R (S M) v Governor of Wheatfield Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 28 May 2009
• Neutral Citation: [2009] IEHC 442
• Court: High Court
• Date: 28 May 2009

R (S M) v Governor of Wheatfield Prison

STATE SIDE

IN THE MATTER OF AN APPLICATION FOR AN INQUIRY PURSUANT TO ARTICLE 40.4.2° OF THE CONSTITUTION OF IRELAND

BETWEEN

S.M.R.

APPLICANT

AND

THE GOVERNOR OF WHEATFIELD PRISON

RESPONDENT

[2009] IEHC 442

Record No.: 13EXT/2005

THE HIGH COURT

EXTRADITION

European arrest warrant

Detention - Domestic warrant withdrawn prior to surrender of person named in warrant - Statutory interpretation - Whether withdrawal of domestic warrant rendered European arrest warrant invalid - Minister for Justice v Altaravicius [2006] IESC 23, [2006] 3 IR 148 applied; Minister for Justice v Fallon [2005] IEHC 321, (Unrep, Finlay Geoghegan J, 9/9/2005) considered - European Arrest Warrant Act 2003 (No 45), ss 2, 4A, 10, 11, 13, 16 and 37 - Extradition Act 1965 (No 17) - Criminal Justice (Terrorist Offences) Act 2005 (No 2), ss 69, 71, 72 and 76 - Constitution of Ireland, Articles 40.4.1 and 40.4.2 - Council Framework Decision 2002/584/JHA, articles 2, 3, 4 and 8 - Detention lawful (2005/13EXT - McKechnie J - 28/5/2009) [2009] IEHC 442

R(SM) v Governor of Wheatfield Prison

Facts: The issue arose as to whether if at the date of an application for surrender the domestic warrant was no longer in existence whether the Court could adjudicate on the effect of the European arrest warrant and whether it could still order the surrender of the affected person. The proceedings related to an alleged assault by the applicant dating back to June 2000. A warrant had been withdrawn and a second warrant issued in the same terms. The applicant had contended before the Supreme Court that the warrant was invalid and no order for surrender was possible whereas the Minister alleged that the absence of the warrant was irrelevant for the purposes of the Act. The Supreme Court determined that an order for habeas corpus was required pursuant to Article 40.4.2 of the Constitution and that the High Court could determine all issues arising between the parties.

Held by McKenchie J. in rejecting the challenge, that the European arrest warrant when validly made was separate and distinct from the underlying warrant and the Court could not go behind it unless permitted by either the Framework Decision of the Act of 2003. The applicant was unable to satisfy the Court that the legal basis for so doing was established. The decision did not render laxity immune from judicial challenge in the jurisdiction. The challenge of the applicant failed.

Reporter: E.F.

EUROPEAN ARREST WARRANT ACT 2003 S16

CONSTITUTION ART 40.4.2

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 1.1

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 1.2

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 1.3

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 3

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 4

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 8

TREATY ON EUROPEAN UNION 1992 ART 34(2)(B)

TREATY ON EUROPEAN UNION 1992 ART 35(2)

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(C)

EUROPEAN ARREST WARRANT ACT 2003 S2(1)

EUROPEAN ARREST WARRANT ACT 2003 S9

EUROPEAN ARREST WARRANT ACT 2003 S4A

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S69

EUROPEAN ARREST WARRANT ACT 2003 S10

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S71

EUROPEAN ARREST WARRANT ACT 2003 S11

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S72

EUROPEAN ARREST WARRANT ACT 2003 S16

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S76

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(B)

EXTRADITION ACT 2003 PART III (UK)

EXTRADITION ACT 2003 S142(2) (UK)

MAGISTRATES COURTS ACT 1980 S125 (UK)

EXTRADITION ACT 2003 SS41 (UK)

EXTRADITION ACT 2003 SS42 (UK)

EXTRADITION ACT 2003 SS43 (UK)

EXTRADITION ACT 2003 S213(1) (UK)

MIN FOR JUSTICE v ALTARAVICIUS 2006 3 IR 148 2006/39/8296 2006 IESC 23

DUNDON v GOVERNOR OF CLOVERHILL PRISON 2006 1 IR 518 2006 1 ILRM 321 2005/17/3552 2005 IESC 83

CRIMINAL PROCEEDINGS AGAINST PUPINO 2006 QB 83 2005 3 WLR 1102 2006 AER (EC) 142 2005 ECR I-5285

VON COLSON & KAMANN v LAND NORDRHEIN-WESTFAHLEN 1984 ECR 1891 1986 2 CLMR 430

EXTRADITION ACT 1965

O'ROURKE v GOVERNOR OF CLOVERHILL PRISON & AG 2004 2 IR 456 2004/40/9259 2004 IESC 29

EUROPEAN ARREST WARRANT ACT 2003 S16(1)(E)

CONSTITUTION ART 40.4.1

MIN FOR JUSTICE v FALLON AKA O FALLUIN UNREP FINLAY-GEOGHEGAN 14.10.2005 2005/38/7986 2005 IEHC 322

RSC O.98

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 6

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 8(1)(C)

EUROPEAN ARREST WARRANT ACT 2003 S11(1A)(E)

EUROPEAN ARREST WARRANT ACT 2003 S4A

MIN FOR JUSTICE v BRENNAN 2007 3 IR 732 2007/40/8282 2007 IESC 21

MIN FOR JUSTICE v STAPLETON 2008 1 IR 669 2008 1 ILRM 267 2007/41/8499 2007 IESC 30

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S79

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S80

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S81

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S82

EUROPEAN ARREST WARRANT ACT 2003 PART III

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

R (HILALI) v GOVERNOR OF WHITEMOOR PRISON & ANOR 2008 2 WLR 299 2008 1 AC 805 2008 2 AER 207

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2

HOWARD & ORS v CMRS OF PUBLIC WORKS IN IRELAND 1994 1 IR 101

EUROPEAN ARREST WARRANT ACT 2003 S21A(2)

1 Mr. Justice William M. McKechnie delivered on the 28th day of May, 2009

2 1. The issue in this case arises under the Council's Framework Decision 'on the European arrest warrant and the surrender procedures between Member States' and the European Arrest Warrant Act 2003, as amended (the "2003 Act"). It is a difficult issue and has an importance outside the facts of the instant case. It occurs in this way; under the law of England and Wales, a domestic warrant must exist before a European arrest warrant can issue, whereby the surrender of a person is sought for the purposes of facing trial on criminal charges. Having been so issued and subsequently endorsed for execution in this country and following the person's arrest, an application must then be made to the High Court for the surrender of that person under s. 16 of the 2003 Act. The issue in question is whether if, at the date of such application, the domestic warrant is no longer in existence can this Court adjudicate on what effect, if any, that has on the European arrest warrant: or, subject to any other legal constraint, must it still order the surrender of the affected person?

3 2. The background circumstances giving rise to these proceedings are as follows:-

June 2000-September 2001:	It is alleged that the applicant (Mr. R) committed three acts of indecent assault against a nine year old.
14 th January 2003:	Hendon Magistrates Court issues a warrant for his arrest on the resulting charges: (the "Hendon Warrant" or the "Domestic Warrant").
17 th February 2005:	Bow Street Magistrates Court issues a Part 3 Warrant in respect of the applicant. (the "Part 3 Warrant" or the "European arrest warrant" (E.A.W.))

18 th April 2005:	Applicant is arrested in this jurisdiction on foot of the said E.A.W.
19 th April 2005:	Applicant is released on bail by the High Court awaiting the hearing of an application under s. 16 of the 2003 Act. In such proceedings the Minister for Justice, Equality and Law Reform (the "Central Authority") is the applicant and Mr. R is the respondent.
11 th October 2005:	This application is heard by the High Court.
15 th November 2005:	Peart J. refuses to order his surrender and dismisses the application.
December 2005:	The Minister for Justice, Equality and Law Reform, appeals to the Supreme Court: the applicant cross appeals.

8 th February 2007:	The appeal is heard by the Supreme Court and judgment reserved.
17 th July 2007:	The "Hendon Warrant" is withdrawn by order of the Hendon Magistrates Court.
15 th November 2007:	The Minister's appeal is allowed and the cross appeal is dismissed. The applicant's surrender to England is ordered and he is remanded in custody to await the formal execution of that order.
23 rd November 2007:	The Supreme Court, on being told that the applicant consents, orders his immediate surrender. He is further detained in custody to await the necessary arrangements.
27 th November 2007:	At 2.00pm the Supreme Court is informed that on the 17 th July

	2007, the Hendon Warrant was withdrawn by judicial authority. No such warrant, therefore, existed as of the 15 th November 2007, the operative date.
28 th November 2007:	Hendon Magistrates Court issues a second warrant, in exactly the same terms, as the "Hendon Warrant" of 14 th January 2003.

4 3. Having had this situation outlined to it, the Supreme Court heard a submission on behalf of Mr. R that in the circumstances prevailing, the European arrest warrant was invalid and no order for his surrender could or should have been made. In response, the Minister alleged that the absence of the Hendon Warrant was irrelevant for the purpose of this Court's (or the Supreme Court's) jurisdiction under s.16 of the European Arrest Warrant Act 2003. An issue was thus raised which required determination: the Supreme Court decided that if Mr....