The Minister for Justice & Equality v Skiba

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 05 December 2018
• Neutral Citation: [2018] IESC 68
• Court: Supreme Court
• Docket Number: [S.C. No. 33 of 2017],[Supreme Court Appeal No. 2017/33] [Court of Appeal Record No. 2016/594] [High Court Record No. 2016/86 EXT]
• Date: 05 December 2018

[2018] IESC 68

THE SUPREME COURT

McKechnie J.

Clarke C.J.

O'Donnell Donal J.

McKechnie J.

MacMenamin J.

O'Malley Iseult J.

[Supreme Court Appeal No. 2017/33]

[Court of Appeal Record No. 2016/594]

[High Court Record No. 2016/86 EXT]

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003, AS AMENDED

Between /

THE MINISTER FOR JUSTICE AND EQUALITY

Applicant/Respondent

-and-

PIOTR PAWEL SKIBA

Respondent/Appellant

Force majeure – Surrender – Foreseeability – Appellant seeking to appeal to the Supreme Court on a single net legal issue – Whether the Court of Appeal was correct in its determination of the applicable law in light of the decision of the CJEU in Case C-640/15 Tomas Vilkas

Facts: The High Court, on the 1st December, 2016, ordered the surrender of the appellant, Mr Skiba, to the Republic of Poland pursuant to s. 16(1) of the European Arrest Warrant Act 2003. His surrender was set for the 22nd December, 2016, to be effected by commercial airline. Having arrived at the departure gate at Dublin Airport, the appellant refused to embark the aircraft. It being apparent that it would require more than minimal force to get him aboard, the Captain of the airplane refused to allow him to board. The next day the respondent, the Minister for Justice and Equality, made an application in the High Court seeking to fix a new date for surrender. A prerequisite to the making of such order is that the original surrender must fail “because of circumstances beyond the control” of the States concerned. If such condition is not satisfied, the High Court must discharge the requested person. Humphreys J decided not to follow the then recently delivered Opinion of Advocate General Bobek in Case C-640/15 Tomas Vilkas, which had stated that “circumstances beyond the control” must be understood as referring only to situations of force majeure as understood in EU law; thus such circumstances can be invoked only if, inter alia, they could not be foreseen by the States in question. Humphreys J preferred instead to apply the “normal” meaning of force majeure, which does not impart any element of foreseeability. The judge fixed the 5th January, 2017, as the new date for the surrender of Mr Skiba. The appellant appealed to the Court of Appeal. By judgment dated the 12th January, 2017, that Court found that the appellant’s resistance to boarding the plane was not foreseeable in the circumstances of the case, and accordingly that it was a circumstance “beyond the control” of the State; thus the High Court judge’s assessment was correct, and the appeal was dismissed. Mr Skiba was surrendered to Poland on the 14th January, 2017. Eleven days later the Court of Justice of the EU delivered its judgment in Vilkas and adopted an interpretation of “circumstances beyond the control” of the Member States which was in line with the Advocate General’s Opinion. The appellant was granted leave to seek a further appeal to the Supreme Court on a single net legal issue. The sole question posed asked whether the Court of Appeal was correct in its determination of the law applicable in this case in light of the subsequent decision of the Court of Justice in Vilkas. In essence the issue was whether Mr Skiba’s solicitor’s phone call to the Irish authorities rendered it foreseeable that he would refuse to board the aircraft on the 22nd December; if so, what transpired on that date could not be said to have been “beyond the control” of the State and thus the High Court should have made an order discharging the appellant, rather than fixing a new date for surrender.

Held by McKechnie J that he was satisfied that Mr Skiba’s refusal to board the plane constituted a “circumstance beyond the control” of the State within the meaning of s. 16(5)(a) of the 2003 Act, which is to be interpreted in line with the definition of force majeure laid down in the judgment of the Court of Justice in Vilkas; it was an abnormal circumstance beyond the control of the State. Although he accepted that an argument could be made both ways as to whether Mr Skiba’s resistance was foreseeable, on balance McKechnie J was of the view that it was not reasonably foreseeable. Based on the information available to the State authorities and the timeframe involved, McKechnie J held that it was also not possible to avoid the consequences of his resistance in spite of the exercise of all due care; his resistance in the circumstances was such as to prevent his surrender within the time period laid down, rather than merely to render more it difficult. As a consequence McKechnie J was satisfied that the preconditions to the fixing of a new date for surrender pursuant to s. 16(5)(a) of the 2003 Act existed, and that the High Court was entitled in the circumstances to so do; in so doing, however, he adopted an interpretation of force majeure which was not in keeping what that subsequently laid down by the Court of Justice in Vilkas; as implicitly recognised by the Court of Appeal, this requires an analysis of the foreseeability of the circumstances said to constitute the force majeure, as it also does an assessment of the other elements of force majeure as described in Vilkas and as applied in this judgment.

McKechnie J held that he would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 5 ^th day of December, 2018

Introduction

1 On the 1st December, 2016, the High Court ordered the surrender of Mr. Skiba (also referred to as ‘the appellant’) to the Republic of Poland pursuant to section 16(1) of the European Arrest Warrant Act 2003, as amended. That State had requested his extradition so that he could serve two sentences of imprisonment for offences committed there. His surrender was set for the 22nd December, 2016. It was to be effected in the usual manner, that is, by commercial airline.

2 The reader will not be surprised to learn that the planned surrender was not as straightforward as anticipated. On the 12th December, the appellant's solicitors contacted the Garda Extradition Unit to inform it that Mr. Skiba had a fear of flying. This was the extent of the information conveyed. There followed a course of correspondence between the relevant Irish and Polish authorities, with the former seeking to make alternative travel arrangements for Mr. Skiba's surrender. Ultimately, however, it was decided to proceed with the plan as originally conceived. Having arrived at the departure gate at Dublin Airport, the appellant refused to embark the aircraft. It being apparent that it would require more than minimal force to get him aboard, the Captain of the airplane refused to allow him to board.

3 The next day the Minister for Justice and Equality (‘the Minister’) made an application in the High Court seeking to fix a new date for surrender. A prerequisite to the making of such order is that the original surrender must fail ‘because of circumstances beyond the control’ of the States concerned. If such condition is not satisfied, the High Court must discharge the requested person. Humphreys J. decided not to follow the then recently delivered Opinion of Advocate General Bobek in Case C-640/15 Tomas Vilkas, which had stated that ‘circumstances beyond the control’ must be understood as referring only to situations of force majeure as understood in EU law; thus such circumstances can be invoked only if, inter alia, they could not be foreseen by the States in question. Incidentally the preliminary reference in that case had been made by the Irish Court of Appeal. Humphreys J. preferred instead to apply the ‘normal’ meaning of force majeure, which does not impart any element of foreseeability. The learned judge fixed the 5th January, 2017, as the new date for the surrender of Mr. Skiba.

4 The appellant appealed to the Court of Appeal. By judgment dated the 12th January, 2017, that Court found that the appellant's resistance to boarding the plane was not foreseeable in the circumstances of the case, and accordingly that it was a circumstance ‘beyond the control’ of the State. Thus the High Court judge's assessment was correct, and the appeal was dismissed. Mr. Skiba was surrendered to Poland on the 14th January, 2017.

5 Eleven days later the Court of Justice of the European Union (‘the CJEU’) delivered its judgment in C-640/15 Tomas Vilkas (‘Vilkas’) and adopted an interpretation of ‘circumstances beyond the control’ of the Member States which was in line with the Advocate General's Opinion. The appellant was granted leave to seek a further appeal to this Court on a single net legal issue. The sole question posed asks whether the Court of Appeal was correct in its determination of the law applicable in this case in light of the subsequent decision of the Court of Justice in Vilkas. In essence the issue is whether Mr. Skiba's solicitor's phone call to the Irish authorities rendered it foreseeable that he would refuse to board the aircraft on the 22nd December; if so, what transpired on that date could not be said to have been ‘beyond the control’ of the State and thus the High Court should have made an order discharging the appellant, rather than fixing a new date for surrender.

6 At the hearing of the appeal, another issue arose out of the discussion of the judgment of the CJEU in Vilkas. That Court held that the expiry of the time limits for surrender does not relieve the executing Member State of its obligation to carry on with the procedure for executing a European Arrest Warrant (‘EAW’) and to surrender the requested person, and that the relevant authorities must agree on a new surrender date. The issue that arose on the appeal related to the meaning of the word ‘discharged’ in section 16(5)(b) of the European Arrest Warrant Act 2003, as amended, and in particular how that subsection should be interpreted in light of the decision of the CJEU. To that end the Court invited further written...