O'Rourke v Governor of Cloverhill Prison and AG

JurisdictionIreland
JudgeDenham J.,Mr Justice McCracken
Judgment Date13 May 2004
Neutral Citation[2004] IESC 29
CourtSupreme Court
Docket Number[S.C. No. 130 of
Date13 May 2004
O'ROURKE v. GOVERNOR OF CLOVERHILL PRISON
IN THE MATTER OF AN APPLICATION FOR
AN INQUIRY UNDER ARTICLE 40.4.2
OF THE CONSTITUTION
BETWEEN/
THOMAS JAMES O'ROURKE
APPLICANT/APPELLANT

AND

THE GOVERNOR OF CLOVERHILL PRISON AND THE ATTORNEYGENERAL
RESPONDENTS

[2004] IESC 29

Denham J.

Fennelly J.

McCracken J.

[S.C. NO. 130 OF 2004]

THE SUPREME COURT

Synopsis:

- [2004] 2 IR 456

The applicant who was arrested in this jurisdiction on foot of three warrants of arrest issued in the United Kingdom submitted that he was being unlawfully detained. The applicant submitted that after the coming into force of the 2003 Act, he could not be dealt with under the provisions of Part III of the1965 Act as amended as that Part had been repealed by s. 50 of the Act of 2003, save in limited circumstances, provided for in s. 50 (2) (a) and (b) of the Act of 2003 which, he submitted did not apply to his case. Consequently, the applicant submitted that the Assistant Commissioner of An Garda Siochana who endorsed the warrants was not entitled to do so under s. 43 of the 1965 Act.

Held by the Supreme Court (Denham, Fennelly, McCracken JJ) in allowing the appeal and ordering the release of the applicant: That the words in s. 50 of the Act of 2003 were clear and unambiguous and provided that the 1965 Act was repealed save where the warrants were produced to the Commissioner for the purposes of s. 43 of the 1965 Act prior to 1st January 2004. In this case the warrants were received in the Extradition Unit in Garda Headquarters but there was no evidence that they were produced to the Commissioner prior to the 1st January 2004. The applicable law was not the Act of 1965 and accordingly the warrants were void and the applicant's detention was unlawful.

Citations:

CONSTITUTION ART 40.4.2

EXTRADITION ACT 1965 S45

EXTRADITION ACT 1965 S47

EXTRADITION ACT 1965 S43

EXTRADITION ACT 1965 S44

EUROPEAN ARREST WARRANT ACT 2003

EXTRADITION ACT 1965 PART III

EUROPEAN ARREST WARRANT ACT 2003 S50

EUROPEAN ARREST WARRANT ACT 2003 S50(2)(a)

EUROPEAN ARREST WARRANT ACT 2003 S50(2)(b)

EUROPEAN ARREST WARRANT ACT 2003 S1(2)

EUROPEAN ARREST WARRANT ACT 2003 S4(1)

EXTRADITION ACT 1965 S42

EXTRADITION ACT 1965 S44(1)

CONCISE OXFORD DICTIONARY

STROUD STROUD'S JUDICIAL DICTIONARY OF WORDS & PHRASES 6ED 2071

HOWARD V COMMISSIONERS OF PUBLIC WORKS 1994 1 IR 101

GREALIS & CORBETT V DPP 2001 3 IR 144

1

Judgment delivered on the 13th day of May,2004by Denham J.

1. Appeal
2

Thomas James O'Rourke, the applicant/appellant, hereinafter referred to as the applicant, has brought this appeal against the decision of the High Court (Peart J.) delivered on the 26 th February, 2004 which held that the applicant is being detained in accordance with law and refused his. application for release under article 40.4.2 of theConstitution.

2. Facts on Arrest
3

The facts on the arrest of the applicant are not in issue and were set out fully by the High Court, as follows:

"The applicant was arrested in this jurisdiction on the13 th January, 2004 on foot of three warrants of arrest which was issued on the 18 th December, 2003 by the Crown Court at Kingston Upon Thames, England. These warrants are in respect of charges of robbery, conspiracy to rob, and agreeing to do certainacts with intent to pervert the course of justice. The offences are said to have been committed between September, 2001 and January, 2002. Upon his arrest he was brought before the High Court on 13 thJanuary, 2004, pursuant to the provisions of section 45 of the Extradition Act, 1965, as amended ("the 1965 Act").

Thereafter he has been remanded in custody pending the hearing of the application for an order for his rendition to the United Kingdom pursuant to the provisions of section 47 of the 1965 Act."

3. Facts as to system operated by Commissioner
4

The facts as to the receipt of the warrants and the system operated by the Commissioner was deposed to by Sergeant Michael Heffernan, asfollows:

"...the originals of the said warrants were received at Garda Headquarters from the Metropolitan Police on the 22 ndDecember, 2003 and endorsed for execution by Assistant Commissioner Egan on the 2 nd January, 2004. I say and believe that the receipt of the said original warrants on the 22 nd December, 2003 by Garda Headquarters amounts to a production of the warrants to the Commissioner for the purpose of section 43 of the Extradition Act, 1965as amended.

3. For the assistance of this Honourable Court I can set out the operational mechanics of the Garda Síochána Extradition Section. I say that a separate Extradition Section operates within the Garda Síochána and is located at Garda Headquarters in the Phoenix Park. I say that when warrants are received in the Extradition Section they are received there on behalf of the Assistant Commissioner with responsibility for extradition. The warrants, in the case of those coming from the United Kingdom, if it appears that the person may be in the State or may intend to enter the State, shall be endorsed for execution, subject to the provisions of the Extradition Act, 1965. For the purposes of considering whether the Attorney General will give a direction as set out in section 44 of the said Act the warrants must be sent to the Attorney General for his consideration. On receipt of the present warrants on the 22 nd December, 2003 the copy warrants and supporting documentation were sent on the same date to the office of the Attorney General for the purposes of section 44 of the Extradition Act, 1965as amended would be given (sic). Pursuant to instructions from the Attorney General on the 24 th December, 2003 the warrants were ready to be endorsed. They were subsequently endorsed on the2 nd January, 2004, having already been produced for production on the 22 nd December, 2003."

4. Question of Law
5

At issue in the High Court, and in this court on appeal, is a question of law. On behalf of the applicant it was submitted that after the coming into force of the European Arrest Warrant Act, 2003, hereinafter referred to as the Act of 2003, on the 1 stJanuary. 2004. theapplicant may not be dealt with under the provisions of Part III of the Extradition Act, 1965, as amended, hereinafter referred to as the Act of 1965, as that Part has been repealed by s. 50 of the Act of 2003, save in limited circumstances, provided for in s. 50 (2) (a) and (b) of the Act of 2003 which, it was submitted on behalf of the applicant, do not apply to this case. Consequently, it was submitted on behalf of the applicant, the Assistant Commissioner of An Garda Síochána who endorsed the warrants on 2 nd January, 2004 was not entitled to do so under s. 43 of the Act of 1965.

5. Law
6

The European Arrest Warrant Act, 2003is an Act to bring into effect a European Union Council framework decision of 13 th June, 2002 on the European Arrest Warrant and the surrender procedures between member states, to amend the Extradition Act, 1965and to provide for connected matters. The Act of 2003 states in s. 1 (2) that the Act comes into operation on 1 st January, 2004. The application of the Act is set out in s. 4 (1) which provides:

"Subject to subsections (2) and (3), this Act shall apply in relation to an offence, whether committed or alleged to have been committed before or after the commencement of this Act."

7

Subsections (2) and (3) are not relevant to this case. Thus, the 2003 Act provides that it will apply to an offence whether alleged to have been committed before or after the 1 st January, 2004, and the offences in this case were alleged to have been committed prior to1 st January, 2004. However, in repealing the Act of 1965, the Act of 2003 made provision as follows:

8

2 "50.(1) Part III of the Act of 1965 is repealed.

9

(2) Where, before the commencement of this Act, a warrant issued by a judicial authority in a place in relation to which Part III of the Act of 1965 applies was-

10

(a) produced to the Commissioner of the Garda Síochánafor the purpose of section 43 of the Act of 1965, or

11

(b) endorsed for execution under that Part,

12

then, notwithstanding the repeal of the said Part III effected by subsection (1), that Part shall, on and after the said commencement, continue to apply in relation to that warrant and the person named in that warrant shall be dealt with under and in accordance with thatPart."

13

It is this section which the respondents submit applies to this case. The warrants were not endorsed before 1 st January, 2004 and so s. 50 (2) (b) does not apply.

14

At issue is whether s. 50 (2) (a) of the Act of 2003 applies. It is clear that the words "produced" and "for the purposes of s. 43 of the Act of 1965" are at the core of the case. The person to whom the warrant is "produced" is also important. The Act of 2003 exempts from the procedures under that Act a warrant which was issued by a judicial authority in a place to which Part III of the Act of 1965 applies where prior to 1 st January, 2004 it was produced to the Commissioner of the Garda Síochána for the purposes of s. 43 of the Act of 1965.

6. "Produced"
15

Section 50 (2) of the Act of 2003 refers to a warrant which, before the1 st January, 2004, was "produced" to the Commissioner of the Garda Síochána for the purposes of s. 43 of the Act of 1965. Thus, the Act of 2003 exempts from that Act a warrant which was issued by a judicial authority in a place to which Part III of the Act of 1965 applies where prior to 1 stJanuary, 2004 it was produced to the Commissioner of the GardaSíochána for the purposes of s. 43 of the Act of 1943. The question then is whether before 1 st January, 2004 the warrants were "produced to the Commissioner of the GardaSíochána for the purposes of section 43 of the Act of 1965." The relevant facts, as found by the learned trial judge, and not contested, were as follows:

"...the evidence of Sgt. Michael Heffernan of An...

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