Owczarz v Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 14 December 2016
• Neutral Citation: [2016] IECA 388
• Docket Number: Neutral Citation Number: [2016] IECA 388
• Court: Court of Appeal (Ireland)
• Date: 14 December 2016

[2016] IECA 388

THE COURT OF APPEAL

Hogan J.

Finlay Geoghegan J.

Hogan J.

Hanna J.

Neutral Citation Number: [2016] IECA 388

[2015/427]

IN THE MATTER OF ARTICLE 40.4 OF THE CONSTITUTION

AND

IN THE MATTER OF SECTION 16(6)(b) OF THE EUROPEAN ARREST WARRANT ACT 2013 (AS AMENDED)

BETWEEN

JAROSLAW OWCZARZ

APPLICANT/APPELLANT

AND

GOVERNOR OF CLOVERHILL PRISON

RESPONDENT/RESPONDENT

Crime & sentencing – Extradition– European Arrest Warrant – Detention of appellant – Art 40.4.2 Constitution – S 16 European Arrest Warrant Act 2003

Facts: The appellant had been detained pursuant to a European Arrest Warrant issued by the Republic of Poland. He submitted his detention in relation to s 16 of the European Arrest Warrant offended the constitution as it permitted a High Court judge to decide if an appeal lay against their own judgment, thus limiting their right of appeal.

Held by the Court, Hogan J giving the judgment, that the appeal would dismissed. The Court was satisfied that even if the appellant was correct that s 16 of the 2003 Act was unconstitutional, it did not render his detention for extradition unlawful. Lanigan v Governor of Cloverhill Prison [2016] IECA 293 applied

considered.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 14th day of December 2016

1 This is an appeal taken by the applicant from the decision of the High Court (Haughton J.) delivered in August 2015 where in an ex tempore ruling he refused to direct an inquiry into the legality of the applicant's detention, an application having been made for that purpose by the applicant pursuant to Article 40.4.2 of the Constitution. It is appropriate to record that both the initial application and this appeal were made on notice to the Governor who appeared on both occasions through solicitor and counsel to oppose the application.

2 The background to this Article 40.4.2 application lies in the order made by the High Court (Donnelly J.) on 28th July 2015 whereby she ordered pursuant to s. 16(1) of the European Arrest Warrant Act 2003 (as amended)('the 2003 Act') that the applicant be surrendered to the Republic of Poland. Section 16(4)(b) of the 2003 (as inserted by s. 10 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012) provides that where an order for surrender is made pursuant to the High Court under s. 16(1), it shall (subject to exceptions not here relevant) then 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.'

3 The applicant was then committed to custody in Cloverhill Prison by order of the High Court in accordance with these provisions. He was subsequently admitted to bail pending the outcome of the present appeal.

4 Pursuant to s. 16(11) of the 2003 Act (as amended by s. 12 of the Criminal Justice (Miscellaneous Provisions) Act 2009)('the 2009 Act'), an appeal lies from that decision to this 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.'

5 By virtue of s. 74(1) of the Court of Appeal Act 2014, the reference in this sub-section to the Supreme Court should now be understood as being a reference to the Court of Appeal. Effectively, therefore, no appeal lies from the surrender decision unless the High Court grants the appropriate certificate pursuant to s. 16(11) of the 2003 Act. The applicant did indeed apply for such a certificate for leave to appeal, but such was refused by Donnelly J.. At the hearing of the appeal before this Court, counsel for Mr. Owczarz, Dr. Forde S.C., contended that the applicant would have had good grounds for appeal, save that he could not now advance that appeal in the absence of leave from the High Court in view of the statutory restriction contained in s. 16(11) of the 2003 Act.

6 Two days after the decision of the High Court refusing leave to appeal the applicant issued a plenary summons (2016, No. 6216P) in which he sought a declaration that s. 16(11) of the 2013 Act is unconstitutional. An amended statement of claim was delivered on 21st January 2016 and the defendants delivered their defence on the following day. I feel bound to observe that, in view of the obvious urgency of these plenary proceedings, it is somewhat surprising that to date no steps have, apparently, been taken to ensure that this matter is speedily heard and determined by the High Court.

7 It would seem that the essence of the applicant's constitutional challenge is that s. 16(11) of the 2003 Act fails to respect constitutional norms by:-

(i) allowing the High Court judge to decide in effect whether or not there should be an appeal from her own judgment, thus infringing the rule against objective bias, and

(ii) by curtailing the right of appeal in a...