Myerscough v Governor of Arbour Hill Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 25 November 2016
• Neutral Citation: [2016] IECA 357
• Judgment citation (vLex): [2016] 11 JIC 2503
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2016] IECA 357 Record number: 2016/338
• Date: 25 November 2016

[2016] IECA 357

THE COURT OF APPEAL

CIVIL

Edwards J.

Birmingham J.

Sheehan J.

Edwards J.

Neutral Citation Number: [2016] IECA 357

Record number: 2016/338

IN THE MATTER OF SECTION 16(6)(b) OF THE EUROPEAN ARREST WARRANT ACT 2003, AS AMENDED,

AND

IN THE MATTER OF AN INQUIRY UNDER ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN

JULIAN MYERSCOUGH

Applicant/Appellant

AND

THE GOVERNOR OF ARBOUR HILL PRISON

Respondent

Detention – Error in law – Procedure – Appellant seeking an inquiry concerning the lawfulness of his detention – Whether trial judge erred in law in failing to afford fair procedures to the appellant

Facts: The appellant, Mr Myerscough, sought an inquiry under Article 40.4.2 of the Constitution of Ireland concerning the lawfulness of his detention in Arbour Hill Prison. On the 27th of June 2016, the High Court (McDermott J) determined that the appellant was in fact lawfully detained. The appellant appealed to the Court of Appeal against the ex tempore judgment and order of the High Court. The appellant complained that the trial judge erred in law and or in fact: 1(i) in refusing to grant the appellant at least one day's adjournment, so that his advisors could fully consider the contents of the return made, purportedly justifying the detention, and have an adequate opportunity to fully respond thereto (only a little more than a one-hour's adjournment was granted); (ii) in holding that Twomey J's order of 23rd March 2016 (a) granted other than what was sought by the appellant, being a stay pending the determination of the section I6(6)(b)/Art 40.4 application [2016 344 SS] or further order ‘in the meantime’, (b) stayed the already concluded EAW proceedings [2015 No. 213 EXT] contrary to what the very recital in that order states, (c) alternatively, insofar as it purportedly stayed the EAW proceedings, that stay ‘pending further order' continued, notwithstanding that those proceedings had come to an end, until some unspecified further order that could be made therein, inter alia lifting the stay that remained in force contrary to the Framework Decision on the EAW; (iii) in determining, notwithstanding the passage of time and the expiry of the statutory prescribed time-limits, that the appellant was lawfully detained; (iv) in declining to make an Art. 267 reference to the Court of Justice.

Held by Edwards J that he was not disposed to uphold ground of appeal no 1(i) as there was no failure by McDermott J to afford fair procedures to the appellant. In circumstances where the Order of Twomey J was “acte clair” in so far as Edwards J was concerned, and where he was satisfied that there is no ambiguity whatsoever as to what it says or means, it followed that there was no “bungling” by the State (to use counsel’s characterisation) and that the jurisprudence on which the appellant sought to rely in support of ground of appeal no 1(ii) and (iii) (i.e., O’Falluin v Governor of Cloverhill [2007] 3 IR 414, Rimsa v Governor of Cloverhill [2010] IESC 47 and Voznuka v Governor of Dochas Centre [2013] IESC 33) had no application in the present case. Edwards J was satisfied that there had been no material controversy in this case concerning an issue of EU law, such as would justify the Court in seeking a preliminary ruling pursuant to Article 267 of the Treaty on the Functioning of the European Union. It was in Edwards J’s view beyond question that Twomey J had jurisdiction to grant the stays that he did in the terms that he granted them. To the extent that it was suggested that Twomey J’s Order was itself inconsistent with Article 23 of the Framework Decision, and that therefore he had no jurisdiction to make it, Edwards J was not satisfied that any basis for so suggesting was made out. Edwards J was not persuaded that the need for a preliminary reference arose either in the terms suggested by counsel for the appellant or in any other terms. Edwards J therefore refused the request for a preliminary reference.

Edwards J held that he would dismiss the appeal on all substantive grounds.

Appeal dismissed.

Judgment delivered on the 25th day of November, 2016 by Mr. Justice Edwards

Introduction

1 This appeal is against the ex tempore judgment and order of the High Court (McDermott J.) dated the 27th of June 2016 determining that the appellant was in fact lawfully detained following an inquiry under Article 40.4.2o of the Constitution of Ireland (Bunreacht na hÉireann) concerning the lawfulness of the applicant's detention in Arbour Hill Prison.

2 Before reviewing the judgment of the High Court judge, and setting out the grounds of appeal against it, it is necessary to set out the statutory provisions that are relevant and also to describe background to the entire matter in a little detail.

Relevant statutory provisions

3 We are concerned in this case with s.16 of the European Arrest Warrant Act 2003, as amended by the Criminal Justice (Terrorist Offences) Act 2005, the Criminal Justice (Miscellaneous Provisions) Act 2009 and the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012, respectively (‘the Act of 2003 as amended’).

4 Section 16 of the Act of 2003 as amended provides (to the extent relevant):

‘16.—(1) Where a person does not consent to his or her surrender to the issuing state the High Court may … make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her, provided that—

(a) … [not in controversy],

(b) … [not in controversy],

(c) … [not in controversy],

(d) … [not in controversy],

(e) the surrender of the person is not prohibited by Part 3.

(2) [Not relevant]

(2A) [Not relevant]

(3) An order under subsection (1) … shall … take effect upon the expiration of 15 days beginning on the date of the making of the order ….

(3A) Subject to subsections (5) and (6), a person to whom an order for the time being in force under subsection (1) … applies shall be surrendered to the issuing state concerned not later than 10 days after the order takes effect in accordance with subsection (3).

(4) Where the High Court makes an order under subsection (1) … it shall …

(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 … 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 subsection (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 subparagraph (i), before that expiration.

(5) 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 … for a period not exceeding 10 days after the date fixed under subparagraph (i), pending the surrender,

and

(b) in any other case, order that the person be discharged.

(5A) A person to whom an order for the time being in force under subsection (5)(a) applies—

(a) shall be surrendered to the issuing state concerned not later than 10 days after the order takes effect, or

(b) if surrender under paragraph (a) has not been effected, shall be discharged.

(5B) Where a person is ordered, under subsection (4)(b), to be detained in a prison …and is brought before the High Court pursuant to subsection (4)(c), the person shall be deemed to be in lawful custody at all times beginning at the time of the making of the order under subsection (4)(b) and ending when he or she is brought before the Court.

(6) Where a person—

(a) lodges an appeal pursuant to subsection (11), or

(b) makes a 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.

(7) [Not relevant]

(8) [Not relevant]

(9) [Not relevant]

(10) [Not relevant]

(11) An appeal against an order under subsection (1) … 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.

(12) [Not relevant]’

The background to the matter

5 The appellant is the subject of a European arrest warrant dated the 1st of October 2015 issued by a judicial authority in the United Kingdom, namely a judge at Ipswich Crown Court. The appellant was convicted by that court of thirteen offences of making indecent images of a child, and three offences of breaching a Sexual Offences Prevention Order, and was on bail pending being sentenced for those crimes. The appellant failed to turn up to court on the 30th of September 2015 when he was required to do so, and was subsequently discovered to have boarded a car ferry from Holyhead to Dublin. In consequence of his absconding the aforementioned European arrest warrant was issued seeking the rendition of the appellant to the United Kingdom so that he might be...