The Minister for Justice and Equality v T.M.

JurisdictionIreland
JudgeMs. Justice Donnelly
Judgment Date01 June 2018
Neutral Citation[2018] IEHC 320
Docket Number[RECORD NO. 2015 254 EXT],[2015 No. 254 EXT]
CourtHigh Court
Date01 June 2018
BETWEEN
THE MINISTER FOR JUSTICE AND EQUALITY
APPLICANT
AND
T. M
RESPONDENT

[2018] IEHC 320

[RECORD NO. 2015 254 EXT]

THE HIGH COURT

Bail – Jurisdiction – European arrest warrant – High Court seeking clarification – Whether the High Court is entitled, of its own motion, to consider granting bail to a person sought for surrender pursuant to a European Arrest Warrant

Facts: The respondent, who was arrested on 3rd May 2017 on a European arrest warrant (EAW) issued by a judicial authority in the United Kingdom seeking his surrender for the purpose of criminal prosecution, never made an application for bail. The High Court had grave concerns about whether it should continue to remand him in custody in circumstances where no inquiry had ever been made by the Court as to whether he was a person entitled to bail.

Held by Donnelly J that in accordance with the jurisdiction of the High Court to grant bail, the full original jurisdiction of the High Court in both civil and criminal matters and the powers of the High Court in respect of applications for surrender on EAWs, the High Court had jurisdiction to enquire into whether the respondent should continue to be remanded in custody.

Donnelly J proceeded to hear from the applicant, the Minister for Justice and Equality, the grounds upon which the Minister asserted that the respondent should be refused bail.

Judgment approved.

JUDGMENT of Ms. Justice Donnelly delivered on the 1st day of June, 2018
1

This judgment raises a highly unusual question: is the High Court, as executing judicial authority, entitled, of its own motion, to consider granting bail to a person sought for surrender pursuant to a European Arrest Warrant ('EAW')? This question arises in circumstances where this respondent, who was arrested on 3rd May 2017 on an EAW issued by a judicial authority in the United Kingdom ('the UK') seeking his surrender for the purpose of criminal prosecution, has never made an application for bail.

2

The case has been adjourned pending the outcome of the case of Minister for Justice and Equality v. O'Connor (Supreme Court [2017] IEHC 518). In that case the Supreme Court made a referral to the Court of Justice of the European Union ('The CJEU') seeking a preliminary ruling on the impact on surrender procedures of the triggering by the UK of the withdrawal mechanism set out in Article 50 of the Treaty on the European Union. The respondent has requested that his case be adjourned to await the decision of the Supreme Court.

3

At an early stage in these proceedings, the respondent's then counsel requested the Court to seek a psychiatric report on the respondent as his legal representatives were having difficulties obtaining instructions. A psychiatric report was duly ordered and was provided by Dr. Francis John Kelly, Consultant Forensic Psychiatrist, at the Central Mental Hospital in Dundrum. It is unnecessary to go into the details of that report but Dr. Kelly concluded that he could find no evidence of a major mental illness. His mental state was stable, he was able to give a coherent account of himself and his current thoughts, and he viewed the respondent as having capacity to understand, retain and use information given to him to reach an informed opinion and decision. In terms which were more applicable to a criminal trial, he found that in his opinion, the respondent was fit to attend court and stand trial.

4

When the medical report was presented to the Court, there was no request that a formal capacity hearing should take place and the Court did not consider it necessary of its own motion to have a formal capacity hearing. During the course of the proceedings, the respondent changed solicitor and counsel. His new solicitor and counsel also did not press for any capacity hearing. Neither his previous solicitor and counsel, nor his present solicitor and counsel, made any application for bail on behalf of the respondent; they have never been instructed to do so.

5

As the respondent is sought for prosecution in the UK, the principles set out in Attorney General v. O'Callaghan [1966] IR 501 would apply to any considerations as to whether he should be granted bail. In essence, the presumption of innocence leads to a presumption of entitlement to bail. In the usual course where an application for bail is made, it would be for the State to show that there is likelihood of flight or interference with witnesses and that bail should not be granted.

6

The respondent is now remanded in custody to a date in June 2018, and his case will almost certainly be further remanded after that date. As a result, this Court had grave concerns about whether it should continue to remand him in custody, in circumstances where no inquiry has ever been made by the Court as to whether he is a person entitled to bail. At first view, this may seem an abstract or moot concern of the Court because it may be that even if bail is granted he would not take it up. Despite the potential for the respondent not to take up court granted bail, the responsibility of the High Court to protect the right to liberty and/or the extent of that responsibility, is nonetheless important to clarify where such a fundamental right is at stake.

Submissions
7

Counsel for the respondent submitted that the issue of whether the Court had jurisdiction of its own motion to grant bail was one for the Court to determine but thereafter made no further submissions. Counsel for the respondent again clarified to the Court that no application for bail was being pursued.

8

From the outset, the minister adopted the position that the Court had no jurisdiction to grant bail in the absence of an application for bail. Counsel submitted that it was for the respondent to apply for bail. He was a person with autonomy and it was his responsibility and his entitlement to apply for bail. In the absence of an application for bail, the only role of the Court was to remand him in custody. Counsel submitted that he had been unable to find any legal authority that a judge could grant bail in the absence of it being predicated on an application for bail.

9

Counsel referred to s. 13(5) of the European Arrest Warrant Act, 2003 as Amended ('the Act of 2003'). Section 13(5) of the Act of 2003 provides:

'A person arrested under a European arrest warrant shall, as soon as may be after his or her arrest, be brought before the High Court, and the High Court shall, if satisfied that that person is the person in respect of whom the European arrest warrant was issued—

(a) remand the person in custody or on bail (and, for that purpose, the High Court shall have the same powers in relation to remand as it would have if the person were brought before it charged with an indictable offence) [emphasis added],

(b) fix a date for the purpose of section 16 (being a date that falls not later than 21 days after the date of the person's arrest),

and

(c) ....'

10

Counsel thereafter referred to the Bail Act, 1997 ('the Act of 1997'), which, in his submission, was replete with references to 'application for bail'. He referred to the position in s. 1(A) of the Act of 1997 which provides that a person who is applying for bail must provide a statement outlining certain matters. He referred to s. 2 of the Act of 1997, which deals with the objections to obtaining bail in circumstances where an application for bail has been made. Section 3 of the Act of 1997 refers to a renewal of a bail application which has previously been refused under s. 2 of that Act. He also referred to s. 28(3) of the of the Criminal Procedure Act of 1967 ('the Act of 1967'), which refers to an applicant for bail. He referred also to the provisions of O. 84 r. 15(1) of the Rules of the Superior Court which refers to an application for bail.

11

Counsel submitted that those legal provisions demonstrated that a person in custody must apply for bail. Absent such an application, there was no jurisdiction for the High Court to intervene. He acknowledged that s. 5 and 6 of the Act of 1997 referred to a court admitting a person in custody to bail and did not refer to an actual application for bail having been made. Those sections of the Act of 1997 refer to payment of moneys into court and conditions of bail. Counsel also referred to the case of Rice v. Mangan [2009] 3 IR 1 which indicates that a judge can, of his or her own motion, revoke bail or impose conditions on to bail where they have not been sought by the prosecution. However, he submitted that it cannot be used to set out a principle that a judge can grant bail of their own accord.

12

Counsel also recognised the impact of the decision in Case C 237/15 PPU Minister for Justice and Equality v. Lanigan (16th July 2015) given by the Court of Justice of the European Union ('CJEU'). Article 12 of the framework decision relates to keeping the person in detention and provides as follows:

'Where a person is arrested on the basis of a European Arrest Warrant, the executing judicial authority shall take a decision on whether the requested person should remain in detention, in accordance with the law of the executing member state. The person may be released provisionally at any time in conformity with the domestic law of the executing member state, providing that the competent authority of the member state takes all the measures it deems necessary to prevent the person absconding.'

13

Counsel referred to paras 52-63 of Lanigan. It is appropriate to quote from the relevant parts of those paragraphs. The CJEU stated as follows:

52. 'It follows that Article 12 of the Framework Decision, read in conjunction with Article 17 thereof, must be interpreted as not precluding, in principle, the executing judicial authority from holding the requested person in custody, in accordance with the law of the executing Member State, after the time-limits stipulated in Article 17 of the Framework Decision...

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1 cases
  • Bartholomew Pinder v The Queen
    • Bahamas
    • Court of Appeal (Bahamas)
    • 11 Febrero 2021
    ...bail even in murder and treason cases”. 24 The point was also recently made by the High Court of Ireland in Minister of Justice v T.M. [2018] IEHC 320 where at paragraph 27 Donnelly J accepted that “the power of the Central Criminal Court to grant bail is an inherent power of that court ari......

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