respect of whom the EAW has issued.

Endorsement

4 I am satisfied that the EAW has been endorsed in accordance with s. 13 of the European Arrest Warrant Act, 2003, as amended (‘the Act of 2003’) for execution.

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

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

Part 3 of the Act of 2003

6 Subject to further consideration of s. 37 and s. 38 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.

Contentious Issues

Section 38 of the Act of 2003

7 Two of the offences alleged against the respondent concern rape and attempted rape. The issuing judicial authority has ticked the ‘box’ listing rape at point E.I. of the EAW and in doing so, is relying on the list offences set out in Article 2.2 of the 2002 Framework Decision; therefore dual criminality is not required to be proven for these particular alleged offences. The offence of rape and attempted rape carry a maximum sentence of imprisonment of greater than three years and minimum gravity is thereby satisfied. In those circumstances, where there is no manifest error in the reliance on Article 2.2 of the 2002 Framework Decision, the respondent's surrender is not prohibited by s. 38 of the Act of 2003 in relation to these two alleged offences.

8 There are also six offences of indecent assault alleged against the respondent in respect of both his nieces, each of whom were under the age of thirteen years at the time of the alleged offences. The details in the EAW expressly state that he indecently assaulted these children under the age of thirteen. The EAW also gives further detail as to the specific nature of the indecent assaults which it is unnecessary to outline here. I am quite satisfied that if these acts were committed in the State on the date in which the EAW was issued, they would constitute offences of sexual assault. The alleged offences are punishable in the U.K. by imprisonment for a maximum period of not less than 12 months (the maximum sentence of imprisonment outlined in the EAW in relation to these offences is 5 years). In all the circumstances, the respondent's surrender on these six allegations of indecent assault is not prohibited by s. 38 of the Act of 2003.

9 The final two offences allege indecency with a child. In particular, it is alleged that the respondent committed acts of gross indecency with or towards a child between the ages of 3 and 6, for the first such offence, by masturbating onto her, and, for the second such offence, by forcing her to touch his penis. These offences also carry, in the U.K., sentences of imprisonment for a maximum period of not less than 12 months (the maximum sentence of imprisonment outlined in the EAW in relation to these offences is 2 years).

10 An issue was raised with respect to correspondence on the basis that no assault was being alleged. It certainly seems to the Court that, in the second of the two allegations of indecency with a child, wherein it is stated that the respondent forced the complainant to touch the respondent's penis, there exists an element of assault. To place a person in fear that he or she is likely immediately to be subjected to force or impact on his or her body is an assault. To do so in circumstances of indecency is a sexual assault. The word ‘force’ in this EAW must be given its plain and ordinary meaning in the context in which it arises. There is no doubt that the use of the word ‘force’ here is used in the context of an assault being perpetrated on the child. A child under the age of 15 years cannot consent to a sexual assault. In the circumstances, this alleged act, if committed in this State, would also constitute a sexual assault.

11 It is unnecessary to consider if the first of the two allegations of gross indecency amounts also to an assault because I am satisfied that the particular allegations of gross indecency set out in the EAW, correspond with other offences in this jurisdiction. I am quite satisfied that these allegations, if committed in the State on the date of issue of the EAW, would constitute an offence of sexual exploitation of a child contrary to s. 3(2)(a) of the Child Trafficking and Pornography Act, 1998 (‘the Act of 1998’). Sexual exploitation means in relation to a child, inter alia, inviting, inducing or coercing the child to engage or participate in any sexual, indecent or obscene act or inviting, inducing or coercing the child to observe any sexual, indecent or obscene act for the purpose of corrupting or depraving the child. The details of the alleged offence, especially in light of the age of the child and the activity at issue, amount by necessary implication to sexual exploitation within the meaning of s. 3 of the Act of 1998.

12 Finally, I am satisfied that these allegations of gross indecency would, if committed in the State on the date of the issue of the EAW, amount to offences contrary to s. 246(1) of the Children Act, 2001, amounting to wilfully exposing the child in a manner likely to cause unnecessary suffering or injury to the child's health or seriously to effect her well-being. I am satisfied that the allegation is...