The Minister for Justice and Equality v Patryk Stefaniak
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 25 July 2012 |
| Neutral Citation | [2012] IEHC 321 |
| Court | High Court |
| Date | 25 July 2012 |
[2012] IEHC 321
THE HIGH COURT
AND
EUROPEAN ARREST WARRANT ACT 2003 S13
EUROPEAN ARREST WARRANT ACT 2003 S16
EUROPEAN ARREST WARRANT ACT 2003 S16(1)
EUROPEAN ARREST WARRANT ACT 2003 S13(4)
MISUSE OF DRUGS ACT 1977 S23
EUROPEAN ARREST WARRANT ACT 2003 S15
DPP v SHAW 1982 IR 1
CONSTITUTION ART 40.4.2
DPP v BUCK 2002 2 IR 268
DPP v O'BRIEN 2005 IR 206
Extradition - European Arrest Warrant - Polish national - Extradition sought to require respondent to serve outstanding prison sentence - Issue raised as to jurisdiction of Court to hear the matter - European Arrest Warrant Act 2003
Facts: The respondent had been sentenced to a term of two years' imprisonment in Poland. In 2011 a European Arrest Warrant was issued in respect of the respondent, and he was arrested in Cork in December of that year. On the matter coming before the Court in relation to an application under s 16 of the European Arrest Warrant Act 2003 ("2003 Act"), the respondent's counsel raised a preliminary issue on the jurisdiction of the Court to hear the matter.
Held by Edwards J, that courts had to ensure that applications for adjournments on the basis of a change in legal representation were genuine, and not made for "strategic reasons". One reason would be to ensure as much time as possible was spent in Irish prisons before extradition in order to maximise the amount of discount in the time served in the requesting country. In the instant case the Court considered the respondent had deliberately sought to change his representation for such reasons.
In respect of the preliminary issue, counsel for the respondent submitted the provisions of the 2003 Act had not been complied with in so far as the respondent had not been informed of his rights at the time of arrest, and as such the Court could not hear the matter. However, the respondent was advised of his rights shortly after and any period of alleged illegality in respect of his imprisonment was extremely brief. To follow counsel's argument to the logical conclusion, the respondent would have to be considered to have spent the entire time since arrest unlawfully detained. If this was the case, one would question why his various representatives had not raised the point before.
The respondent's application to adjourn the proceedings to consider a case cited by the applicant's counsel was doomed, as the case was extremely well known and applicable here. The respondent's application was therefore refused in respect of the adjournment, and the preliminary objection was dismissed. People (Director of Public Prosecutions) v Shaw [1982] IR 1 followed.
JUDGMENT of Mr. Justice Edwards delivered on the 25th day of July, 2012
The respondent is the subject of a European arrest warrant issued by the Republic of Poland on the 27th June, 2011, in order that he might be required to serve a two year aggregate sentence of imprisonment imposed upon him by the District Court in Poznan for the two offences particularised in the warrant. The warrant was endorsed for execution by the High Court in this jurisdiction in the normal way. The respondent was then arrested in Cork on the 5 th December, 2011, by Garda Darren Reid and on the following day was brought before the High Court, again in the normal way, pursuant to s.13 of the European Arrest Warrant Act 2003 (hereinafter referred to as "the Act of 2003"). At the s.13 hearing the respondent was represented by solicitor and counsel. The Court (Sheehan J.) heard evidence of arrest and identity from Garda Reid. Garda Reid was not cross examined and no point was raised as to the validity of the arrest. In the circumstances, the Court fixed a date for the purposes of s.16 of the Act of 2003 and, as bail was opposed, the respondent was remanded in custody pending the s. 16 hearing taking place. The matter was then adjourned from time to time until coming before the Court on yesterday's date, the 24th July, 2012, for the hearing of the s.16 application. At the commencement of the proceedings on yesterday's date counsel for the respondent raised a preliminary issue purportedly going to the jurisdiction of the Court to deal with the matter. The Court has determined the preliminary issue against the respondent and has indicated it would give its reasons in a written judgment on today's date.
Having ruled against the respondent on the preliminary issue, the Court then proceeded to deal with the substantive surrender application. At the end of that hearing, the Court was not disposed to uphold the substantive objections raised by the respondent and in the circumstances made an order pursuant to s. 16(1) of the Act of 2003 surrendering the respondent to the issuing state.
It is not ideal that the respondent should have been in custody from the 6 th December, 2011 until the 24 th July, 2012 awaiting a s.16 hearing. However, the respondent himself was mainly responsible for that delay in that he changed his solicitors at the end of February, 2012, at the point where the Court was about to fix a date for the hearing, and instructed his present solicitors, D'Arcy Horan. His new legal team sought time to familiarize themselves with the case, which was granted, and it was only relatively recently that it was indicated to the Court that they were ready to accept a date, and that the 24 th July, 2012 was fixed as the hearing date.
In the normal course of events the Court would attach little significance to this. A person is entitled to change their legal team if there is a crisis of confidence or for some other good reason. Regrettably, however, such a step can sometimes be strategic. It can be used to put off the evil day when a person has to face up to their situation, and deal with the fact that their surrender is being sought. One of the reasons why this sometimes happens is that a convicted person who is remanded in custody in Ireland awaiting a surrender hearing is entitled to claim credit in the issuing state for any time spent in prison in Ireland awaiting their surrender hearing. In many cases a prisoner remanded in custody in an Irish prison is subjected to a less harsh regime, and is accommodated more comfortably, than a person would be in the issuing state. It therefore arises from time to time that a convicted person facing surrender will seek to maximize the time he or she has to spend in an Irish prison awaiting a surrender hearing so that credit can be claimed for that time against the sentence that that person will have to serve in their home state when they are ultimately surrendered. The Court must therefore be vigilant to ensure that its process is not being abused, and that applications for adjournments based upon a change of legal team, or on some other basis, are bona fide and not made for strategic reasons.
The relevance of this is that the Court considers that there has been a strategic attempt by the respondent within the last week, to secure a postponement of the surrender hearing in this matter, which attempt was not ultimately proceeded with for unexplained reasons. When the case was called yesterday the Court was made aware that the respondent had recently attempted to change his legal team a second time in as much as he had caused a signed authority to be sent from Cloverhill prison, where he is being held in custody awaiting his surrender hearing, to a Mr. Coen, solicitor, requesting the said Mr. Coen to take over his case. This apparently happened last Friday. It appears that he subsequently changed his mind again (whether he did so of his own initiative, or following persuasion by D'Arcy Horan solicitors, is unclear) and the Court was told that on yesterday's date he had executed yet another signed authority withdrawing instructions from Mr. Coen and reinstating the instructions of D'Arcy Horan, Solicitors. At the end of the day there was in fact no application for an adjournment. However, Mr. Coen, had very properly attended court to appraise the court as to what had occurred and the Court is grateful to him for the courtesy that he has shown it. The Court is nonetheless concerned that there may have been an attempt by the respondent to abuse its process. Had the change of legal team for the second time been persisted with, the Court would have approached any consequential application for an adjournment with suspicion, and with a healthy degree of scepticism, and would have required to have been satisfied by means of cogent and credible evidence that such an application was being made for bona fide reasons and was not being made strategically. In that regard it should be stated that the Court enquired of Mr. Coen as to how the respondent had come by his name, and as to whether he was previously known to Mr. Coen. Mr. Coen indicated that he was not previously known to him and that he had no idea as to why the respondent had attempted to instruct him. No information was forthcoming from the respondent, either through his solicitor or counsel, as to why he had taken steps to change his legal team for the second time at the 11 th hour, and then reversed those steps. In the circumstances the Court directed that the case should proceed.
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