Minister for Justice v Stapleton

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 21 February 2006
• Neutral Citation: [2006] IEHC 43
• Court: High Court
• Docket Number: [2005 No. 39 Ext]
• Date: 21 February 2006

[2006] IEHC 43

THE HIGH COURT

39 Ext/[2005]

MIN FOR JUSTICE v STAPLETON

BETWEEN:

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

APPLICANT

AND

ROBERT FRANCIS STAPLETON

RESPONDENT

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN ARREST WARRANT ACT 2003 S40

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005

CONSTITUTION ART 40.4.1

EUROPEAN ARREST WARRANT ACT 2003 S11(3)

EUROPEAN ARREST WARRANT ACT 2003 S22(1)

EUROPEAN ARREST WARRANT ACT 2003 S23(1)(b)

EUROPEAN ARREST WARRANT ACT 2003 S23(2)(b)

EUROPEAN ARREST WARRANT ACT 2003 S24(1)

EUROPEAN ARREST WARRANT ACT 2003 S42(c)

HEANEY v IRELAND 1994 3 IR 593 1994 2 ILRM 420

ROCK v IRELAND 1997 3 IR 484 1998 2 ILRM 35

MURPHY v IRTC 1999 1 IR 12 1998 2 ILRM 360

ART 26 OF THE CONSTITUTION & PART v OF PLANNING & DEVELOPMENT BILL 1999, RE 2000 2 IR 321 2001 1 ILRM 81

K (D) v CROWLEY & ORS 2002 2 IR 744

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(a)

EXTRADITION ACT 1965 PART III

EXTRADITION ACT 1965 S47

EXTRADITION ACT 1965 S50(2)(bbb)

HUMAN RIGHTS ACT 1998 S6

R v WARD 1993 1 WLR 619

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

EXTRADITION ACT 1989 S11(3)(b)

F (J) v DPP UNREP HIGH COURT PEART J 16.11.2005 2005/24/4966

C (P) v DPP 1999 2 IR 25

DPP v BYRNE 1994 2 IR 236

EXTRADITION ACT 1965 S50

FINUCANE v MCMAHON 1990 IR 165 1990 DULJ 127

EXTRADITION ACT 1965 PART II

EUROPEAN ARREST WARRANT ACT 2003 S40

EXTRADITION

European arrest warrant

Personal rights - Delay - Offences allegedly committed in 1978 to 1982 - Whether surrender prohibited as incompatible with State's obligations under European Convention on Human Rights - Whether surrender in breach of respondent's constitutional rights - Whether delay excessive, unconscionable and inexcusable -Whether sufficiency of safeguards for fair trial in requesting state relevant - Whether respondent established on balance of probabilities that capacity to adequately defend himself hampered - Whether on balance of probabilities respondent would receive trial within reasonable time - Nature of alleged offences - Woodcock v Government of New Zealand [2002] EWHC2668 (Admin), [2004] 1 WLR 1979considered; Minister for Justice v R(S) [2005] IEHC 37 (Unrep, Peart J, 15/11/2005) and F(J) v DPP [2005] IEHC 382 (Unrep, Peart J,16/11/2005) followed - European Arrest Warrant Act 2003 (No 45), ss 4A, 16 and 37- European Convention on Human Rights1950, articles 3 and 6 - Council Framework Decision 2002/584/JHA, art 12 - Surrender refused (2005/39Ext - Peart J - 21/2/2006)[2006] IEHC 43, [2006] 3 IR 26Minister for Justice, Equality and Law Reform v Stapleton

Facts: The United Kingdom authorities sought the surrender of the respondent on foot of a European Arrest Warrant in order for the respondent to stand trial on a number of charges alleged to have been committed between May 1978 and July 1982. The respondent resisted the application for his surrender on a number of grounds including but not limited to an objection on the basis that his surrender was prohibited by section 37 of the 2003 Act as it would be incompatible with the State's obligations under the Convention and the Protocols thereto, and further that the delay on the part of the authorities in requesting the surrender of the respondent was excessive, unconscionable and inexcusable in all the circumstances and prejudiced him in his capacity to defend himself.

Held by Peart J. in refusing the application: That notwithstanding the actual prejudice established by the respondent as a result of the delay in seeking his surrender, the lapse of time between the commission of the alleged offences and the application for surrender was such as to give rise to a presumption that the respondent would not receive a fair trial. It would be incompatible with the State's obligations under the Convention to return the respondent to the requesting state in the hope that his rights would be vindicated there.

Reporter: L.O'S.

1 Mr Justice Michael Peartdelivered on the 21st day of February 2006:

2 The respondent's surrender is sought by the United Kingdom authorities on foot of a European arrest warrant which issued on the 20th July 2005 at Bow Street Magistrates" Court. The decision on which that warrant is based is stated therein to be a "warrant of arrest dated 15th January 2004 issued at Lincoln City Magistrates" Court, Lincolnshire, England". The 30 charges for which the respondent's surrender is sought are alleged to have been committed between 25th May 1978 and the 20th July 1982, and consist of various fraud type offences - i.e. false accounting, obtaining pecuniary advantage by deception, procuring the execution of a valuable security by deception, attempting to obtain a pecuniary advantage, furnishing false information, conspiracy to procure the execution of a valuable security, and conspiracy to defraud.

3 The European arrest warrant itself sets out some general description of the nature of the alleged frauds by the respondent in the following way:

"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 Limited and Ultraleisure Limited had committed 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......... "

4 The respondent denies the charges. In fact in his first affidavit sworn on the 18th October 1985 he states that what he refers to as "the arrangements" referred to in the warrants as set forth above "were in fact the creation of the United Kingdom ECGD" [Export Credit Guarantee Department], and that the "the purpose of those arrangements......was to circumvent EC State Aid rules intended to prevent a state's subvention of its own export trade to the competitive detriment of traders in other member states." He goes on to state that Banks such as Lloyds Bank and Coutts & Co. were happy to collude in such covert arrangements by supplying the necessary bridging finance because such borrowing was guaranteed by the ECGD. He goes on as follows:

"However a problem arose for the ECGD when investigations by a local journalist in Denmark uncovered the existence of a £4.5 million sterling charge registered to a Swiss company which was in fact the vehicle to provide security for the ECGD. The response of the ECGD was to leave that company unaided and financially overextended in circumstances that resulted directly in its liquidation. In order to conceal its own unlawful activity, the ECGD has done nothing to assist either my wife or me in rebutting the unwarranted allegation that the company's collapse was attributable to an alleged fraud on our part. Nor will the banks willingly assist us in our Defence because they do not want to risk losing the benefit of the loan guarantees provided to them by the ECGD."

5 Mr Derek Canton, a retired police officer who was involved in the investigation of these matters since 1985, has sworn an affidavit in which he deals with a number of matters including what the respondent has stated above about the allegations. He responds at paragraph 27 of his said affidavit by stating as follows:

"I say that at no stage during the course of the investigation by the Lincolnshire Police of the matters from which the charges against the respondent are brought was any evidence of criminality uncovered which would tend to show or support the matters raised by the respondent in relation to the ECGD. The avoidance or circumvention of EC Aid rules has no relevance on the alleged action of the respondent as set out in the EAW charges. I confirm that the trial judge ruled that certain evidence of ECGD employees (probably Mr Robert Rand and Mr Gordon Granville Bird) was not relevant to any issue in the trial of Mrs Julia Stapleton, in that the alleged avoidance or circumvention of EC Aid rules did not occur until after all the dates of the offences for which Mrs Stapleton was found guilty. The evidence to which I refer was in fact admitted in the second trial of Mr Coles held at Leicester Crown Court."

6 I will deal in due course with the manner in which the lapse of time/delay is said to prejudice the respondent in his defence to the charges.

7 The issues raised by the respondent by way of resistance to the application for his surrender under s. 16 of the Act are set forth in Amended Points of Objection dated the 1st December 2005 and may be conveniently summarised as follows:

8 Firstly, that the European arrest warrant is not in accordance with law, and is void and of no legal effect;

9 Secondly, that the offences alleged...