Minister for Justice v Buckley

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 26 November 2015
• Neutral Citation: [2015] IESC 87
• Court: Supreme Court
• Docket Number: [Appeal No. 287/2014],[S.C. No. 287 of 2014]
• Date: 26 November 2015

[2015] IESC 87

THE SUPREME COURT

Denham C.J.

Hardiman J.

O'Donnell J.

MacMenamin J.

Laffoy J.

[Appeal No. 287/2014]

Between:

In the Matter of the European Arrest Warrant Act, 2003

The Minister for Justice & Equality

Applicant/Respondent

and

Jason Buckley

Respondent/Appellant

Extradition – European arrest warrant – Points of exceptional public importance – Appellant seeking to oppose his rendition to the UK – Whether surrendering the appellant to the issuing State would expose him to practices or procedures amounting to infringements of his constitutional right to fair and just procedures

Facts: The appellant, Mr Buckley, was the subject of a European Arrest Warrant dated the 12th August, 2013 issued by a competent judicial authority in the UK. The UK authorities sought his rendition for the purpose of prosecution for the single offence of conspiracy to cause explosions. The European Arrest Warrant was endorsed for execution in Ireland”s jurisdiction on the 15th August, 2013. The appellant was arrested and brought before the High Court in May, 2014. The appellant opposed his surrender on foot of a single net point of objection, set out in the following terms: To surrender the appellant to the issuing State would be to expose him to practices or procedures which if exercised within this State would amount to infringements of his constitutional right to fair and just procedures. The evidential basis for this contention was laid out in an affidavit by a UK solicitor, Mr Morris. He described the law relating to conspiracy charges in the UK. He identified certain rules of evidence and procedures laid down in statute form, which may be applicable in the trial of persons charged with conspiracy. It was said that these raise constitutional issues in Ireland”s jurisdiction, such that the appellant should not be surrendered. On the 27th May, 2014 the High Court ordered that the appellant be surrendered to the United Kingdom authorities. On the 5th June, 2014, the same judge (Edwards J) certified two matters as being points of exceptional public importance, pursuant to s.16 of the European Arrest Warrant Act, 2003. These points were: 1) Does the right to a fair trial, guaranteed by Article 38 of the Constitution, have application beyond the national territory? Specifically, is it permissible for a respondent to an application for surrender to raise an apprehended breach of Article 38 as an objection to surrender under s.37 of the 2003 Act?; 2) Having regard to the comments of Walsh J in Ellis v O”Dea [1989] IR 530, and the evidential rules that apply to the prosecution of conspiracy in England, would the surrender of the respondent amount to a breach of s.37? The appellant contended that, were he to stand trial in the UK, these emphasised provisions would enable the prosecution to adduce evidence of a convicted conspirator”s conviction in the same matter. He submitted that if he is surrendered to the UK, there is a risk of denial of his rights pursuant to Article 38. The principal objection raised by the appellant to his surrender and ultimate trial, was the prospect that the fact that evidence of others, who were convicted of an offence in the same matter, may be presented to the jury as admissible evidence that such other persons committed the offence, thus compromising the appellant”s presumption of innocence, and the fairness of a trial.

Held by MacMenamin J that what arose in the case was purely a hypothesis, regarding application of the rules of evidence in the UK; there was no factual material in the appeal that the statutory provisions in question which are, simply, evidential rules, were likely to be relied on in a trial. MacMenamin J held that the appellant had not adduced evidence that he would be left without remedy, or asserted that no procedural checks and balances exist in the UK in order to ensure that fairness is preserved in a trial there. MacMenamin J held that what was in question was the lawfulness of the surrender of the appellant in Ireland”s jurisdiction. He therefore answered the first question in the negative. MacMenamin J held that the facts in this case were very far from those which arose in Soering v UK (Ser. A No. 161 1989), where the ECtHR held that the extradition of a German national to the United States, to face charges of capital murder, would violate Article 3 ECHR guarantees preventing inhuman and degrading treatment. In the absence of other evidence to the contrary, the Court acted on the presumption prevailing by virtue of s.4A of the 2003 Act. MacMenamin J therefore also answered the second question in the negative.

MacMenamin J held that the appeal should be dismissed.

Appeal dismissed.

Judgment of Mr. Justice John MacMenamin dated the 26th day of November, 2015

Points of Law

1 On the 27th May, 2014 the High Court, (Edwards J.), ordered that the appellant be surrendered to the United Kingdom authorities, on foot of an application under the European Arrest Warrant procedure. On the 5th June, 2014, the same judge certified two matters as being points of exceptional public importance, pursuant to s.16 of the European Arrest Warrant Act, 2003. These points were:

(1) Does the right to a fair trial, guaranteed by Article 38 of the Constitution, have application beyond the national territory? Specifically, is it permissible for a respondent to an application for surrender to raise an apprehended breach of Article 38 as an objection to surrender under s.37 of the European Arrest Warrant Act, 2003?

(2) Having regard to the comments of Walsh J. in Ellis v. O'Dea [1989] I.R. 530, and the evidential rules that apply to the prosecution of conspiracy in England, would the surrender of the respondent amount to a breach of s.37 of the European Arrest Warrant Act, 2003?

Background

2 The appellant is the subject of a European Arrest Warrant dated the 12th August, 2013 issued by a competent judicial authority in the United Kingdom. The U.K. authorities seek his rendition for the purpose of prosecution for the single offence of conspiracy to cause explosions. The nature of the offence is particularised in the European Arrest Warrant, in the following way:

‘Jason Buckley, between the 20th June, 2012 and the 18th day of August, 2012, unlawfully and maliciously conspired, together with Thomas James Leslie Snr., Jason Joseph William Toft, Thomas Richard Leslie Jnr., Kevin Proctor, and Martin William Drewery, and with others, to cause by explosive devices explosions of a nature likely to endanger life or cause serious injury to property in the United Kingdom or Republic of Ireland, contrary to s.3(1)(a) of the Explosive Substances Act, 1883.’

3 The alleged offence is said to derive from a dispute between two persons involved in criminal activity in the Stoke-on-Trent area. It is said these two persons enjoyed a business relationship. There was then a falling out, involving a dispute relating to a financial settlement. It is said that one of the two persons took the view that the other might be amenable to pressure, and, allegedly, embarked on a campaign of intimidation by the utilisation of explosive devices. It is alleged that the appellant herein was complicit, specifically, in the design or manufacture of the pipe bombs said to have been used. Other persons had already been convicted arising from the same incidents.

The Legal Procedure

4 The European Arrest Warrant was endorsed for execution in this jurisdiction on the 15th August, 2013. The appellant was arrested and brought before the High Court, where the matter was heard before Edwards J. on the 28th May, 2014.

5 In the High Court the appellant opposed his surrender on foot of a single net point of objection, set out in the following terms:

‘To surrender the respondent [now the appellant to this appeal] to the issuing State would be to expose him to practices or procedures which if exercised within this State would amount to infringements of his constitutional right to fair and just procedures. The respondent submits that this arises in circumstances where the alleged offence he is required to answer in the issuing State is one of conspiracy. The respondent submits that should he be surrendered to the issuing State for the purpose of trial on the charge of conspiracy, he will be faced with the introduction of evidence which would be inadmissible and/or would fall foul of the constitutional guarantees of fair procedures. It is submitted that the respondent, in facing such a charge, would lose the protection of this jurisdiction to another where such protection would not be enjoyed by him.’

6 The evidential basis for this contention was laid out in an affidavit by a United Kingdom solicitor, James Patrick Morris. Mr. Morris, retained by the appellant's legal advisors, described the law relating to conspiracy charges in the United Kingdom. He identified certain rules of evidence and procedures laid down in statute form, which may be applicable in the trial of persons charged with conspiracy. It is said these raise constitutional issues in this jurisdiction, such that the appellant should not be surrendered.

The U.K. Provisions in Question

7 Sections 74 and 75 of the United Kingdom Police & Criminal Evidence Act, 1984 (PACE, or ‘the Act of 1984’), provide as follows:

‘74. Conviction as evidence of commission of offence

(1) In any proceedings the fact that a person other than the accused has been convicted of an offence by or before any court in the United Kingdom or any other member State or by a Service court outside the United Kingdom shall be admissible in evidence for the purpose of proving, that that person committed that offence, where evidence of his having done so is admissible, whether or not any other evidence of his having committed that offence is given.

(2) In any proceedings in which by virtue of this...