The Minister for Justice and Equality -v- Balmer

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 10 September 2014
• Neutral Citation: [2014] IEHC 459
• Court: High Court
• Docket Number: [2012 No. 321 EXT.]
• Date: 10 September 2014

[2014] IEHC 459

THE HIGH COURT

[2012 No. 321 EXT.]

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

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

MICHAEL ANTHONY BALMER

RESPONDENT

European Arrest Warrant – Jurisdiction – the European Arrest Warrant Act of 2003 – Surrender – Detention – Preventative protection – Revocation of License – Life in Prison sentence – European Convention on Human Rights

The facts of this case involved the respondent being issued with a European arrest warrant on the charge of murder that took place in the U.K. The applicant in this case, The Minister for Justice and Equality requests that in accordance of s. 16 of the European Arrest Warrant Act of 2003, the respondent should be surrendered to such person as is duly authorised by the issuing State to receive him. The respondent does not consent to his surrender to the U.K. The issue came before Edwards J. in the High Court, who was tasked with inquiring into whether the requirements of s. 16 of the Act of 2003 had been met and also considering the specific objections to the respondent's surrender.

Edwards J. considered the specific objections of the respondent. Counsel for the respondent claimed that the proposed surrender of the respondent is contrary to Article 5 of the European Convention on Human Rights and was unconstitutional. Relying on this legislation Counsel for the respondent stated that the respondent doesn’t continue to present a risk to the public and therefore shouldn’t be placed under preventive protection. By virtue of having been released on licence, it is self-evident that the punitive term of imprisonment has been served. The Respondent has already served just under 27 years' imprisonment, that being the punitive element of the sentence, and is now sought to be returned to prison on grounds of public protection. Edwards J stated that in the circumstances the proposed surrender measure would not result in the respondent being subjected to preventative detention and accordingly it would not on that account contravene any provision of the Constitution. The respondent’s surrender is not therefore prohibited under s. 37(1)(b) of the Act of 2003.Edwards J. analyzed the case law relating to sentence imposed. Edwards J. concluded that this type of sentence considered by the Supreme Court in the Caffrey case was indistinguishable from the sentence imposed upon the respondent in the present case. As for the respondent’s reliance on EU Legislation, Edwards J. decided to acknowledge the jurisprudence of the E.Ct.H.R. that has been opened to it, but conceded that he is not prepared to express any view as to whether the continued detention of the respondent would or would not in fact be an article 5 compliant. Edwards J concluded that that would be a matter to be determined before the Parole Board and/or the courts in the issuing state. The Parole Board and/or the courts in the issuing state are far better equipped to make the necessary judgment, and there is no reason to believe that the respondent could not seek an effective remedy there should it be necessary for him to do. Edwards J affirmed that in this instance it would be appropriate to surrender the respondent in respect of the offence to which the European arrest warrant relates.

Mr Justice Edwards

JUDGMENT of Mr Justice Edwards delivered on the 10th of September, 2014.

1 Introduction

2 1. The respondent is the subject of a European arrest warrant issued by the United Kingdom of Great Britain and Northern Ireland (hereinafter “the U.K.”) on the 31st of October, 2012. The warrant was subsequently received in this jurisdiction and was duly placed before the High Court which endorsed it. The respondent was arrested on the 11th of June, 2013, and on the following day he was brought before the High Court in accordance with s. 13 of the European Arrest Warrant Act 2003, as amended (hereinafter “the Act of 2003”) when a date was fixed for the purposes of s. 16 of the Act of 2003. Thereafter the matter was adjourned from time to time, until it came on for hearing before this Court on the 4th of March, 2014. Following the s. 16 hearing commenced on that date, and further hearings on the 10th of March, 2014, and the 19th of March, 2014, the Court reserved its judgment, which it now delivers.

3 2. This Court is asked by the applicant to make an Order pursuant to s. 16 of the Act of 2003 directing that the respondent be surrendered to such person as is duly authorised by the issuing State to receive him. The respondent does not consent to his surrender to the U.K. and this Court's jurisdiction to make an order directing that the respondent be surrendered is dependant upon a judicial finding that the requirements of s. 16 of the Act of 2003 have been satisfied. Accordingly, the Court has been put on inquiry as to whether the requirements of s. 16 of the Act of 2003, both controversial and uncontroversial, have been satisfied. In so far as specific points of objection are concerned, the Court has had to consider a number of specific objections to the respondent's surrender and it is proposed later in this judgment to consider the specific objections pleaded.

4 Uncontroversial Matters

5 3. The Court has before it an affidavit of arrest sworn by Garda Finbar O’Regan on the 18th of June, 2013. No issue has been raised as to identity. There is an acceptance by the respondent that he is the person to whom the European arrest warrant relates.

6 4. The Court has received and scrutinised a true copy of the European arrest warrant in this case, and further has taken the opportunity to inspect and compare the original European arrest warrant which is on the Court's file and which bears this Court's endorsement. The Court is satisfied following its consideration of this evidence and documentation that:

(a) the European arrest warrant in this case has been endorsed for execution in accordance with s. 13 of the 2003 Act;

(b) the European arrest warrant in this case was duly executed and the person who was arrested and who was brought before the Court is the person in respect of whom the European arrest warrant was issued;

(c) the European arrest warrant in this case is manifestly in the correct form;

(d) although the European arrest warrant in this case is a conviction type warrant there is no suggestion that the respondent was tried in absentia;

(e) the Court is not required, under ss. 21A, 22, 23, or 24 of the Act of 2003 (as inserted by ss. 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the respondent.

7 5. In addition the Court is satisfied to note the existence of the European Arrest Warrant Act 2003 (Designated Member States) Order 2004 ( S.I. No. 4 of 2004) (hereinafter “the 2004 Designation Order”), and duly notes that by a combination of s. 3(1) of the Act of 2003, and Article 2 of, and the Schedule to, the 2004 Designation Order, the “United Kingdom of Great Britain & Northern Ireland” is designated for the purposes of the Act of 2003 as being a State that has under its national law given effect to the Framework Decision.

8 6. The European arrest warrant in this case relates to a single offence, i.e. murder, contrary to common law. The respondent was convicted at a trial before Exeter Crown Court and was sentenced to life imprisonment on the 26th of March, 1984.

9 Sentencing of the Respondent

10 7. According to Part (c) of the warrant the murder charge carried a maximum sentence of up to life imprisonment, and as stated in the last paragraph a sentence of life imprisonment was actually imposed. Part (c) also contains the following further information with respect to the remaining sentence to be served:

“[T]he requested person has been recalled following a breach of licence conditions. Upon his return to prison his detention will be reviewed by the Parole Board. It is not possible to state how long he will remain in prison as it is a matter for the Parole Board as to whether he will be re-released on licence in the future.”

11 8. Part (f) of the standard form of the European arrest warrant mandated by Council Framework Decision of 13th June, 2002, on the European Arrest Warrant and the Surrender Procedures between Member States (2002/584/JHA) (“the Framework Decision”) makes provision for the furnishing, at the option of the issuing judicial authority, of other information that may potentially be relevant or of assistance. The following appears in Part (f) of the warrant under present consideration:

“The requested person was sentenced to life imprisonment on the 26/ 3/1984. He was released on licence on the 2/ 3/2011. A copy of the licence is attached dated 18/ 2/2011 (enclosure 1). The conditions of the licence are set out in that document. On the 19/ 3/2012 he was recalled to prison by the Secretary of State under section 32(1) of the Crime (Sentences) Act 1997 having breached the conditions of his licence, a copy of the recall notice is attached (enclosure 2). His return is requested for him to be recalled to serve his sentence.”

12 9. The Court has considered the copy licence attached to the warrant as enclosure 1, and also the revocation of licence and recall notice attached to the warrant as enclosure 2. It is not necessary for the purposes of this judgment to recite the exact terms of the licence or the revocation of licence documents. However, the recall notice that informed the respondent of the fact that his licence had been revoked indicated that he was being recalled to custody because he had “allegedly committed a further offence” and because of “poor behaviour”.

13 The notice went on to state:

“You will receive more detailed reasons once you have been returned to custody.

The police will return...