O'Rourke v Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 26 February 2004
• Neutral Citation: [2004] IEHC 51
• Court: High Court
• Docket Number: 3EXT/2004
• Date: 26 February 2004

[2004] IEHC 51

THE HIGH COURT

3EXT/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

AND IN THE MATTER OF THOMAS JAMES O'ROURKE PRESENTLY IN

CUSTODY IN CLOVERHILL

BETWEEN:

THOMAS JAMES O'ROURKE

APPLICANT

AND

THE GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

Citations:

EXTRADITION ACT 1965 S45

EXTRADITION ACT 1965 S47

CONSTITUTION ART 40.2.2

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)

EXTRADITION ACT 1965 S43

EUROPEAN ARREST WARRANT ACT 2003 S1(2)

EUROPEAN ARREST WARRANT ACT 2003 S4(1)

EUROPEAN ARREST WARRANT ACT 2003 S4(2)

EUROPEAN ARREST WARRANT ACT 2003 S4(3)

EUROPEAN ARREST WARRANT ACT 2003 S50(2)

EXTRADITION ACT 1965 S43(1)(b)

EXTRADITION ACT 1965 S44(1)

EXTRADITION ACT 1965 S42

EXTRADITION ACT 1965 S44

EXTRADITION ACT 1965 S43(2)(b)

Synopsis:

CRIMINAL LAW

Detention

Application for release - Whether detention lawful - Whether transitional arrangements on coming into force of European Arrest Warrant Act 2003 applied - Interpretation of "produced" in s. 43(1)(b) of Extradition Act 1965 - Bunreacht na hÉireann 1937, Article 40.4.2 (2004/3EXT - Peart J - 26/2/2004)

O'Rourke v Governor of Cloverhill Prison

Facts: The applicant applied for his release pursuant to Article 40.4.2 of the Constitution on the grounds that his detention was unlawful. It was contended that the Assistant Commissioner of An Garda Siochana who endorsed the warrants was not entitled to do so pursuant to s. 43 of the Extradition Act 1965 since the section was spent following the coming into force of the European Arrest Warrant Act 2003. The central issues concerned the interpretation of the word “produced” in s. 43(1)(b) of the 1965 Act and whether the transitional arrangements on the coming into force of the Act of 2003 applied.

Held by Peart J. in refusing the application for release that in interpreting a statute the court had to where necessary refer to the entire Act in order to glean the intention of the legislature. The receipt of warrants in the office of the Commissioner of An Garda Siochana constituted the warrants being “produced” and therefore the applicant’s detention was lawful since it was covered by the transitional arrangements set forth in s. 50(2) of the 2003 Act.

Reporter: R.W.

Judgment of

Mr Justice Michael Peart

1 The applicant was arrested in this jurisdiction on the 13^thJanuary 2004 on foot of three warrants of arrest which were 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 certain acts with intent to pervert the course of justice. The offences are said to have been committed between September 2001 and January 2002.

2 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 An application has now been made on his behalf for his release pursuant to Article 40.4.2 of the Constitution, and it is contended by Kieran Kelly BL, on his behalf, that his detention is unlawful. It is contended that in this case, following the coming into force of the European Arrest Warrant Act,2003("the 2003 Act") on the 1^st January 2004, the applicant cannot be dealt with, as he has been, under the provisions of Part III of the 1965 Act, as amended, since that Part has been repealed by Section 50 of the 2003 Act, and remains in force only in certain circumstances set forth in section 50 (2) (a) and (b) of the 2003 Act, and which, in the applicant's submission, do not apply in this case. As a result it is submitted that the Assistant Commissioner of An Garda Siochana who endorsed these warrants on the 2^nd January 2004 was not entitled to do so pursuant to the provisions of section 43 of the 1965 Act, since that section was spent since the previous day, the 1^st January 2004.

4 Section 1(2) of the 2003 Act states clearly that the Act comes into operation on the 1^st January 2004.

5 Section 4(1) of the 2003 Act provides that subject to subsections ( 2)and (3) (which are not relevant to this application,),"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. "

6 These offences, as I have already referred to, are alleged to have been committed between September 2001 and January 2002, so they are clearly before the commencement of the Act.

7 However, section 50(2) of the 2003 Act provides as follows:

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

(a) produced to the Commissioner of the Gar da Siochana for the...