Minister for Justice v McArdle

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 04 November 2005
• Neutral Citation: [2005] IESC 76
• Date: 04 November 2005
• Docket Number: [S.C. Nos. 211 & 212 of 2005]
• Court: Supreme Court

MIN FOR JUSTICE v MCARDLE

BETWEEN

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

APPLICANT / RESPONDENT

-v-

MICHAEL DERMOT McARDLE

RESPONDENT / APPELLANT

[2005] IESC 76

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

211/05

212/05

THE SUPREME COURT

CRIMINAL LAW: extradition

European arrest warrant - Surrender for purpose of trial - Whether European arrest warrant for purpose of investigating alleged offence - Abuse of process - Delay - Introduction of new evidence - European Arrest Warrant Act 2003 (No 45), ss 10, 11(3)(b), 16(1) and 16(2) - Respondent's appeal dismissed

PRACTICE AND PROCEDURE: slip rule

Error in order - Jurisdiction to amend slip in order under appeal - Mc Mullen v Clancy [2002] 3 IR 493 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 28, r 11 - Error in HC order amended (211/2005 & 212/2005 - Murray [nem diss] Denham Hardiman Geoghegan Fennelly - 4/11/2005) [2005] IESC 76

MIN FOR JUSTICE v MCARDLE

EXTRADITION ACT 1965 S27(1)

EUROPEAN ARREST WARRANT ACT 2003 S16(2)

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

EUROPEAN ARREST WARRANT ACT 2003 S14(10)

RSC O.28 r11

MCMULLEN v CLANCY 2002 3 IR 493

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 S16(1)(d)

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN ARREST WARRANT ACT 2003 S11(3)(b)

CRIMINAL PROCEDURE ACT 1967

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002

(EUROPEAN ARREST WARRANT ACT 2003)

EUROPEAN ARREST WARRANT ACT 2003 S11(3)

1 JUDGMENT delivered the 4th day of November 2005, by Murray C.J.

2 This is an appeal in which the appellant seeks to set aside the Order of the President of the High Court made on the 27th day of May, 2005 on foot of a European Arrest Warrant directing that the appellant be surrendered to the relevant authorities in the Kingdom of Spain to stand trial on a charge of homicide.

3 The European Arrest Warrant, issued by a Judge in Spain, had been endorsed by Order of the High Court on 16th November, 2004 and was executed by Sergeant Martin O'Neill on 22nd November, 2004 when he arrested the appellant in Ballyjamesduff, Co. Cavan.

4 Part of the factual background to this case is that the appellant had been previously arrested on 21st October, 2001 on foot of a provisional warrant of arrest in relation to the same offence issued pursuant to s. 27(1) of the Extradition Act, 1965. He was subsequently released, the request for extradition having been withdrawn. It is not at all clear why this application was withdrawn, the appellant having been refused information on this point, and it was not subsequently pursued under the Act of 1965. In any event the President of the High Court found as a fact that that extradition request was not ultimately pursued pursuant to the Act of 1965 because at the time the State would not extradite one of its own citizens to Spain in the absence of a reciprocal arrangement with Spain. He also noted that such extradition only became possible with the coming into effect of the European Arrest Warrant Act, 2003 on 1st January, 2004.

5 The European Arrest Warrant issued by the Judge of the Kingdom of Spain relates to an offence of homicide under Spanish law arising from the death of the appellant's wife on 12th February, 2000. On that occasion the appellant and his wife, together with their children, had been staying at a hotel in Marbella, Spain. The charge in question arises out of circumstances in which it was alleged that the deceased died from injuries sustained in a fall from a fourth floor balcony of the room in the hotel where the appellant and his late wife were staying. Subsequent to the death of the appellant's wife, he says that he was permitted and authorised by the Spanish authorities to arrange for the deceased's remains to be returned to Ireland, he also being permitted to return to Ireland, on the basis that no criminal charges were contemplated. The first he knew of an intended criminal prosecution was when he was arrested on 21st October, 2001 on foot of a provisional warrant as referred to above.

Decision

6 I propose first of all to deal with the two grounds upon which the appellant seeks to impugn the Order of the High Court because of the terms and form of the Order itself.

7 In the first of these grounds the appellant complains that the High Court Order purports to direct his surrender to the Kingdom of Spain pursuant to s. 16(2) of the Act whereas, any such Order to be made in this case could only be made pursuant to s. 16(1) of the Act. I do not consider it necessary to refer to the details of these two respective provisions because it is common case that the application for the appellant's surrender was made pursuant to s. 16(1) and, having regard to the manner in which the application came before the High Court s. 16(2) (which only applies where a person has been arrested by virtue of a "Schengen Alert" as defined in s. 14(10), which is not the case here) had no application to the appellant's case and any Order for Surrender made by the High Court could only be made pursuant to s. 16(1).

8 Accordingly, it is submitted on behalf of the appellant that the Order is bad on its face and should be set aside. The State submits that the reference to s. 16(2) instead of s. 16(1) of the Act of 2003 in the High Court Order is clearly a slip or error in the Order within the meaning of Order 28 Rule 11 of the Superior Court Rules having regard to the clear terms of the judgment of the learned President in which he expressly dealt with the application before him on the basis of s. 16(1). In turn the appellant submitted that the President of the High Court consciously made the Order by reference to s. 16(2) after he had given an opportunity to counsel for the State to draft an appropriate Order, and therefore it cannot be amended.

9 As it happens an application had been made by the Respondent to the President of the High Court for an amendment of the Order by substituting therein s. 16(1) for the reference to s. 16(2). As the Order had been the subject of an appeal to this Court the President declined to consider the application on its merits. In my view he had jurisdiction to do so. See the decision of this Court in McMullen -v- Clancy (The Supreme Court, unreported, 31st July, 2002) in which the amendment of a High Court Order by McGuinness J., sitting as a Judge of the High Court, pursuant to Order 28 Rule 11, notwithstanding a pending appeal, was upheld. However the question now is whether the error in question is a fatal flaw in the High Court Order or whether it may be corrected in this Court.

10 At the outset of his judgment the learned President, for the purpose of examining the issues raised by the appellant in the hearing in the High Court, cited in full s. 16(1) of the European Arrest Warrant Act, 2003. Having done so he then expressly concluded as follows:

"On the evidence before me I am satisfied on the matters mentioned in paragraph 16(1)(a), (b) and (c)."

11 He then went on to say that he was satisfied that the necessary undertakings had been given as envisaged by ss. 22, 23 and 24 of the Act as referred to in s. 16(1)(d). He then considered the grounds of objection to an Order of Surrender relied upon by the appellant and having rejected all those grounds he concluded that an Order for the appellant's surrender should be made. It is manifest that in his judgment the learned President had decided that the Order of Surrender should be made under s. 16(1) of the Act of 2003. The judgment is manifestly clear and unambiguous in that respect.

12 Thus the decision of the High Court was that the appellant should be surrendered to the Kingdom of Spain pursuant to s. 16(1) of the Act of 2003. It is thus equally manifest that there was an error or slip in the Order when it referred to s. 16(2) instead of s. 16(1) and that the Order by reason of that error or slip does not accord with the actual decision of the High Court. Although the learned President took care to ask counsel for the State to submit a draft of the appropriate Order and then adopted it (apparently without objection from counsel for the appellant) that does not take away from its character as an error or slip in the Order having regard to the clear terms of the actual decision of the President set out in the judgment he had previously delivered. In my judgment in McMullen -v- Clancy (The Supreme Court, unreported, 31st July, 2002) (Nem.Diss.) I pointed out that "... there is a fundamental public interest in the due administration of justice which requires that the Order of a court accord with what the court has decided and that the decision of a court should not be thwarted, by an accidental slip or error or clerical mistake". As I also pointed out in that case the courts have an inherent as well as an express (in the case of Order 28 Rule 11) jurisdiction to amend a final Order. In the ordinary course of events an application would be made to the judge who decided the case to correct an error or slip in the Order but the Courts" inherent jurisdiction to correct such errors made in Orders, particularly where they are clear and manifest, is not confined to the judge or court from which the error emanated. Indeed there have been cases where such errors have been corrected after a considerable lapse of time such as in two cases referred to in my judgment cited above where corrections where made after a lapse of 19 years and 33 years respectively.

13 Where a matter comes before this Court on appeal and there is no dispute concerning the terms of the decision as set out in the judgment of the High...