Minister for Justice v McGrath

JurisdictionIreland
JudgeMacken, J
Judgment Date16 March 2005
Neutral Citation[2005] IEHC 116
CourtHigh Court
Docket Number[2004 No. 35 Ext.]
Date16 March 2005

[2005] IEHC 116

THE HIGH COURT

No. 35 Ext/2004
MIN FOR JUSTICE v MCGRATH

BETWEEN

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
APPLICANT

AND

CATHAL McGRATH
RESPONDENT

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 1

TREATY OF ROME ART 6

EUROPEAN ARREST WARRANT ACT 2003 S9

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16(1)(a)

EUROPEAN ARREST WARRANT ACT 2003 S15

DOOLAN v DPP 1992 2 IR 399 1993 ILRM 387

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S24

CROWLEY & ANOR v MCVEIGH 1990 ILRM 220 1989 IR 73

EUROPEAN ARREST WARRANT ACT 2003 S12(9)

MIN JUSTICE v GOKANO (ORSE BITA) 2004 3 IR 216

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002

(EUROPEAN ARREST WARRANT ACT 2003) ART 2

AG v PARKE UNREP SUPREME 6.12.2004 2004/3/577

WYATT v MCLOUGHLIN 1974 IR 378

EXTRADITION

European arrest warrant

Nature of inquiry - Proofs - Sufficiency -Standard of proof - Identity of person sought- Whether sufficient evidence furnished by issuing authority - Whether court entitled to make its own inquiry - Whether court satisfied as to identity - Wyatt v McLoughlin [1974] IR 378 and AG v Parke [2004] IESC100 (Unrep, SC, 6/12/2004) followed; Crowley v McVeigh [1989] IR 73 distinguished - European Arrest Warrant Act2003 (No 45), s 16(1) - Surrender refused(2004/35Ext - Macken J - 16/3/2005) [2005]IEHC 116, [2006] 1 IR 321

MIN FOR JUSTICE v MCGRATH

This was an application pursuant to the provisions of s. 16 of the European Arrest Warrant Act 2003 for the surrender of the respondent to the United Kingdom pursuant to a European arrest warrant.

Held by Macken J. in rejecting the application that the Court was not satisfied in accordance with s. 16 of the Act of 2003 that the respondent was the person in respect of whom the warrant was issued.

Reporter: R.W.

1

JUDGMENT of Macken, J. delivered on the 16th day of March, 2005

2

This is an application pursuant to the provisions of s. 16 of the European Arrest Warrant Act, 2003 (hereinafter referred to as "the Act of 2003"), for the surrender of the respondent to the United Kingdom, pursuant to a European Arrest Warrant.

3

The Act of 2003 gave effect to a Framework decision of the Council of the European Communities, of 13th June, 2002 on the European Arrest Warrant and provided for a procedure to exist in that regard between member States of the European Union. The terms of the Council Framework decision are set out in the schedule to the Act of 2003. The definition of the European Arrest Warrant and the obligation to execute it which appear in Article 1 of the Framework Decision itself are set out as follows:

4

2 "1. The European Arrest Warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

5

2. Member States shall execute any European Arrest Warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.

6

3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on the European Union."

7

To understand the manner in which the system works, certain terms should be noted. The warrant is issued by an "issuing authority" which is a judicial authority in the Member State which issues the warrant seeking to have the person surrendered. The warrant, which is in a technical format, is sent to the authorities in the country from which the person named is sought to be surrendered. In this jurisdiction the Minister for Justice Equality and Law Reform is the "central authority", within the meaning of the Framework decision, as implemented by the Act of 2003. The High Court is designated, pursuant to s. 9 of the same Act, as the "executing judicial authority" in the State. The central authority, that is to say, the Minister, makes an application to the High Court to have the European Arrest Warrant or a facsimile copy of the warrant endorsed for execution and it may then be executed pursuant to the Act of 2003, by a member of An Garda Siochana.

8

Further, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, and may not be handed over to a non Member State, save with special permission of the courts in the executing state. In that regard, the Framework decision provides for certain undertakings to be made available by the issuing authority, in conjunction with the warrant.

9

For the purposes of this case, the issuing Member State authority is the United Kingdom.

The Facts
10

On 12th October, 2004, Christopher Leslie Pratt, a District Judge of the Magistrates' Courts, at 28 Bow Street, London WC2E 7AS, England, in his capacity as a competent judicial authority, issued a European Arrest Warrant for the arrest and surrender of a person named in the warrant for the stated purposes of conducting a criminal prosecution and/or sentencing following conviction or of executing a custodial sentence or detention order. In the present case it is clear that the primary purpose is to prosecute the person sought.

11

The warrant, in facsimile copy form, was endorsed for execution in this jurisdiction by Order of The High Court (Peart, J.) dated 7th October, 2004.

12

Following the said endorsement, the warrant was executed in Co. Donegal on 18th October, 2004 by a member of the Crime Branch, Garda Headquarters, Sgt. Martin O'Neill, who on that date arrested the person whom he believed at the time to be the person named in the warrant, who was then held at Buncrana Garda Station overnight, and on 19th October was brought before the High Court in accordance with the provisions of s. 13 of the Act.

13

On that occasion, this Court, being then satisfied that the person arrested and brought before the Court was the person in respect of whom the European Arrest Warrant was issued, remanded the respondent on bail..

14

The offences specified in the warrant are those of rape, indecent assault and gross indecency against a girl under the age of 14, in the United Kingdom. The rape offences carry a sentence of life imprisonment, the indecent assault offence 10 years and the gross indecency offences 2 years to 10 years depending on the dates of the offences.

15

Section 16(1)(a) of the Act of 2003 provides as follows:

"(1) Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under s. 15(9), the High Court may, upon such date as is fixed under s. 13, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her"

16

provided that -

17

(a) the High Court is satisfied that the person before it is the person in respect of whom the European Arrest Warrant was issued (emphasis added)

18

The respondent did not consent to his surrender. Points of Objection dated 8th November, 2004 were delivered and filed on his behalf, and the respondent swore an affidavit on 9th November, 2004. In the Points of Objection the respondent pleads inter alia, that:

19

(a) the warrant is fundamentally defective and/or bad on its face, in particular because

20

(i) s. (a) of the warrant contains details that are factually incorrect and refers to documentation that is either defective, unsupported or unsubstantiated,

21

(ii) it relates to a person other than the respondent, and

22

(iii) details on the copy warrant furnished are illegible.

23

(b) the warrant is bad and defective in that it lists among the offences those of gross indecency for which there is no corresponding offence in Irish law.

24

(c) there is no evidence of the decision supporting the purported warrant in

25

that no copy of the warrant of arrest dated 26th February, 2004, issued at Basingstoke Magistrates Court, referred to in s. (b) as being the decision on which the warrant in the present proceedings was based was made available..

26

Insofar as the respondent's affidavit is concerned, the salient parts of this concern the dates of birth given, and the photograph relied upon by the applicant. He denies that he has ever used the date of birth in 1933 appearing in the warrant, and he also denies that the person in the photograph attached to the warrant is him.

27

Before dealing with the legal submissions on behalf of the respective parties, there are two further matters I wish to refer to. The first concerns the above affidavit of Sgt. O'Neill sworn on a date in October and filed on the 29th October 2004. Since the key issue in these proceedings is whether the respondent is in fact the person in respect of whom the warrant has issued, I should set out relevant passages in the affidavit of Sgt. O'Neill. He stated, inter alia:

28

2 "3. On 18th October, 2004 I was on duty in the Burt area of County Donegal and had the European Arrest Warrant for the arrest of Cathal Mc Grath in my possession. The warrant had been received from the United Kingdom authorities and had been endorsed by the High Court for execution.

29

4. I went to an address at 291 Moness, Burt, County Donegal. There I met a man whom I believed to be Cathal McGrath. I introduced myself to him by producing and showing him my official Garda identification card and telling him my name, rank and station.

30

5. I asked him "are you Cathal McGrath?" to which he replied "Yes." I then asked him "is your date of birth 19th February, 1953?" to which he replied "Yes."...

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