The Minister for Justice & Equality v Vilkas

JurisdictionIreland
JudgeMr. Justice Edwards
Judgment Date15 February 2018
Neutral Citation[2018] IECA 33
Date15 February 2018
CourtCourt of Appeal (Ireland)
Docket NumberNeutral Citation Number: [2018] IECA 33 CA Record Nos.: 2015/0445 & 2015/0451 High Court Record Nos.: 2014/81 EXT & 2014/115 EXT

[2018] IECA 33

THE COURT OF APPEAL

Edwards J.

Ryan P.

Mahon J.

Edwards J.

Neutral Citation Number: [2018] IECA 33

CA Record Nos.: 2015/0445 & 2015/0451

High Court Record Nos.: 2014/81 EXT & 2014/115 EXT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003, AS AMENDED, SECTION 16(5)(a)

THE MINISTER FOR JUSTICE & EQUALITY
Appellant
V
TOMAS VILKAS
Respondent

European arrest warrant – Surrender – Jurisdiction – Appellant seeking the surrender and remand of the respondent – Whether the High Court had jurisdiction to make the orders sought by the appellant

Facts: The appellant, the Minister for Justice and Equality, on the 14th of August 2015, applied to the High Court for orders pursuant to s. 16(5)(a) of the European Arrest Warrant Act 2003 fixing the 15th of September 2015 as a date for the surrender of the respondent, Mr Vilkas, and for the further remand of the respondent, pending his surrender, for a period not exceeding 10 days after the date proposed to be fixed. The High Court (Keane J) refused the relief sought, reasoning in an ex tempore ruling that it was not satisfied that on a proper construction of s. 16 of the 2003 Act it had jurisdiction to make the orders being sought. The ex tempore ruling of Keane J was reflected in two perfected orders dated the 14th of August 2015, which were in identical terms. The appellant appealed to the Court of Appeal against those orders. The grounds of appeal were identical in each case and were pleaded in the following terms: the trial judge erred in determining that the High Court did not have jurisdiction to hear an application pursuant to s. 16 (5)(a), due to the fact that: a) the respondent was properly brought before the High Court pursuant to s. 16 (4)(c)(ii); b) the appellant was entitled to make an application pursuant to s. 16(5)(a) as the High Court (and the Court of Appeal) has jurisdiction to make such an order notwithstanding the existence of a previous order made pursuant to the same provision; c) s. 16 (3A) sets the "time for surrender" at ten days subject to an extension being granted under s. 16 (5) or an appeal being lodged or a complaint being made within the meaning of subsection (6); and d) the reference to the "the expiration of the time for surrender under subsection (3A)" as provided for in s. 16 (4)(c)(i) is properly interpreted as the expiration of ten-days or such longer period as has been permitted pursuant to an order granted under s. 16(5) or which may be required by reason of the lodgement of an appeal or the making of a complaint as contemplated by subsection (6).

Held by Edwards J that the provisions of the 2003 Act in controversy in this case must be given a conforming interpretation with respect to Article 23 of the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, providing that it is possible to do that in a manner that is not contra legem. Edwards J was satisfied that it is entirely possible to do so, and that this is achieved by means of affording them the interpretation contended for by the appellant.

Edwards J held that the appeal should be allowed.

Appeal allowed.

Judgment delivered on the 15th day of February, 2018 by Mr. Justice Edwards
Introduction
1

These appeals are concerned with a net point of statutory interpretation in respect of s. 16(5)(a) of the European Arrest Warrant Act 2003, as amended (hereinafter the Act of 2003).

2

In the first instance it may be helpful to set out in full the terms of s.16 of the Act of 2003, so that sub-subsection (5)(a) thereof may be viewed and appreciated in its proper context.

3

Section 16 of the Act of 2003 provides:

'16.—(1) Where a person does not consent to his or her surrender to the issuing state the High Court may, upon such date as is fixed under section 13 or such later date as it considers appropriate, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her, provided that—

(a) the High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued,

(b) the European arrest warrant, or a true copy thereof, has been endorsed

in accordance with section 13 for execution of the warrant,

(c) the European arrest warrant states, where appropriate, the matters required by section 45 (inserted by section 23 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012),

(d) the High Court is not required, under section 21A, 22, 23 or 24 (inserted by sections 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the person under this Act, and

(e) the surrender of the person is not prohibited by Part 3.

(2) Where a person does not consent to his or her surrender to the issuing state, the High Court may, upon such date as is fixed under section 14 or such later date as it considers appropriate, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her, provided that—

(a) the European arrest warrant, including, where appropriate, the matters required by section 45 (inserted by section 23 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012), is provided to the court,

(b) the High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued,

(c) the High Court is not required, under section 21A, 22, 23 or 24 (inserted by

sections 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the person under this Act, and

(d) the surrender of the person is not prohibited by Part 3.

(2A) Where the High Court does not—

(a) make an order under subsection (1) on the date fixed under section 13, or

(b) make an order under subsection (2) on the date fixed under section 14,

it may remand the person before it in custody or on bail and, for those purposes, 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.

(3) An order under subsection ( 1) or (2) shall, subject to section 18, take effect upon the expiration of 15 days beginning on the date of the making of the order or such earlier date as the High Court, on the application of the Central Authority in the State and with the consent of the person to whom the order applies, directs.

(3A) Subject to subsections (5) and (6), a person to whom an order for the time being in force under subsection ( 1) or (2) applies shall be surrendered to the issuing state concerned not later than 10 days after the order takes effect in accordance with subsection (3).

(4) Where the High Court makes an order under subsection ( 1) or (2), it shall, unless it orders postponement of surrender under section 18—

(a) inform the person to whom the order relates of his or her right to make a complaint under Article 40.4.2****of the Constitution at any time before his or her surrender to the issuing state,

(b) order that that person be detained in a prison (or, if the person is not more than 21 years of age, in a remand institution) for a period not exceeding 25 days pending the carrying out of the terms of the order, and

(c) direct that the person be again brought before the High Court—

(i) if he or she is not surrendered before the expiration of the time for surrender under subsection (3A), as soon as practicable after that expiration, or

(ii) if it appears to the Central Authority in the State that, because of circumstances beyond the control of the State or the issuing state concerned, that person will not be surrendered on the expiration referred to in subparagraph (i), before that expiration.

(5) Where a person is brought before the High Court pursuant to subsection (4)(c), the High Court shall—

(a) if satisfied that, because of circumstances beyond the control of the State or the issuing state concerned, the person was not surrendered within the time for surrender under subsection (3A) or, as the case may be, will not be so surrendered—

(i) with the agreement of the issuing judicial authority, fix a new date for the surrender of the person, and

(ii) order that the person be detained in a prison (or, if the person is not more than 21 years of age, in a remand institution) for a period not exceeding 10 days after the date fixed under subparagraph (i), pending the surrender,

and

(b) in any other case, order that the person be discharged.

(5A) A person to whom an order for the time being in force under subsection (5)(a) applies—

(a) shall be surrendered to the issuing state concerned not later than 10 days after the order takes effect, or

(b) if surrender under paragraph (a) has not been effected, shall be discharged.

(5B) Where a person is ordered, under subsection (4)(b), to be detained in a prison (or, if the person is not more than 21 years of age, in a remand institution) and is brought before the High Court pursuant to subsection (4)(c), the person shall be deemed to be in lawful custody at all times beginning at the time of the making of the order under subsection (4)(b) and ending when he or she is brought before the Court.

(6) Where a person—

(a) lodges an appeal pursuant to subsection (11), or

(b) makes a complaint under Article 40.4.2of the Constitution,

he or she shall not be surrendered to the issuing state while proceedings relating to the appeal or complaint are pending.

(7) Where the High Court decides not to make an order under subsection ( 1) or (2)

(a) it shall give reasons for its decision, and

(b) the person shall, subject to subsection (8), be released from custody.

(8) Subsection (7)(b) shall not apply if—

...

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2 cases
  • The Minister for Justice & Equality v Skiba
    • Ireland
    • Supreme Court
    • December 5, 2018
    ...again subsequent to the hearing of this appeal, the Court of Appeal delivered judgment in Minister for Justice and Equality v. Vilkas [2018] IECA 33, the case having been referred back to that Court following the judgment of the CJEU. Mr. Vilkas was subsequently granted leave to appeal tha......
  • DPP v P. McC
    • Ireland
    • Court of Appeal (Ireland)
    • October 3, 2018
    ...although the issue has not be definitively determined to date . See the discussion in that regard in Minister for Justice and Equality v Vilkas [2018] IECA 33 at paras 91 to 93 of the 95 We do not consider that it is necessary for us to resolve this controversy in circumstances where, even......

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