Minister for Justice v Gardener

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 06 February 2007
• Neutral Citation: [2007] IEHC 35
• Court: High Court
• Docket Number: Record Number: No. 120 Ext./2006
• Date: 06 February 2007

[2007] IEHC 35

THE HIGH COURT

Record Number: No. 120 Ext./2006

MIN FOR JUSTICE v GARDENER

Between:

The Minister for Justice, Equality and LawReform

Applicant

And

Roger Michael Gardener

Respondent

Abstract:

Criminal law - Extradition - Delay - Whether the surrender of the respondent ought to be refused on grounds of delay.

Facts: The respondent argued that his surrender should not be ordered on the grounds of delay. Specifically, the respondent relied on presumed prejudice resulting from the length of the delay in seeking his surrender and emphasised that there was no explanation for the delay. A bench warrant issued for the respondent's arrest in June 2001 in relation to offences of rape and sexual assault, which allegedly took place between 1987 and 1989. However, the domestic warrant did not issue until August 2006.

Held by Peart J. in ordering the surrender of the respondent: That the respondent failed to discharge the onus of establishing that his surrender should not be ordered having regard to the delay in this case.

Reporter: L.O'S.

1 Mr Justice Michael Peartdelivered on the 6th day of February 2007:

2 The surrender of the respondent is sought so that he can be prosecuted for offences of rape and indecent assault alleged to have been committed between 25th October 1987 and 26th October 1989, as well as two further offences of acting so as to pervert the course of justice between the 7th August 2000 and 9th September 2000, and of conspiracy to commit arson between the 7th August 2000 and the 18th August 2000.

3 The European arrest warrant on foot of which his surrender is sought issued on the 18th August 2006. It was endorsed for execution here by order of the High Court dated 19th September 2006, and the respondent was arrested thereafter on the 4th October 2006, following which on the 5th October 2006 he was brought before the High Court as required, whereupon he was remanded in custody from time to time until this application was heard on the 24th January 2007.

4 No issue is raised as to the identity of the respondent, and the Court is in any event satisfied from the affidavit of the arresting officer, Garda Anthony Linehan that the person before the Court is the person in respect of which the European arrest warrant has been issued.

5 It is also not contested that the offences of which the respondent is charged in England correspond to offences in this State. In any event the Court is satisfied in that regard the acts set forth in the warrant would give rise to the offences here of rape, and sexual assault, as well as attempting to pervert the course of justice contrary to Common Law, and of arson contrary to s. 2 of the Criminal Damage Act, 1991.The minimum gravity requirement in respect of all of these offences is satisfied. Since no trial has yet occurred, no undertaking is required under s. 45 of the European Arrest Warrant Act, 2003,as amended. I am satisfied that there is no reason under sections 21A, 22, 23 or 24 of the Act to refuse surrender, and, subject to dealing with two submissions made by Ronan Munro BL on the respondent's behalf, that the surrender of the respondent is not prohibited under Part III of the Act or the Framework Decision. Subject to addressing those submissions, the Court is satisfied that an order of surrender must be made.

Respondent's objections to surrender:

1. Delay:

6 The respondent has sworn no affidavit in support of his contention that the passage of time since the date of these alleged offences is so long that he cannot receive a fair trial or a trial within a...