Minister for Justice Equality and Law Reform v J.B.F, [2006] IEHC 191 (2006)

Docket Number:2006 18Ext
Judge:Peart J.
 
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THE HIGH COURT

Record Number: 2006 No. 18 Ext.

Between:

The Minister for Justice, Equality and Law Reform

Applicant

And

J. B. F. Respondent

Judgment of Mr Justice Michael Peart delivered on the 30th day of May 2006:

The respondent's surrender is sought pursuant to a European arrest warrant which issued from the judicial authority in England on the 26th November 2004, and so that he can be prosecuted in respect of three offences of indecent assault under English law. The complainant was aged sixteen years on the date of these alleged offences, which are alleged to have been committed on the 26th May 2002.

It is not necessary to set forth the detail of what the respondent is alleged to have done, except to say that very full details are contained in the Statement in paragraph (c) of that warrant. It emerges from that statement that the first complaint made by the complainant to the police in respect of these allegations was made in September 2002, although it is also alleged that the complainant disclosed the matter to her mother on the 27th May 2002, being the day following the alleged acts being committed.

It was not until the 28th April 2004 that a domestic warrant was issued for the arrest of the respondent at Coventry Magistrates' Court, West Midlands, England. According to an affidavit sworn by Peter Frisby, an official in the Department of Justice, Equality and Law Reform in relation to the delay in having the warrant endorsed, the European arrest warrant which issued on the 26th November 2004 was received by the Central Authority in this State on the 24th February 2005. He has averred that thereafter certain advices were sought from counsel in relation thereto at the behest of the Attorney General, and following the receipt of those advices, the Central Authority communicated with the requesting authority in England by letter dated 1st April 2005. It was some nine months later on the 6th January 2006 that a response was received from the English authority.

Thereafter on the 14th February 2006 an application was made to the High Court pursuant to s. 13 of the European Arrest Warrant Act, 2003 (as amended) ("the Act") for the endorsement of the European arrest warrant for execution.

The respondent was arrested in this jurisdiction by Sgt. M. O'N. of An Garda Siochána on the 17th February 2006 and immediately brought before the High Court on that date, whereupon, having been satisfied as to compliance with the requirements of s. 13 of the Act the respondent was remanded on bail pending the hearing of the present application under s. 16 of the Act, the respondent having also filed and delivered his Points of Objection on the 27th February 2006.

I have set forth this chronology of relevant events as one of these Points of Objection relates to delay/lapse of time, and its consequences for the respondent. I will come to those submissions in due course.

Patrick McGrath BL, on behalf of the applicant, applied for an order for the surrender of the respondent.

Under s. 16(1) of the Act, this Court may make the order sought in this case provided it is satisfied as to a number of matters set out in that section, namely:

(a) that the person before the Court is the person in respect of whom the warrant was issued;

(b) the warrant has been endorsed in accordance with section 13 of the Act for execution;

(c) where appropriate (i.e. in cases of a conviction/sentence imposed in absentia) an undertaking as required by section 45 of the Act;

(d) that the Court is not required to refuse to surrender the respondent under sections 21A, 22, 23 or 24 of the Act;

(e) that the surrender of the respondent is not prohibited by Part III of the Act, or the Framework Decision annexed thereto.

In addition the Court must be satisfied in relation to correspondence of the offences charged, and that the offences referred to in the warrant would carry in requesting state a penalty of the required minimum gravity, namely a maximum term of imprisonment of not less than twelve months, and also, as required by section 10 of the Act as amended, that a decision has been made by the requesting authority to charge and prosecute the respondent with the offences specified in the warrant.

Mr McGrath has submitted that the Court can be satisfied in relation to all of these matters in the case of the respondent. Specifically, in relation to correspondence he submits that the acts alleged against the respondent would, if committed in this State on the relevant date constitute offences of sexual assault under s. 2, sub-section (1) of the Criminal Law Rape (Amendment) Act 1990 which provides:

Sexual assault.

2. (1) The offence of indecent assault upon any male person and the offence of

indecent assault upon any female person shall be known as sexual assault.

He submits also that the minimum gravity requirement for such an offence for the purpose of an order of surrender is fulfilled by the provisions of s.2 (2) of the said Act namely:

(2) A person guilty of sexual assault shall be liable on conviction on

indictment to imprisonment for a term not exceeding 5 years.

Mr McGrath has submitted that the narrative of the alleged acts and surrounding circumstances of the alleged offences as contained in the warrant make it clear that what is alleged to have occurred would be an assault accompanied by circumstances of indecency. Mr Kelly on the other hand has submitted that there is nothing alleged in the narrative to disclose an assault, in the sense that there is nothing which suggests that there was no consent on the part of the complainant to what is alleged to have taken place. Mr McGrath submits however that there is ample factual description within the statement from which an inference can be drawn that the complainant did not consent to what was alleged to be taking place. I agree. For example, and without setting out any verbatim content, it is clearly stated that when the acts occurred the complainant got up from where she was in the room and went to sit on a chair away from the respondent, but that he then told her to sit on his lap. She stated that she was scared and did not know what to do. On the way home it is alleged she asked her sister if she had seen what had happened, and that she told her sister to say nothing to their mother because she did not want to cause trouble. In my view there is sufficient narrative from which to infer the necessary lack of consent for the purpose of correspondence on this application.

Mr Kelly raises a second point namely whether there are in fact three offences raised at all in the narrative of facts set forth in the warrant, or only one offence. While it is clear that all the individual acts alleged took place within a short enough space of time on the same date, there are clear grounds for potentially regarding them as...

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