Myerscough v Governor of Arbour Hill Prison
| Jurisdiction | Ireland |
| Judge | Mr. Justice McDermott |
| Judgment Date | 14 June 2016 |
| Neutral Citation | [2016] IEHC 333 |
| Court | High Court |
| Docket Number | [2016 No. 344 SS] |
| Date | 14 June 2016 |
[2016] IEHC 333
THE HIGH COURT
McDermott J.
[2016 No. 344 SS]
IN THE MATTER OF SECTION 16(6)(B) OF THE EUROPEAN ARREST WARRANT ACTS 2003 AND 2012
AND IN THE MATTER OF AN APPLICATION FOR AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION
AND
Constitution – Art. 40.4.2 of the Constitution – The European Arrest Warrant Acts 2003 and 2012 – Legality of detention – European Arrest Warrant (EAW) – Breach of fair procedures – Right to appeal
Facts: Following the order of the High Court to surrender the applicant to the requesting state pursuant to the execution of the EAW, and refusal of the High Court to grant leave to appeal that order under s. 16 (11) of the European Arrest Warrant Acts, the applicant had now filed the present application for an inquiry into his detention under art. 40.4.2 of the Constitution. The applicant contended that the discretion vested with the judge to decide whether his own decision was appealable or not was repugnant to the constitution. The applicant also objected to the stay granted by the High Court on his surrender pending the determination of the present application.
Mr. Justice McDermott refused to order an inquiry into the lawfulness of the detention of the applicant. The Court held that the comparators drawn by the applicant between the availability of limited right of appeal under EAW Acts and unlimited right of appeal under the Extradition Act 1965 by putting reliance on Minister for Justice and Equality v. O'Connor [2015] IECA 227 would not assist him. The Court held that in order to plead discrimination by virtue of denial of grant of certificate of appeal, the applicant must present an arguable case and show that some kind of gross injustice that had been caused to him. The Court observed that the determination by a judge as to whether his own decision was appealable was not suggestive of breach of fair procedures as the issue did not go to the merits of the case. The Court found that a judge giving decision on whether his own judgment was appealable or not, would have no interest in the outcome of the appeal and thus, no objective bias could be imputed upon him. The Court further held that the purpose of grant of stay on the surrender of the applicant under s. 16 (6) of the EAW Acts was to ensure protection of his rights enshrined under the Constitution so that no action could be taken against the applicant unless his application under s. 40 of the Constitution had been decided.
This is an application for an inquiry under Article 40.4.2 of the Constitution, in which the applicant challenges his present detention following the making of an order for his surrender to the United Kingdom authorities by the High Court (Donnelly J.) on 29th February, 2016, pursuant to the provisions of s. 16(1) of the European Arrest Warrant Acts 2003 and 2012 (‘the EAW Acts’). An application was made to the court under s. 16(11) for leave to appeal that order on a point of law of exceptional public importance and because it was desirable in the public interest. This application was refused on 11th March, 2016.
The applicant contends that the appeal provision whereby the judge who has determined that the applicant be surrendered is also vested with authority to determine whether she ought to permit an appeal to be taken against her order and judgment under s. 16(11) is repugnant to the Constitution and consequently invalid. As a result, the applicant claims to be entitled to his release under Article 40.
On 29th February, at the time of the making of the surrender order, Donnelly J. informed the applicant that he had a subsisting right to initiate an application for an inquiry into the lawfulness of his detention under Article 40.4.2 of the Constitution as provided in section 16(4)(a).
On 21st March, an application was made to the High Court (Haughton J.) for an inquiry under Article 40 on the grounds that s. 16(11) was repugnant to the Constitution and that the applicant was denied a right of appeal against the order and judgment directing his surrender. Aspects of the grounds advanced on this application had previously been considered in O'Sullivan v. Irish Prison Service [2010] 4 I.R. 563, in which a similar application had been refused. For that reason, Haughton J. adjourned the application to 22nd March, and directed that the respondent and notice parties be put on notice of the application and the grounds thereof. The learned judge then gave directions as to the exchange of affidavits and submissions in respect of the issues in the case and adjourned the application for the inquiry to a further date.
On 23rd March, an application was made to Twomey J. for a stay on the order directing the applicant's surrender ‘pending the final determination of the related proceedings bearing High Court record number [2016 No. 344 SS]…’ and a stay on such part of the order of surrender as was made pursuant to s. 16(4)(c) pending the determination of those proceedings.
As part of the order directing the applicant's surrender the court having recited that he had been informed of his rights under s. 16(4), further directed:-
‘(a) that if the respondent is not surrendered before the expiration of the time for surrender under s. 16(3)A of the European Arrest Warrant Act 2003, as amended, he is to be brought before the High Court again as soon as practicable after that expiration; or
(b) if it appears to the Central Authority in the State that because of circumstances beyond the control of the issuing State concerned that the respondent will not be surrendered on the expiration referred to at (a) he is to be brought before the High Court again before that expiration…’
In addition to the complaint made concerning the unavailability of a right of appeal, the applicant complains that the stay granted on 23rd March, was contrary to the provisions of s. 16(3)(A) and that the court ought not to have granted a stay on the order for surrender. The proper procedure was to bring the applicant before the court which had directed his surrender so that the time for his surrender might be extended pending the determination of the application under Article 40. It was submitted that since the purpose of the applicant's detention is to ensure his surrender in accordance with the Act, the stay, because it was not granted under the statutory procedure and framework contemplated by s.16, was unlawful and/or contra legem.
Section 16(1) of the EAW Acts vests power in the High Court to order the surrender of a person to a State which has issued a warrant upon such date as is fixed by the court or such later date as it considers appropriate. Section 16(4) provides:-
‘4. Where the High Court makes an order under subsection ( 1) or (2), it shall, unless it orders postponement of surrender under section 18:-
(a) inform the person to whom the order relates of his or her right to make a complaint under Article 40.4.2 of the Constitution at any time before his or her surrender to the issuing State;
(b) order that that person be detained in a prison (or if the person is not more than 21 years of age, in a remand institutions) for a period not exceeding 25 days pending the carrying out of the terms of the order; and
(c) direct that the person be again brought before the High Court –
(i) if he or she is not surrendered before the expiration of the time for surrender under subs. (3A) as soon as practicable after that expiration, or
(ii) if it appears to the Central Authority in the State that, because of circumstances beyond the control of the State or the issuing State concerned, that person will not be surrendered on the expiration referred to in sub-paragraph (i), before that expiration.
Where a person is brought before the High Court pursuant to subsection (4)(c), the High Court shall:-
(a) if satisfied that, because of circumstances beyond the control of the State or the issuing State concerned, the person was not surrendered within the time for surrender under subsection (3A) or, as the case may be, will not be so surrendered:-
(i) with the agreement of the issuing judicial authority, fix a new date for the surrender of the person; and
(ii) order that the person be detained in a prison (or, if the person is not more than 21 years of age in a remand institution) for a period not exceeding ten days after the date fixed under sub-paragraph (i) pending the surrender;
(b) in any other case, order that the person be discharged…
Where a person:-
(a) lodges an appeal pursuant to subsection (11); or
(b) makes the complaint under Article 40.4.2 of the Constitution
he or she shall not be surrendered to the issuing State while proceedings relating to the appeal or complaint are pending…’
The right of appeal against an order directing a person's surrender is set out in s.16 subs. (11):-
‘11. An appeal against an order under subsection ( 1) or (2) or a decision not to make such an order may be brought in the Supreme Court if, and only if, the High Court certifies that the order or decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.’
On 11th March, the High Court declined to grant a certificate under s. 16(11) in respect of the following proposed grounds set out in the schedule to the court's order:-
‘1. In proceedings under the European Arrest Warrant Acts 2003 and 2012, should the unchallenged and uncontroverted evidence of a respondent...
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