Minister for Justice v Bailey

• Jurisdiction: Ireland
• Judgment Date: 01 March 2012
• Date: 01 March 2012
• Docket Number: [S.C. No. 174 of 2011]
• Court: Supreme Court

Minister for Justice v. Bailey

The Minister for Justice, Equality and Law Reform

Applicant

and

Ian Bailey

Respondent

[2012] IESC 16,

[S.C. No. 174 of 2011]

Supreme Court

Extradition - European arrest warrant - Statutory interpretation - Surrender - Whether decision by issuing state to charge and try respondent - Effect of repealed provision on rights of respondent - Whether respondent acquiring right not to be surrendered - Whether reciprocity of offences - Whether respondent to be surrendered - Offences Against the Person Act 1861 (Section 9) Adaptation Order 1973 (S.I. No. 356), art. 3 - Extradition Act 1965 (No. 17), ss. 8, 16, 50, Part II - European Arrest Warrant Act 2003 (No. 45), ss. 10, 11, 13, 14, 16, 20, 21A, 37, 42 and 44 - Criminal Justice (Terrorist Offences) Act 2005 (No. 2), ss. 63, 68, 83 and Part 8 - Interpretation Act 2005 (No. 23), s. 27 - Constitution of Ireland 1937, Articles 15 and 40 - Council Framework Decision, 13th June 2002, arts. 1, 2, 4, 8, recitals 5 and 6 - European Convention on Human Rights 1950 - European Convention on Extradition 1957, articles 7 and 26.

Section 44 of the European Arrest Warrant Act 2003 provides "[a] person shall not be surrendered … if the offence specified in the European arrest warrant issued in respect of him or her was committed or is alleged to have been committed in a place other than the issuing state and the act or omission of which the offence consists does not, by virtue of having been committed in a place other than the State, constitute an offence under the law of the State". This provision was enacted to incorporate art. 4.7(b) of the Council Framework Decision of the 13th June, 2002, into Irish law. Article 4.7(b) states that a judicial authority may refuse to execute a European arrest warrant where the "… warrant relates to offences which … have been committed outside the territory of the issuing Member State and the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory".

Section 42 of the Act of 2003 as originally enacted included a subsection stating that a person should not be surrendered under the Act if, inter alia, the Director of Public Prosecutions had decided not to bring proceedings against the person for an offence constituting in whole or in part the offence specified in the European arrest warrant issued in respect of that person. This was subsequently repealed by virtue of s. 83 of the Criminal Justice (Terrorist Offences) Act 2005.

Section 21A of the Act of 2003 provides, inter alia, that "[w]here a European arrest warrant is issued in the issuing state in respect of a person who has not been convicted of an offence specified therein, the High Court shall refuse to surrender the person if it is satisfied that a decision has not been made to charge the person with, and try him or her for, that offence in the issuing state".

A European arrest warrant was issued by the Republic of France seeking the surrender of the respondent in respect of a murder that occurred in Ireland in 1996. The Director of Public Prosecutions of Ireland had made a decision not to prosecute the respondent on any charge relating to this murder. The High Court (Peart J.) ordered the surrender of the respondent to the French authorities (see [2011] IEHC 177). The respondent appealed to the Supreme Court.

Held by the Supreme Court (Denham C.J., Murray, Hardiman and Fennelly JJ., O'Donnell J. dissenting in part), in allowing the appeal and refusing to order the surrender of the respondent, 1, that s. 21A(l) of the Act of 2003, as amended, was expressed conjunctively, not disjunctively. The court had to inquire whether a decision had been made both to charge the person with and to try him for the relevant offence. On the evidence before the court, it was clear that a decision had been made equivalent to a decision to charge the respondent. However, no further decision had been made. The respondent was sought for the investigation procedure in France, and no decision expressly or impliedly had yet been made in France to try him for the murder. Consequently, he could not be surrendered in accordance with s. 21A. The national law was clear on the requirements it laid down. Irish law was stated clearly with no ambiguity. A warrant issued for the purposes of investigation of an offence alone, in circumstances where that investigation might or might not result in a prosecution, was insufficient under s. 21A.

Minister for Justice v. Olsson [2011] IESC 1, [2011] 1 I.R. 384 distinguished. Criminal Proceedings against Pupino (Case C-105/03) [2005] E.C.R. I-5285 considered.

2. That it was clear that the entitlement to raise, and to benefit from, any particular statutory objection to extradition or surrender, could be understood to be a vested right. On the application of s. 42 of the Act of 2003, the respondent had not established any vested right not to be surrendered that would be protected pursuant to s. 21 of the Interpretation Act 1937, or s. 27 of the Interpretation Act 2005. The current law was to be found in s. 42 of the Act of 2003, as amended, and the respondent had not established that he had any right to a benefit of a section of an Act which had been repealed.

Sloan v. Culligan [1992] 1 I.R. 223 followed.Attorney General v. Abimbola [2007] IESC 56, [2008] 2 I.R. 302 considered.

3. That the words of s. 44 of the Act of 2003 were clear, not ambiguous and could be considered and applied literally. A person could not be surrendered if two specific conditions were satisfied. The first of these conditions was that the offence was committed or alleged to have been committed in a place other than the issuing state. In this case, the offence of murder took place in Ireland and thus outside the issuing state. Therefore, the first condition was met. The second condition was difficult to understand but its effect could more naturally and comprehensibly be expressed as prohibiting the surrender of a person where the act constituting the offence did not constitute an offence in Ireland because it was committed in a place other than Ireland.

Per Fennelly J.: That the principle of conforming interpretation applied and s. 44 had to be interpreted in conformity with art. 4(7)(b) of the Council Framework Decision and not merely with the general objectives of the Framework Decision. There was no reason to exclude the principle of conforming interpretation from a measure because it implemented an opt-out.

Criminal Proceedings against Pupino (Case C-105103)[2005] E.C.R. I-5285 approved.

4. That it was clear that a principle of reciprocity underlined the extradition of suspects accused of committing extraterritorial offences. In applying the principle upon which s. 44 was founded, the section enabled Ireland to surrender a person in respect of an offence alleged to have been committed outside the territory of the issuing state only in circumstances where the Irish State would exercise extraterritorial jurisdiction in reciprocal circumstances. The reciprocity that was required in construing s. 44 of the Act of 2003 was a factual reciprocity concerning the circumstances of the offence. Offences that took place outside of the territory of a state required specification of the circumstances when that state would exercise jurisdiction. In this case, reciprocity required Ireland to examine its law as if the circumstances of the offence were reversed. The court had to determine under Irish law if Ireland could request the surrender of a non-citizen of either Ireland or the executing state in respect of a murder of an Irish citizen which took place outside Ireland. Ireland did not have jurisdiction to seek the surrender of a British citizen from France in respect of a murder of a person of any citizenship which took place in France.

Per Hardiman J.: Pursuant to s. 44, where it was clear that the offence in the warrant was an extraterritorial offence, the court had to consider whether the offence would be amenable to prosecution on an extraterritorial basis in this jurisdiction. This clearly amounted to the court engaging in a hypothetical test where it essentially substituted the State for the position of the requesting state in relation to the offence described in the warrant.

Per Fennelly J.: That a sensible and fair interpretation of art. 4.7(b) of the Framework Decision demanded the recognition of a principle of reciprocity. Thus, where a state exercised the option, surrender would be prohibited where the executing state did not exercise extraterritorial jurisdiction in respect of offences of the type specified in the warrant in the same circumstances.

Per O'Donnell J. (dissenting): There was no explicit reference to reciprocity, or the basis for the exercise of extraterritorial jurisdiction nor to the concept of considering a hypothetical case by reversing the factual situation in either s. 44 of the Act of 2003 or art. 4(7)(b) of the Framework Decision. Both used the words "does not", rather than a conditional phrase such as "would not" which would be more consistent if a hypothetical exercise was necessary. Article 4(7)(b) could be read most intelligibly and simply, as giving a power to executing states to refuse to execute a European arrest warrant when two conditions were satisfied. The first condition ("where the warrant relates to an offence which has been committed outside the territory of the issuing state") was a purely factual inquiry which could be answered by recourse to the warrant itself. The second ("the law of the executing state does not allow prosecution for the same offences when committed outside of its territory") was an inquiry as to the law of the executing state, which ought to be capable of being answered readily. The two conditions were related. Extraterritorial jurisdiction must be being exercised as a matter of fact by the issuing state, and the second...