The Minister for Justice and Equality v Bartold
| Jurisdiction | Ireland |
| Judge | Birmingham P. |
| Judgment Date | 18 December 2018 |
| Neutral Citation | [2018] IECA 406 |
| Docket Number | [2018 No. 463] |
| Court | Court of Appeal (Ireland) |
| Date | 18 December 2018 |
[2018] IECA 406
[2018 No. 463]
THE COURT OF APPEAL
European arrest warrant – Surrender – Stay on order – Appellant seeking a stay on the order of the High Court – Whether the High Court Judge erred when it came to assessing the factual situation
Facts: The High Court (Donnelly J), on 9th November 2018, ordered the surrender of the appellant, Mr Bartold, pursuant to s. 16(1) of the European Arrest Warrant Act 2003. At the time of doing so, the High Court directed that the appellant be brought before the Court once more if it appeared to the Central Authority of the State that the appellant would not have been surrendered on the expiration of 25 days from the making of the order. The 25 days in question expired at midnight on 3rd December 2018. On the morning of 3rd December 2018 at Dublin Airport, Mr Bartold conducted himself in such a fashion as to render it impossible for him to be transferred to Poland on a scheduled flight. On the afternoon of 3rd December 2018, in a situation where the efficacy of the order providing for the transfer to Poland was due to expire, the State sought an extension period pursuant to s. 16(5) of the 2003 Act. In the course of the application, it became clear that if so authorised by the High Court, the proposal was that Mr Bartold would be transferred to Poland on board a military aircraft on Wednesday 12th December 2018. The order of the High Court, reflecting that, nominated 12th December 2018 as the date of surrender and made provision for a period of detention not exceeding ten days thereafter. On the morning of 10th December 2018, by arrangement, the case appeared for mention in the context of a List to Fix Dates that was being held in the Criminal Courts of Justice. The appellant was seeking a stay on the order of the High Court with a view to appealing the decision. The High Court had refused a stay. The appellant’s application was opposed by the State authorities. Birmingham P was taking that List to Fix Dates and put the matter back to 2pm to be mentioned again before a Court of three Judges. At 2pm, the Court heard arguments addressed to the substantive issue: was the Judge of the High Court correct or was she incorrect, and so, should the surrender of Mr Bartold be refused and his release ordered. It was contended that the High Court Judge erred when it came to assessing the factual situation and ought to have concluded that what occurred was foreseeable.
Held by the Court of Appeal (Birmingham P) that the Judge’s conclusions were ones that were clearly open to her.
Birmingham P held that the appeal would be dismissed.
Appeal dismissed.
On 9th November 2018, the High Court (Donnelly J.) ordered the surrender of the appellant pursuant to s.16(1) of the European Arrest Warrant Act 2003 (as amended). At the time of doing so, the High Court directed that the appellant be brought before the Court once more if it appeared to the Central Authority of the State that the appellant would not have been surrendered on the expiration of 25 days from the making of the order. The 25 days in question expired at midnight on 3rd December 2018.
This case relates to events that occurred on the morning of 3rd December 2018 at Dublin Airport, and to some extent, those that occurred earlier that morning at Cloverhill Prison. The appellant had been detained in custody following the order of 9th November 2018 providing for his surrender to the requesting State. While it will be necessary to consider what occurred at Dublin Airport and before the departure to the airport in greater detail, it suffices at this stage to say that at Dublin Airport, Mr. Bartold conducted himself in such a fashion as to render it impossible for him to be transferred to Poland on a scheduled flight.
On the afternoon of 3rd December 2018, in a situation where the efficacy of the order providing for the transfer to Poland was due to expire, the State sought an extension period pursuant to s. 16(5) of the Act. In the course of the application, it became clear that if so authorised by the High Court, the proposal was that Mr. Bartold would be transferred to Poland on board a military aircraft on Wednesday 12th December 2018. The order of the High Court, reflecting that, nominated 12th December 2018 as the date of surrender and made provision for a period of detention not exceeding ten days thereafter.
On the morning of 10th December 2018, by arrangement, the case appeared for mention in the context of a List to Fix Dates that was being held in the Criminal Courts of Justice. The appellant was seeking a stay on the order of the High Court with a view to appealing the decision. The High Court had refused a stay. The appellant's application was opposed by the State authorities, who indicated that they were opposing the application for a number of reasons. I was taking that List to Fix Dates and I indicated that as I was sitting alone, and because providing time for the hearing of a stay application would determine the issue as to the efficacy of a stay, I would put the matter back to 2pm to be mentioned again before a Court of three Judges. At 2.00pm, slightly to my surprise, though I must say very much to my satisfaction, the Court heard arguments addressed to the substantive issue: was the Judge of the High Court correct or was she incorrect, and so, should the surrender of Mr. Bartold be refused and his release ordered. The appellant provided the Court with written submissions which the Court had the opportunity to consider over lunch and both sides addressed substantial arguments to the Court. For my part, and I know I speak for my colleagues in that regard, I am very appreciative of the diligence and industry of counsel in that regard.
So far as the merits of the appeal are concerned, it is necessary to consider in more detail what occurred in the High Court on 3rd December 2018, which, in turn, requires a consideration of what occurred at Dublin Airport and Cloverhill Prison earlier that day.
In the course of that afternoon/evening session, the High Court adjourned and sat again at 6.30pm in order to convenience counsel for the appellant, the Court heard from three witnesses: Detective Garda Eoin Kane, Thomas Hogg, an Officer of the Prison Service, and the applicant/appellant, Michael Lech Bartold. In summary, the evidence of Detective Garda Kane was that he was assigned the task of collecting Mr. Bartold from Cloverhill Prison and bringing him to Dublin Airport with a view to having him placed on a flight to Poland. The Detective Garda explained that he arrived at the prison, and after certain delay, met with the prisoner who requested to be allowed to have a cigarette, which was facilitated. Then, they went to Dublin Airport where they met Polish escorts. At that stage, he records Mr. Berthold saying, “I am not flying, I have a medical condition, I can't fly”. Detective Garda Kane's evidence was that he recalled that at that stage, he had seen an email in relation to fitness to fly. He accessed the email on his mobile phone which he summarised and interpreted as “fit to fly” and he said to Mr. Bartold that a doctor had certified him as fit to fly. According to Detective Garda Kane, Mr. Bartold denied having seen a doctor. He was shown an email from the doctor and accepted that he had seen one, but said that he had not taken medication. The Detective Garda made contact with the prison and staff there, informed Gardaí of the procedures normally followed when prisoners were leaving the place of detention, but accepted that it appeared that the appellant had not sought or received his medication that morning. At the Boarding Gate, Mr. Bartold, according to Detective Garda Kane, became verbally abusive, began shouting and caused a scene. At the request of ground staff, Detective...
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