Minister for Justice v Dundon

JurisdictionIreland
JudgeDenham J.
Judgment Date16 March 2005
Neutral Citation[2005] IESC 13
CourtSupreme Court
Docket Number[S.C. No. 234 of 2004]
Date16 March 2005

[2005] IESC 13

THE SUPREME COURT

MURRAY C.J.

DENHAM J.

McGUINNESS J.

HARDIMAN J.

GEOGHEGAN J.

APPEAL NO. 234/2004
MIN FOR JUSTICE v DUNDON

BETWEEN

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
APPLICANT/RESPONDENT

AND

KENNETH DUNDON
RESPONDENT/APPELLANT

EUROPEAN ARREST WARRANT ACT 2003 S22(1)(b)

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 S16

DPP (IVERS) v MURPHY 1999 1 IR 98 1999 1 ILRM 46

EXTRADITION ACT 2003 S98

EUROPEAN ARREST WARRANT ACT 2003 S1

EXTRADITION ACT 2003 PART 3

EUROPEAN COMMUNITIES ACT 1972

OFFENCES AGAINST THE PERSON ACT 1861 S18

OFFENCES AGAINST THE PERSON ACT 1861 S20

OFFENCES AGAINST THE PERSON ACT 1861 S47

EUROPEAN ARREST WARRANT ACT 2003 S24(1)

HOWARD v COMMISSIONERS OF PUBLIC WORKS 1994 3 IR 394 1994 2 ILRM 301

CRAIES STATUTE LAW 7TH ED P387 1971 P65

DIRECT UNITED STATES CABLE CO v ANGLO-AMERICAN TELEGRAPH CO 1877 2 AC 394

CROSS STATUTORY INTEPRETATION 3RD ED P162

EXTRADITION ACT 1965

EUROPEAN ARREST WARRANT 2003 S12(4)

EUROPEAN ARREST WARRANT 2003 S12(1)

EUROPEAN ARREST WARRANT 2003 S12(10)

CRIMINAL LAW

Extradition

European arrest warrant - Surrender to issuing state - Obligation on issuing authority to provide undertakings - Whether undertakings received amounted to undertakings from judicial authority - Whether personal undertaking of judge required - Whether strength of case against respondent relevant - Whether proceedings brought in wrong name - European Arrest Warrant Act 2003 (Designated Member States) Order 2004 (SI 4/2004) - European Arrest Warrant Act 2003 (No 45), ss 16, 22, 24 and 37 - Extradition order granted - "Given" - "Undertaking" - Literal interpretation - Purposive approach - European Arrest Warrant Act 2003 (No 45), ss 22(1)(b) and 24(1) - (2004/234 - Supreme Court - 16/3/2005) [2005] IESC 13

Minister for Justice, Equality and Law Reform v Dundon

Facts: The High Court had ordered the surrender of the appellant pursuant to section 16 of the Act of 2003 to authorised officers in England in order that he might be prosecuted for the offence of murder. Undertakings were provided by the Parliamentary Under Secretary of State and the Director of Public Prosecutions, as the head of the Crown Prosecution Service of England and Wales as required by the provisions of the 2003 Act. The appellant submitted that the said undertakings were required to be given by the issuing judicial authority personally and accordingly the undertakings provided in this case were not given in accordance with Sections 22(1) and 24(1) of the 2003 Act.

Held by the Supreme Court (Murray C.J., Denham, McGuinness, Hardiman, Geoghegan JJ) in dismissing the appeal:

That the ordinary meaning of the word 'give' was to hand over, to transfer, to deliver. The ordinary meaning of 'given' in the sections 22(1) and 24(1) did not require that the undertaking had to be made by the issuing judicial authority, or given personally, it simply had to be handed over or delivered by such authority. Consequently, the certificate in this case from the issuing judicial authority, with the attached undertakings from the two relevant authorities met the requirements under the Act of 2003.

Reporter: L.O'S.

1

Judgment delivered on the 16th day of March, 2005 by Denham J.

2

1. This appeal raises issues on a European arrest warrant, in particular the undertakings provided by the issuing State pursuant to s.22 (1) (b) and s.24 of the European Arrest Warrant Act, 2003, hereinafter referred to as the Act.

3

2. On the 14th day of May, 2004, the High Court ( Ó Caoimh J.) ordered, pursuant to s.16 of the Act, that Kenneth Dundon, the respondent/appellant, hereinafter referred to as the respondent, be surrendered to named persons duly authorised by Thames Magistrates" Court to receive him. The Minister for Justice, Equality and Law Reform, the applicant/respondent, is hereafter referred to as the Minister.

4

3. On the 29th day of January, 2004 a European arrest warrant was issued by Frances Jane McIvor, a District Judge at Thames Magistrates" Court, London, England, for the arrest of the respondent so that he might be prosecuted in England for the offence of murder. That warrant was faxed to Ireland on the 2nd day of February, 2004, which faxed copy was endorsed for execution in this jurisdiction by a registrar of the High Court. On the 11th day of February, 2004 the respondent was arrested in Limerick by a member of An Garda Síochána acting pursuant to the endorsed warrant and the respondent was then brought to the High Court. On the 14th day of March 2004, the High Court ordered the surrender of the respondent to the authorised officers.

5

4. The key issue on this appeal is the undertakings. On that matter the learned High Court Judge held:-

"The issue arising in this case is whether the undertakings in question required in these sections is to be understood as an undertaking to be given personally by the judge or court concerned that is the issuing judicial authority. I accept as correct, the submission made to this Court that the courts have no function in a decision whether someone will be proceeded with or prosecuted for an offence.

...

I believe that a literal approach to the provisions of s.22 and s.24 gives rise to an absurdity and that the court should apply a purposive interpretation to these sections. In this regard I accept the submissions of counsel for the Minister and I also have regard to cases applying such a rule such as Director of Public Prosecutions (Ivers) v. Murphy [1999] 1 I.R. 98. In applying such an approach I believe that this Court must act upon the undertakings furnished by the issuing judicial authority which have been received in turn from the Director of Public Prosecutions and from the Parliamentary Under Secretary of State. I am also satisfied, having regard to the terms of the Framework Decision itself and in particular Article 28 para 1 thereof, that if this Court is to decide on the surrender of the respondent that it is entitled in its decision to indicate that no consent for the surrender of the respondent to a Member State other than the executing Member State for an offence committed prior to his or her surrender is given. I am further more satisfied that having regard to the provisions of Article 27 that it is clear that in the instant case the respondent may not be prosecuted, sentenced or otherwise deprived of his or her liberty of an offence committed prior to his or her surrender other than for which he is being surrendered. In light of that fact no question arises of this Court giving its consent otherwise. I also take the view that in light of the fact that it is proposed to proceed against the respondent for the offence of murder that this necessarily entails that in the context of the matter going to a jury that a verdict may be returned in relation to a lesser offence as indicated in the undertaking furnished by the Director of Public Prosecutions."

6

5. The respondent has filed a Notice of Appeal against the judgment of the High Court with twenty two grounds of appeal. However, the kernel of the appeal relates to the undertakings required in the Act of 2003.

6. Undertakings in this case
7

In this case the Issuing Judicial Authority certified:

"I, Frances Jane McIvor hereby certify that I have today received written undertakings made by the Parliamentary Under Secretary of State, being the competent authority under section 98 of the Extradition Act 2003, and the Director of Public Prosecutions, as Head of the Crown Prosecution Service of England and Wales, which is responsible for the prosecution of Kenneth Martin Dundon. The undertakings are attached hereto marked "A" and "B".

I hereby order that the attached undertakings be forwarded to the appropriate authorities in Ireland by way of annex to section 1 of the European Arrest Warrant issued by me under Part 3 of the Extradition Act 2003 on 29th January, 2004."

8

The two undertakings are attached to the certificate. The first is from the Parliamentary Under Secretary of State and states:-

"Kenneth Martin Dundon shall not be extradited to a state other than a Member State of the European Communities (within the meaning of the European Communities Act 1972), or Gibraltar without the consent of the Irish High Court and of the Irish Minister for Justice, Equality and Law Reform.

This undertaking is given in accordance with Article 28(4) of the Council of the European Union Framework Decisions on the European arrest warrant and the surrender procedures between Member States.

Given under the hand of the undersigned, one of Her Majesty's Parliamentary Under Secretaries of State, this 17th day of March, 2004."

9

The second undertaking is from the Director of Public Prosecutions for England and Wales. It provides:

UNDERTAKING
10

On 29th day of January 2004 District Judge (Magistrates" Courts) Frances Jane McIvor, sitting at the Thames Magistrates Court, issued a warrant under Part III of the Extradition Act 2003 against Kenneth Martin Dundon. The warrant was issued in respect of an allegation that on 9th October 2003 at 43 Hemsworth Court, Hobbs Place Estate, Hoxton, London N1, England, Kenneth Martin Dundon murdered Christopher Jacobs.

11

The prosecution of the said Kenneth Martin Dundon for the said offence is brought by the Crown Prosecution Service of England and Wales.

12

As head of the Crown Prosecution Service of England and Wales I hereby UNDERTAKE that, in the event of Kenneth Martin Dundon being surrendered to the United Kingdom, Kenneth Martin Dundon will not be proceeded against, sentenced or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his...

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