Smr v Governor of Wheatfield Prison

• Jurisdiction: Ireland
• Judgment Date: 28 May 2009
• Date: 28 May 2009
• Docket Number: [2005 No. 13 EXT]
• Court: High Court

S.M.R. v. Governor of Wheatfield Prison

In the matter of an inquiry pursuant to Article 40.4.2ø of the Constitution of Ireland. S.M.R.

Applicant

and

The Governor of Wheatfield Prison

Respondent

[2009] IEHC 442,

[2005 No. 13 EXT]

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Extradition - European arrest warrant - Detention - Domestic warrant withdrawn prior to surrender of person named in warrant - Statutory interpretation - Whether withdrawal of domestic warrant rendered European arrest warrant invalid - Extradition Act 1965 (No. 17) - European Arrest Warrant Act 2003 (No. 45), ss. 2, 4A, 10, 11, 13, 16 and 37 - Criminal Justice (Terrorist Offences) Act 2005 (No. 2), ss. 69, 71, 72 and 76 - Constitution of Ireland, Articles 40.4.1ø and 40.4.2ø - Council Framework Decision 2002/584/JHA, articles 2, 3, 4 and 8.

The applicant was the subject of a European arrest warrant issued by the United Kingdom. He was arrested in the State on foot of the warrant and objected to his surrender. The High Court subsequently upheld his objections and refused to order his surrender. The Minister for Justice appealed that decision to the Supreme Court. That court allowed the appeal and ordered the applicant's surrender (seeMinister for Justice v. S.M.R. [2007] IESC 54,[2008] 2 I.R. 242).

After the Supreme Court had given its judgment it emerged that the domestic warrant issued in the United Kingdom grounding the application for the European arrest warrant had, between the time of the High Court case and the hearing of the Supreme Court appeal, been withdrawn. The Supreme Court granted a stay on its order for the surrender of the applicant pending a High Court challenge to the lawfulness of his detention pursuant to Article 40.4.2ø of the Constitution.

The applicant argued that under the law of England a domestic warrant had to exist before a European arrest warrant could issue. He argued that as that warrant had been withdrawn the European arrest warrant was no longer valid and his detention for surrender under that warrant was therefore unlawful.

Held by the High Court (McKechnie J.), in upholding the legality of the applicant's detention, 1, that, once a European arrest warrant had validly issued, it was a stand alone instrument with independent status separate and distinct from the underlying domestic warrant. The validity of such a warrant could only then be undermined on the grounds envisaged in the framework decision and the European Arrest Warrant Act 2003. As no such grounds existed in this case, and as the European arrest warrant in question had been validly issued, the applicant's detention was not unlawful.

Minister for Justice v. Altaravicius [2006] IESC 23,[2006] 3 I.R. 148 applied; Minister for Justice v. Fallon [2005] IEHC 321, (Unreported, High Court, Finlay Geoghegan J., 9th September, 2005) considered.

2. That a purposeful interpretation, embracing the aims and objectives of the framework decision underlying the Act of 2003, should be given to the question of the validity of European arrest warrants, and the question of the validity of warrants should be approached in a spirit of mutual trust and respect.

Criminal Proceedings Against Pupino (Case C-105103)[2005] E.C.R. I-5285 and Van Colsan and Kamann (Case 14183) [1984] E.C.R. 1891 followed. R. (Hilali) v. Governor of Whitemoor Prison [2008] UKHL 3, [2008] 1 A.C. 805 approved.

Cases mentioned in this report:-

Criminal Proceedings against Pupino (Case C-105/03)[2005] E.C.R. I-5285, [2006] Q.B. 83; [2005] 3 W.L.R. 1102; [2006] 1 All E. R. 142.

Dundon v. Governor of Cloverhill Prison [2005] IESC 83, [2006] 1 I.R. 518; [2006] 1 I.L.R.M. 321.

Howard v. Commissioner of Public Works [1994] 1 I.R. 101; [1994] 2 I.L.R.M. 301.

Minister for Justice v. Altaravicius [2006] IESC 23, [2006] 3 I.R. 148; [2006] 2 I.L.R.M. 241.

Minister for Justice v. Brennan [2007] IESC 21, [2007] 3 I.R. 732; [2007] 2 I.L.R.M. 241.

Minister for Justice v. Fallon [2005] IEHC 321, (Unreported, High Court, Finlay Geoghegan J., 9th September, 2005).

Minister for Justice v. Fallon [2005] IEHC 322, (Unreported, High Court, Finlay Geoghegan J., 14th October, 2005).

Minister for Justice v. Stapleton [2007] IESC 30, [2008] 1 I.R. 669; [2008] 1 I.L.R.M. 267.

O'Rourke v. Governor of Cloverhill Prison [2004] IESC 29, [2004] 2 I.R. 456.

R. (Hilali) v. Governor of Whitemoor Prison [2008] UKHL 3, [2008] 1 A.C. 805; [2008] 2 W.L.R. 299; [2008] 2 All E.R. 207.

Von Colson and Kamann (Case 14/83) [1984] E.C.R. 1891.

Inquiry pursuant to Articke 40 of the Constitution

The facts have been summarised in the headnote and are more fully set out in the judgment of McKechnie J., infra.

A domestic warrant for the applicant's arrest issued in the United Kingdom on the 14th January, 2003. A European arrest warrant subsequently issued on the 17th February, 2005. The applicant was arrested in Ireland on that warrant on the 18th April, 2005, and later granted bail. Points of objection were lodged on his behalf and the High Court (Peart J.) gave judgment on the 15th November, 2005, refusing to order the applicant's surrender (see [2005] IEHC 377). The Minister for Justice successfully appealed to the Supreme Court which ordered the applicant's surrender on the 15th November, 2007 (see Minister for Justice v. S.M.R.[2007] IESC 54, [2008] 2 I.R. 242). That order was affirmed on the 23rd November, 2007.

On the 27th November, 2007, the Supreme Court was made aware that the domestic warrant had been withdrawn on the 17th July, 2007. A stay of 48 hours on the order for the applicant's surrender was granted in the event that the applicant brought a challenge to the legality of his detention pursuant to Article 40.4.2ø and the Supreme Court ordered that the High Court would have jurisdiction to review all issues between the parties, including the validity of its own orders for the applicant's surrender.

The applicant brought an application for an inquiry into the lawfulness of his detention on the 28th November, 2007, was granted leave for such an inquiry and was granted bail pending its determination. The inquiry was heard before the High Court (McKechnie J.) on the 18th December, 2008.

Cur. adv. vult.

McKechnie J. 28th May, 2009

[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 "Act of 2003"). 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 Act of 2003. 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?

[2] The background circumstances giving rise to these proceedings are as follows:-

June, 2000 to September, 2001:- it is alleged that the applicant (Mr. R.) committed three acts of indecent assault against a nine year old;

14th January, 2003:- Hendon Magistrates Court issues a warrant for his arrest on the resulting charges (the "Hendon warrant" or the "domestic warrant");

17th 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");

18th April 2005:-the applicant is arrested in this jurisdiction on foot of the said European arrest warrant;

19th April, 2005:-the applicant is released on bail by the High Court awaiting the hearing of an application under s. 16 of the Act of 2003. In such proceedings the Minister for Justice, Equality and Law Reform (the "central authority") is the applicant and Mr. R. is the respondent;

11th October, 2005:- this application is heard by the High Court;

15th November, 2005:- Peart J. refuses to order the applicant's surrender and dismisses the application;

December, 2005:- the Minister for Justice, Equality and Law Reform, appeals to the Supreme Court: the applicant cross-appeals;

8th February, 2007:- the appeal is heard by the Supreme Court and judgment reserved;

17th July, 2007:- the "Hendon warrant" is withdrawn by order of the Hendon Magistrates Court;

15th 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;

23rd 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;

27th November, 2007:- at 2.00 p.m. the Supreme Court is informed that on the 17th July, 2007, the Hendon warrant was withdrawn by judicial authority. No such warrant, therefore, existed as of the 15th November, 2007, the operative date;

28th November, 2007:- Hendon Magistrates Court issues a second warrant, in exactly the same terms, as the "Hendon warrant" of the 14th January, 2003.

[3] Having had this situation outlined to it, the Supreme Court heard a submission on behalf of the applicant 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 Act of 2003. An issue was thus...