Minister for Justice v McArdle

• Jurisdiction: Ireland
• Judge: Denham C.J.
• Judgment Date: 25 June 2015
• Neutral Citation: [2015] IESC 56
• Court: Supreme Court
• Docket Number: Record No. 224/2014
• Date: 25 June 2015

Between

Minister for Justice and Equality

Applicant/Respondent

and

Barry McArdle

Respondent/Appellant

And Between

Minister for Justice and Equality

Applicant/Respondent

and

Kenneth Brunnell

Respondent/Appellant

[2015] IESC 56

Record No. 224/2014

Record No. 225/2014

THE SUPREME COURT

Extradition – European arrest warrants – Murder – Appellants seeking to appeal against a High Court order on points of law – Whether High Court was in error in finding that the Public Prosecutor in Amsterdam is a judicial authority

Facts: The appellants, Mr McArdle and Mr Brunnell, were the subjects of European arrest warrants ordered in July, 2011, in the Netherlands by the Public Prosecutor in Amsterdam. Both appellants were sought for the prosecution of the offence of murder. In March, 2014, the High Court ordered the surrender of the appellants. A certificate permitting an appeal to the Supreme Court was issued in the same month. The questions certified as involving points of law of exceptional public importance were the following: 1) Is it necessary, once there is evidence of the existence of a domestic arrest warrant or other orders of a judicial authority having the same effect which is the basis for a European arrest warrant, for the High Court to be satisfied before ordering surrender that the arrest warrant or other order of the judicial authority having the same effect is subject to independent judicial oversight or scrutiny?; 2) If so, is the High Court entitled to presume that the domestic warrant has been the subject of independent judicial oversight or scrutiny for the purpose of a hearing under s. 16 of the European Arrest Warrant Act 2003?; 3) If the answer to questions 1 and 2 is yes, was the High Court correct in concluding that the presumption was not rebutted on the evidence in the present case?

Held by Denham CJ that the Supreme Court did not find that the High Court was in error in finding that the Public Prosecutor in the Netherlands is a 'judicial authority'. Denham CJ agreed with the trial judge that the appellants had not met the burden to address issues which they wished to raise as to the nature of the 'judicial authority' in this case. Denham CJ held that there were no cogent grounds established in this case which could lead the Court to conclude that the issuing authority was not a judicial authority. Denham CJ noted that there is well established jurisprudence in the Supreme Court as to the principles of mutual respect and co-operation in operating the European arrest warrant scheme. In this regard Denham CJ held it to be important to state that the respect and co-operation required is indeed mutual. The trial judge recorded certain comments and observations made by the Public Prosecutor of the Netherlands which were neither the norm in these matters or helpful and the Court endorsed everything said by the trial judge in this regard.

Denham CJ held that the Court would dismiss the appeal. Denham CJ held it to be manifest in the operation of the European arrest warrant in Member States of the European Union that a public prosecutor may be designated as a judicial authority. In the circumstances, having regard to the principles set out in Cilfit, Case 283/81 [1982] ECR 3415, Denham CJ held that there were no grounds for a reference to the European Court of Justice.

Appeal dismissed.

Judgment delivered on the 25th day of June, 2015, by Denham C.J.

1 The appeals brought on behalf of Barry McArdle and Kenneth Brunnell were heard together, and a single set of written submissions on behalf of both of them was filed with the Court. Robert Barron S.C., with him, Ann-Marie Lawlor B.L., appeared for Kenneth Brunnell, and Mr. Barron S.C. moved the opening oral submissions. Mr. Patrick McGrath S.C., with him Ronan Kennedy B.L., appeared for Barry McArdle, and Mr. McGrath made the closing submissions. Mr. Remy Farrell S.C., with him Siobhán Stack S.C., appeared for the Minister for Justice and Equality in both appeals, and filed a single document of written submissions in relation to both appeals.

2 Barry McArdle and Kenneth Brunnell are referred to collectively as 'the appellants'. The Minister for Justice and Equality is referred to as 'the Minister'.

3 The appellants are the subjects of European arrest warrants ordered on the 6th July, 2011, in the Netherlands by the Public Prosecutor in Amsterdam, Mr. W.E. Woudman. Both appellants are sought for the prosecution of the offence of murder.

4 On the 28th March, 2014, the High Court (Edwards J.) ordered the surrender of the appellants.

5 A certificate permitting an appeal to this Court was issued on the 28th March, 2014. The points of law certified as involving points of law of exceptional public importance are as follows:-

(i) Is it necessary, once there is evidence of the existence of a domestic arrest warrant or other orders of a judicial authority having the same effect which is the basis for a European arrest warrant, for the High Court to be satisfied before ordering surrender that the arrest warrant or other order of the judicial authority having the same effect is subject to independent judicial oversight or scrutiny?

(ii) If so, is the High Court entitled to presume that the domestic warrant has been the subject of independent judicial oversight or scrutiny for the purpose of a s. 16 hearing?

(iii) If the answer to questions 1 and 2 is yes, was the High Court correct in concluding that the presumption was not rebutted on the evidence in the present case?

Background facts

6 The facts were stated in the judgment of the learned High Court, which I adopt and set out. In the judgment delivered on the 21st February, 2014, in relation to Barry McArdle, the learned High Court judge stated:-

'The respondent is the subject of a European arrest warrant issued by Mr. M.E. Woudman, Public Prosecutor (Officier van Justitie) at the Public Prosecutor's Office in Amsterdam (Openbaar Ministerie Amsterdam), Netherlands on the 6th July, 2011. The Kingdom of the Netherlands (hereinafter 'the Netherlands') seeks the rendition of the respondent on foot of this warrant for the purposes of prosecuting him for a single offence as particularised therein. The warrant was endorsed by the High Court for execution in this jurisdiction on the 27th July, 2011, and it was duly executed on the same day. The respondent was arrested by Sergeant Sean Fallon on that date, following which he was immediately brought before the High Court pursuant to s.13 of the European Arrest Warrant Act 2003 (hereinafter 'the Act of 2003'). In the course of the s.13 hearing a notional date was fixed for the purposes of s.16 of the Act of 2003. As the respondent was already serving a sentence in respect of a domestic conviction, and did not seek bail, he was remanded in custody to the date fixed. Thereafter the matter was adjourned from time to time, ultimately coming before the Court for the purposes of a surrender hearing.

The respondent does not consent to his surrender to the Netherlands. Accordingly, this Court is now being asked by the applicant to make an order pursuant to s.16 of the Act of 2003 directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him. The Court must consider 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 dependent upon a judicial finding that they have been so satisfied.'

7 The offence is described in the judgment as particularised within the warrant as follows:-

'"Tuesday February 24", 2009 around 13:30 hrs the mortal remains of a man were found in the water of the IJ-meer in Amsterdam near Diemerzeedijk. He resulted to be killed as a result of a crime. The body resulted to be cut into several parts and was wrapped in packing material. From investigation the identity of the victim became known:

Keith Francis ENNIS

born in Dublin on August 5th, 1979.

Research has shown that the crime was committed within the period of February 17, 2009 until February 24, 2009

The identity of Barry Mc Ardle became known from an investigation.

The suspicion of McArdle consists in the following:

• He has stayed in the location which may be considered as the scene of the crime;

• He has probably made use of one of the two telephone numbers which are directly involved in the crime;

• He is directly related to the other suspects of this offence;

• Forensic traces;

• Statements that the suspect had committed the crime.

There is no reason, upon a consideration of the underlying facts as set out above, to believe that the ticking of the box relating to "murder, grevious bodily injury" was in error.'

8 During the pre-hearing period the appellants filed initial points of objection. Arising from these the Minister sought the following information, inter alia, which was described by the learned judge as:-

'In order to clarify the position in this case we require the following information:

(i) Has a decision been made to charge (indict) the requested person? If so is the charge (indictment) reflected in any summons, indictment or other formal document? If it has please provide a copy of this document.

(ii) If a decision to charge (indict) the requested person has been made, does this mean that a decision has also been made to put the requested person on trial?

(iii) Does a decision to put the person on trial have to be made separately from the decision to charge (indict) him/her and, if so, has a decision been made in this case to put the person on trial?

It would also be helpful if you could provide any other information that you feel might be useful in addressing this issue.'

9 After a number of reminders, a short reply was received from the issuing...