Minister for Justice v Biggins

JurisdictionIreland
CourtHigh Court
JudgeMr Justice Michael Peart
Judgment Date08 November 2006
Neutral Citation[2006] IEHC 351
Date08 November 2006
Docket NumberRecord Number: No. 111 Ext./2006

[2006] IEHC 351

THE HIGH COURT

Record Number: No. 111 Ext./2006
MIN FOR JUSTICE v BIGGINS

Between:

Minister for Justice, Equality and Law Reform
Applicant

and

Bernard Martin Biggins
Respondent

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

DPP v KEMMY 1980 IR 160

AAMAND v SMITHWICK 1995 1 ILRM 61

SLOAN v CULLIGAN 1992 1 IR 223 1992 ILRM 194

EUROPEAN ARREST WARRANT ACT 2003 S11(1)(d)

MIN FOR JUSTICE v RODNOV UNREP SUPREME 1.6.2006

EUROPEAN ARREST WARRANT ACT 2003 PART 3

EUROPEAN ARREST WARRANT ACT 2003 S37

MIN FOR JUSTICE v DUNDON 2005 1 IR 261 2005 2 ILRM 149

HOWARD v COMMISSIONERS OF PUBLIC WORKS 1994 1 IR 101

O'ROURKE v GOVERNOR OF CLOVERHILL PRISON & AG 2004 2 IR 456

OXFORD ENGLISH DICTIONARY "CONNECT"

OXFORD ENGLISH DICTIONARY "CONNECTED WITH"

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 23

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

MAXWELL INTERPRETATION OF STATUTES 12ED 29

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

MACMANAWAY, IN RE 1951 AC 161

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE NAUGHTON 1997 1 AER 426

AG v GILLILAND 1985 IR 643

EUROPEAN ARREST WARRANT ACT 2003 S16(4)

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16(4)(b)

CONSTITUTION ART 40.4.2

EUROPEAN ARREST WARRANT ACT 2003 S16(5)(a)

EUROPEAN ARREST WARRANT ACT 2003 S16(3)

EXTRADITION ACT 1965 PART II

EXTRADITION ACT 1965 S 29(1)

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

CONSTITUTION ART 29.4.6

Abstract:

Criminal law - Extradition - Surrender - Inchoate offences - Interpretation - Whether correspondence of an inchoate offence was established - Whether the surrender of the respondent ought to be refused on the basis that his surrender was sought in relation to an offence alleged to have been committed against his partner and further on the basis that he would be remanded in custody pending his surrender.

Facts: The surrender of the applicant was sought by the appropriate judicial authority in Scotland for the purposes of prosecuting him for the offence of “assault to injury and attempt to murder”. The requesting authority ticked the box in the warrant beside the words “murder, grevious bodily harm”, so as to indicate that the offence was one in respect of which double criminality did not have to be verified, pursuant to the provisions of Article, 2.2 of the Framework Decision of 13/01/02. It was argued on behalf of the respondent that the box ticked in the warrant did not provide for the inchoate offence of attempted murder and therefore correspondence ought to have been made out. It was also argued that the respondent’s surrender was prohibited by Part 3 of the Act and in particular section 37 because his surrender was sought for the purpose of prosecution for an offence alleged to have arisen out of his relationship with his partner and therefore was an offence “connected with his ..sex…”. Furthermore, it was submitted on behalf of the respondent that the making of an order under s. 16 of the Act would result in the unconstitutional detention of the respondent, as there was no possibility under the section of the respondent obtaining bail pending his surrender.

Held by Peart J. in ordering the surrender of the respondent:

1. That there was no deviation from the requirements of the prescribed form of warrant or the requirements of the framework decision in any way which affected its substance or effect. Where the offence specified in the warrant is inchoate in nature, it makes complete sense that the double criminality which is relevant, and which does not require verification, is that of the substantive offence and not the inchoate offence.

2. That the interpretation of s.37 urged upon by the respondent would result in an absurdity arrived at by an interpretation so literal, and out of context, that it could not be open to the respondent. Having referred to the words of the Framework Decision, the context of the words “connected with” contained in section 37 of the Act clearly related to discrimination on the grounds of sex and did not extend to the situation contended for by the respondent in this case.

3. That the taking of the respondent into custody pending his surrender did not constitute a ground for refusing to make an order for surrender. The Court was required to detain a respondent pending his surrender under the provisions of the Act and the Act enjoyed the presumption of constitutionality. The constitutionality of the Act was not challenged in this case.

Reporter: L.O’S.

Judgment of
Mr Justice Michael Peart
1

The surrender of the respondent is sought by the appropriate judicial authority in Scotland, namely a Sheriff at Glasgow Sheriff Court, who issued a European arrest warrant dated 17th August 2006. The warrant was endorsed for execution by the High Court here on the 5th September 2006, and the respondent was arrested duly on the 8th September 2006 and thereafter brought before the High Court as required under the Act. The offence for which he is sought to face trial is one described in the warrant as "assault to injury and attempt to murder".

2

No issue is raised as to the identity of the respondent, and I am satisfied from the affidavit evidence of Sgt. Linehan, the arresting officer that the person before the Court on this application is the person in respect of which this arrest warrant has been issued. I am also satisfied that at the time of arrest and thereafter, Sgt. Linehan complied with the requirements of the Act.

3

As far as correspondence is concerned, the requesting authority has ticked the box in paragraph (e) of the warrant beside the words "murder, grievous bodily harm", so as to indicate that the offence for which he is sought is one in respect of which double criminality does not have to verified, pursuant to the provisions of Article 2.2 of the Framework Decision of 13th January 2002. It will be noticed that the box concerned refers to "murder" and not to "attempt to murder". An issue has been raised in relation to this, and which I will deal with in due course. The offence is nevertheless of the required minimum gravity.

4

The domestic warrant on foot of which the European arrest warrant issued is one dated the 4th October 2004. It issued in circumstances where the respondent had, following his arrest, been remanded in custody. Thereafter he appeared in custody before the Court on the 7th November 2003, when he was granted bail on certain conditions, and was remanded to appear again on the 4th October 2004. He failed to appear and the Court issued what in this jurisdiction would be commonly called a bench warrant.

5

It follows that this is not a case in which any undertaking is required under s. 45 of the Act before the Court may make the order for surrender. Subject to dealing with the Points of Objection raised by the respondent and the submissions urged on his behalf by Kieran Kelly BL, I am satisfied that the Court is not required under sections 21A, 22, 23, or 24 of the Act to refuse to order his surrender, and that his surrender is not prohibited by anything in Part III of the Act or the Framework Decision.

6

Before dealing with the points raised, I will set out a brief resumé of the alleged facts of the case as they appear in the European arrest warrant. The respondent and his partner and her 7 month old baby resided together at an address in Glasgow. It is alleged that they had a row during which the respondent approached her from behind, grabbed her by the throat, and tightened his grip so that she became unconscious. She recalls him saying to her during this incident"I'm going to leave you something to remember me by", before applying further pressure to her neck. The police noticed a redness on the neck of the victim following her complaint. These facts are what has given rise to the alleged offence of "assault to injury and attempt to murder" referred to in the warrant.

7

There are a number of issues raised by the respondent. I will deal with them in the order in which there were argued before me.

8

1. The offence is one of “assault to injury and attempt to murder, whereas the box ticked for the purpose of correspondence is “murder and grievous bodily injury”, and therefore there has been a failure to comply with the requirements of the prescribed form of warrant contained in the Framework Decision.

9

Mr Kelly points to the obvious fact that in this case there was no “murder” yet this is the box that has been ticked in part (e) of the warrant. He submits that inchoate offence of “attempted murder” is not provided for, and that therefore correspondence ought to have been made out, and the fact that it has not been is a failure to comply with the strict terns of the Framework Decision and the Act. He has urged that the Courts have consistently required that penal statutes be strictly complied with, and that this requirement cannot be expected to or required to yield to any principle of international comity. He has referred to the judgment of the Supreme Court inDPP v. Kemmy [1980] IR 160, as well as to that Court's judgment in Aamand v. Sloane [1995] 1 I.L.R.M. 61, as well as the judgment of Finlay CJ in Sloan v. Culligan [1992] I.L.R.M. 194. In each case it has been emphasised that where a statute is a penal statute it must as regards proofs required be strictly construed.

10

Micheál P. O'Higgins BL on the applicant's behalf submits that the warrant complies with the provisions of s. 11(1)(d) of the Act, as amended, and which requires that a European arrest warrant shall specify"the offence to which the European arrest warrant, including the nature and classification under the law of the issuing state of...

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    ...Warrant in Ireland (Clarus Press, Dublin, 2011) at paragraph 1–42, citing Minister for Justice, Equality and Law Reform v. Biggins [2006] IEHC 351. 45 Ultimately, the learned judge considered that the provisions at issue do not create penal or other sanctions within the meaning of section ......
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