Minister for Justice v Stapleton

• Jurisdiction: Ireland
• Judge: MR JUSTICE FENNELLY
• Judgment Date: 26 July 2007
• Neutral Citation: [2007] IESC 30
• Court: Supreme Court
• Docket Number: [S.C. No. 87 of 2006]
• Date: 26 July 2007

MIN FOR JUSTICE v STAPLETON

BETWEEN:/

THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM

Applicant/Appellant

-and-

ROBERT FRANCIS STAPLETON

Respondent

[2007] IESC 30

Murray C.J.

Denham J.

Geoghegan J.

Fennelly J.

Kearns J.

Appeal No. 087 of 2006

THE SUPREME COURT

CRIMINAL LAW

Extradition

European arrest warrant - Personal rights - Delay - Offences allegedly committed in 1978 to 1982 -Whether delay or lapse of time since dates of alleged offences to be considered by courts of executing member state or courts of issuing member state - Whether respondent principal author of delay - Whether respondent entitled to rely on delay - Whether court had jurisdiction to consider whether constitutional rights infringed if surrendered - Whether European arrest warrant mechanism required parity of criminal procedures between contracting member states - Woodcock v Government of New Zealand [2003] EWHC 2668 (Admin), [2004] 1 WLR 1979, Ellis v O'Dea (No 2) [1991] 1 IR 251, Altaravicius v Minister for Justice [2006] IESC 23, [2006] 3 IR 148, Advocaten voor de Wereld v Leden van de Ministerrad (Case C-303/05) (Unrep, ECJ, 3/5/2007), Minister for Justice v Brennan [2007] IESC 21, (Unrep, SC, 4/5/2007) and Criminal proceedings against Pupino (Case C-105/03) [2006] QB 83 considered - European Arrest Warrant Act 2003 (No 45), s 37- Council Framework Decision 2002/584/JHA, art 12 - Surrender ordered (87/2006 - SC - 26/7/2007) [2007] IESC 30

Minister for Justice v Stapleton

The respondent is an Irish citizen. A European Arrest Warrant was issued in London relating to 30 offences involving fraud. The learned judge refused surrender of the respondent. Issues arose as to the extent to which our courts, in dealing with surrender requests under the procedures for the European Arrest Warrant should seek to incorporate Irish case-law with regard to lapse of time or delay in criminal proceedings.

Held The learned trial judge was incorrect to refuse to make the order for surrender on the grounds of delay. The respondent's reliance on delay or lapse of time was rejected. The appeal was allowed and an order made for the surrender of the respondent.

Reporter: E.C.

EUROPEAN ARREST WARRANT ACT 2003 S37

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005

CONSTITUTION

DUNDON v GOVERNOR OF CLOVERHILL PRISON 2006 1 IR 518 2006 1 ILRM 321 2005 17 3552 2005 IESC 83

EXTRADITION ACT 1965 S50(2)(bbb)

EUROPEAN ARREST WARRANT ACT 2003 S40

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 ART 4.4

EUROPEAN ARREST WARRANT ACT 2003 S37(1)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 RECITAL 12

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 RECITAL 13

CRIMINAL PROCEEDINGS AGAINST PUPINO 2005 ECR I-5285

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

HANLON v FLEMING 1981 IR 489, 1982 ILRM 69

EXTRADITION ACT 1965 PART III

EXTRADITION (AMDT) ACT 1987 S2

HARTE v FANNING 1988 ILRM 70 1987 3 754

WOODCOCK v GOVERNMENT OF NEW ZEALAND 2004 1 WLR 1975 27.11.2003 TLR

ELLIS v O'DEA 1991 ILRM 346

SLOAN v CULLIGAN 1992 1 IR 223 1991 ILRM 641 1991 6 1338

QUINLIVAN v CONROY & SREENAN 2000 3 IR 154 2000 2 ILRM 515 1999 22 7090

KWOK MING WAN v ASSISTANT COMMISSIONER NOEL CONROY 1998 3 IR 527

KAKIS v GOVT OF REPUBLIC OF CYPRUS 1978 1 WLR 779

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 ART 1.3

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 RECITAL 6

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 RECITAL 10

MIN FOR JUSTICE v ALTARAVICIUS 2006 3 IR 148

ADVOCATEN VOOR DE WERELD v LEDEN VAN DE MINISTERRAD (CASE C-303/05) 3.5.2007

TREATY OF ROME ART 6.1

TREATY OF ROME ART 6.2

M (P) v DPP 2006 2 ILRM 361 2006 IESC 22

MIN FOR JUSTICE v BRENNAN UNREP SUPREME 4.5.2007 2007 IESC 21

1 JUDGMENT of MR JUSTICE FENNELLYdelivered on the 26th day of July, 2007.

2 This appeal concerns the European Arrest Warrant. The Minister (hereinafter "the Applicant") appeals against the decision of the High Court (Peart J) refusing to order the surrender of the Respondent to the United Kingdom. The learned trial judge decided, pursuant to section 37 of the European Arrest Warrant Act, 2003 (hereinafter "the Act"), that the surrender of the Respondent would constitute an infringement of the constitutional rights of the Respondent, by reason of the lapse of time since the alleged commission of the offences for which the Respondent is to be tried.

The Proceedings

3 The Respondent is an Irish citizen, aged sixty three years. Prior to 1994, he had lived for a number of years in the United Kingdom and subsequently in Spain and, for a short time, in France. Since the end of 1994, he has lived in Ireland.

4 A European Arrest Warrant ("the EAW") was issued by on the 20th July 2005 at Bow Street Magistrates' Court, London. The warrant relates to a total of 30 offences involving fraud. The offences are alleged to have been committed over a period from 1978 to 1982. It is alleged that the Respondent obtained in excess of Stg£3 million through the commission of these offences.

5 The EAW was duly transmitted to the Central Authority in the State and endorsed by the High Court for execution pursuant to the provisions of the Act. The Respondent was arrested on 14th September 2005 at Redgap, Rathcoole, County Dublin, brought before the High Court and committed to prison pending the hearing of the application for an order for his surrender.

6 The Respondent filed a number of Points of Objection. The only one of present relevance is that based on section 37 of the Act, which is the ground upon which the Respondent succeeded before Peart J. He also filed a notice claiming that the Criminal Justice (Terrorist Offences) Act 2005 is repugnant to the Constitution in that it represents a disproportionate implementation of the objective of enforcement of the European Union Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States (the "Framework Decision"). The learned trial judge dismissed that claim. The Respondent has appealed to this Court. The constitutional matter was not argued at the hearing of the appeal and remains outstanding.

7 In the course of the proceedings before the High Court, the Respondent unsuccessfully applied for discovery of a wide range of documents from the authorities of the issuing Member State (the United Kingdom). Affidavits were exchanged, including one from each side concerning law and procedure in the English courts.

8 Following a hearing on 13th December 2005, the learned trial judge gave judgment on 21st February 2006 refusing the order for surrender of the Respondent.

Background: The Facts

9 Normally, it would be unnecessary to consider the nature of the offences in any detail. However, the Respondent states that he wishes to advance a very specific line of defence to the charges, involving allegations of collusion in his activities by the Export Credit Guarantee Department of the United Kingdom. This has become linked with his complaint about prejudice resulting from delay and makes it necessary to advert to the nature of the charges he faces.

10 The EAW contains the following account of the circumstances in which the offences are alleged to have been committed:

"In August 1985 an investigation was launched following allegations made by the Department of Trade and Industry that the Directors of two Lincoln-based companies, Lumiere Ltd. and Ultraleisure Ltd., had committed a large-scale fraud. Robert Francis Stapleton, the person sought, was the Chairman of both companies which manufactured and supplied fold-away squash courts. It is alleged that between 20th May 1978 and 31st December 1982, the period of time covered by the offences, Robert Francis Stapleton masterminded a fraud from which he obtained in excess of £3 million to support his companies and fund an extravagant lifestyle. The nature of the fraud was essentially very simple. Bogus invoices and supporting documents, for example shipping certificates, were typed up that purported to show that Ultraleisure had exported goods and services to foreign buyers. Two banks, Coutts and Co. and Lloyds Bank, then advanced funds to Ultraleisure in the belief that the transactions represented on the documents were genuine. When it became necessary for Ultraleisure to repay an advance on the maturity of the relevant promissory note, a larger advance was obtained on similarly false documents and part of that used to repay the earlier borrowing. Ultraleisure therefore had to borrow ever larger sums of money to hide the fraud."

11 While there is much dispute about the facts surrounding the Respondent's departure from the United Kingdom and subsequent events, it is not so much the essential chronological history that is in dispute as the interpretation to be placed on events.

12 The Respondent says that he is entirely innocent of the charges and that he could not be prosecuted for similar offences under the law of the State, by reason of the lapse of time. The offences are alleged to have been committed on dates ranging now from 24 to 29 years ago.

13 The Respondent says that he wishes to mount a defence which is both complex and wide-ranging. He accepts that the company, Ultraleisure Ltd. went into liquidation on 13th June 1983. He says, however, that the events described in the EAW were not a fraud "masterminded" by him. In fact, he says that they were the creation of the Export Credit Guarantee Department of the United Kingdom, designed to circumvent the State Aid Rules of the European Community. The Banks were content to collude in supplying bridging finance because the borrowing was guaranteed by the ECGD. He says that a problem arose when a Danish journalist uncovered the existence of a Swiss Company which was the vehicle to provide...