Minister for Justice v Oliver Lown

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 14 December 2021
• Neutral Citation: [2021] IEHC 831
• Docket Number: [2021 No. 011 EXT.]
• Year: 2021
• Court: High Court

Between

Minister for Justice

Applicant

and

Oliver Lown

Respondent

[2021] IEHC 831

[2021 No. 011 EXT.]

THE HIGH COURT

JUDGMENT of Mr. Justice Paul Burns delivered on the 14th day of December, 2021

1 By this application the applicant seeks an order for the surrender of the respondent to the United Kingdom of Great Britain and Northern Ireland (“the UK”) pursuant to a European arrest warrant dated 15th December, 2020 (“the EAW”), issued by Judge Peters of the Crown Court as the issuing judicial authority. The surrender of the respondent is sought in order to prosecute him for 12 offences alleged to have been committed between 2013 and 2019.

2 The EAW was endorsed by the High Court on 25th January, 2021 and the respondent was arrested and brought before this Court on 9th February, 2021.

3 I am satisfied that the person before the Court, the respondent, is the person in respect of whom the EAW was issued. This was not put in issue by the respondent.

4 I am further satisfied that none of the matters referred to in ss. 21A, 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), arise and that the surrender of the respondent is not prohibited for the reasons set forth therein.

5 I am satisfied that the minimum gravity requirements of the Act of 2003 are met. Each of the offences in respect of which the respondent's surrender is sought carry a maximum penalty in excess of 12 months' imprisonment. Minimum gravity was not contested.

Correspondence

6 The EAW relates to 12 offences, as follows:-

The relevant statutory provisions are set out in the EAW in respect of the offences, save for the offence of perverting the course of public justice which is said to be contrary to common law.

• — Five offences of sexual penetration per vagina/anus by a person with a living animal;

• — Three offences of making indecent photographs of children;

• — One offence of committing an act/series of acts with intent to pervert the course of public justice;

• — One offence of possessing a controlled drug of class A, heroin;

• — One offence of possessing a controlled drug of class B, cannabis; and

• — One offence of possessing extreme pornographic image/images portraying an act of intercourse/oral sex with a dead/alive animal.

7 As regards correspondence, by virtue of s. 38(1)(b) of the Act of 2003 it is not necessary for the applicant to show correspondence between an offence in the EAW and an offence under Irish law where the offence in the EAW is an offence to which Article 2(2) of the European Council Framework Decision dated 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States, as amended (“the Framework Decision”), applies and, under the law of the issuing state, the offence is punishable with a maximum term of not less than 3 years' imprisonment. In this instance, at part (e).I of the EAW the issuing judicial authority has certified that one or more of the offences is an offence to which Article 2(2) of the Framework Decision applies, the offence is punishable by imprisonment for a maximum period of not less than 3 years and has indicated the relevant box at part (e) of the EAW for “ sexual exploitation of children and child pornography”. At part (e).II of the EAW under the heading “ Full description of offence(s) not covered by section I above”, the offences relating to sexual penetration of an animal, perverting the course of justice and possessing extreme pornographic images are set out but the offences of possessing drugs are not listed. This might give rise to some ambiguity as to whether the invocation of the tick-box procedure relates to the drugs offences as well as the making of indecent images of children. I am satisfied that to adopt such an interpretation of the EAW would be overly pedantic and unreasonable. I read the EAW as indicating that the invocation of the tick-box procedure is only in respect of the offences of making child pornography. In any event I am satisfied that, if necessary, the requisite correspondence can be established between those offences and offences under the law of the State, viz. producing child pornography contrary to s. 5 of the Child Trafficking and Pornography Act, 1998, and/or sexual exploitation of a child contrary to s. 3(2) of same.

8 I am further satisfied that correspondence can be established as follows:-

— Sexual penetration per vagina/anus with a living animal corresponds with an offence under the law of the State of bestiality contrary to s. 61 of the Offences Against The Person Act, 1861; and

— Possession of Class A drugs and possession of Class B drugs each correspond with an offence under the law of the State of unlawful possession of drugs contrary to s. 3 of the Misuse of Drugs Act, 1977.

9 Counsel for the respondent did not contest correspondence except in relation to the offence in the EAW of perverting the course of public justice. He submits that in so far as the offence consisted of throwing the computer into the pond, the respondent was not under arrest at the time, the computer was not in the possession of the police at the time and no proceedings were in being at the time. In such circumstances, he submits that the respondent was free to throw the computer into the pond if he so chose.

10 Counsel for the applicant submits that the action taken by the respondent in throwing the computer into the pond was taken with a view to destroying or secreting evidence of the respondent's wrongdoing so as to prevent or frustrate any reliance on the contents of the computer in any prosecution of the respondent.

11 The nature and scope of the common law offence of perverting the course of justice in this jurisdiction has been considered on a number of occasions in the context of extradition by Peart J. In Minister for Justice, Equality and Law Reform v. Ward [2008] IEHC 53, the surrender of Mr. Ward was sought by the UK to face prosecution for an offence of perverting the course of justice and an offence of causing death by dangerous driving. As regards the offence of perverting the course of justice, it was alleged that when making his statement in the immediate aftermath of a road traffic accident, Mr. Hill had failed to inform the police that he himself was the owner of the vehicle involved and that he was able to identify the driver who had fled the scene. Peart J. was referred to the definition of the offence of perverting the course of justice as set out in Archbold, Criminal Pleadings Evidence and Practice. At para. 28–6 of Archbold, it was stated that deliberate and intentional action taken with a view to frustrating statutory procedures required of the police can amount to the offence of perverting the course of justice. It was submitted on behalf of Mr. Ward that ‘action’ in that paragraph meant a positive act rather than an omission such as failing to provide information. It was submitted on behalf of the Minister that at para. 28–7 of Archbold, it was stated that a person who does an act to assist another to evade lawful arrest, with knowledge that the other is wanted by the police as a suspect, is guilty of attempting to pervert the course of justice. Peart J. held as follows at para. 31:-

“...