The Minister for Justice & Equality v N.M.

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 25 June 2013
• Neutral Citation: [2013] IEHC 322
• Court: High Court
• Docket Number: Record No.: 2012 234 Ext.
• Date: 25 June 2013

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003

Between/

THE MINISTER FOR JUSTICE & EQUALITY

Applicant

AND

N. M.

Respondent

[2013] IEHC 322

Record No.: 2012 234 Ext.

THE HIGH COURT

Criminal law - European arrest warrant - Surrender - UK - Robbery and attempted robbery - Family life - Fundamental rights - Disproportionate - Whether respondent could be surrendered

Facts: The respondent was the subject of a European arrest warrant issued by the United Kingdom. She objected to her surrender to the UK for offences described as robbery and attempted robbery. She objected to her surrender as being prohibited by s. 37 of the European arrest warrant Act 2003, as amended and alleged that her surrender would be disproportionate in that it would breach her right to respondent for private and family life pursuant to Article 8 ECHR. She was the mother and sole carer of three children and had a serious medical condition.

Held by Edwards J. that the evidence had not established that the private interests of the respondent and her children outweighed the public interest in her extradition. The specific crimes were premeditated and opportunistic and a lethal weapon had been employed in each case pursuant to a joint enterprise. The proposed surrender was not a disproportionate measure and would not disrespect the rights of the respondent and her children in breach of Article 8 ECHR. The Court was not disposed to uphold the s. 37 objection. A staying order or postponed surrender on humanitarian grounds for a reasonable period to enable alternative care arrangements to be put in place would be ordered.

Mr Justice Edwards

JUDGMENT of Mr Justice Edwards delivered on the 25th day of June 2013

1 Introduction:

2 1.The respondent is the subject of a European arrest warrant issued by the United Kingdom on the 29th of June, 2012. The warrant was endorsed by the High Court for execution in this jurisdiction on the 22nd of August, 2012, and it was duly executed on the 4th of December, 2012. The respondent was arrested by Detective Garda J.H. on that date, following which she was brought before the High Court on the same day pursuant to s. 13 of the European Arrest Warrant Act 2003 (hereinafter “the Act of 2003”). In the course of the s. 13 hearing a notional date was fixed for the purposes of s. 16 of the Act of 2003 and the respondent was remanded on bail to the date fixed. Thereafter the matter was adjourned from time to time, ultimately coming before the Court for the purposes of a surrender hearing.

3 2.The respondent does not consent to her surrender to the United Kingdom. Accordingly, this Court is now being 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 her. The Court must consider whether the requirements of s. 16 of the Act of 2003, both controversial and uncontroversial, have been satisfied and this Court’s jurisdiction to make an order directing that the respondent be surrendered is dependant upon a judicial finding that they have been so satisfied.

4 Uncontroversial s. 16 issues

5 3.The Court has received an affidavit of Detective Garda J.H. sworn on the 4th of March, 2013 testifying as to his arrest of the respondent and as to the questions he asked of the respondent to establish the respondent’s identity. In addition, counsel for the respondent has confirmed that no issue arises as to either the arrest or identity.

6 4.The Court has also received and has scrutinised a true copy of the European arrest warrant in this case. Further, the Court has taken the opportunity to inspect the original European arrest warrant which is on the Court’s file and which bears this Court’s endorsement.

7 5.I am satisfied following my consideration of these matters that:

(a)The European arrest warrant was endorsed for execution in this State in accordance with s. 13 of the 2003 Act;

(b)The warrant was duly executed;

(c)The person who has been brought before the Court is the person in respect of whom the European arrest warrant was issued;

(d)The warrant is in the correct form;

(e)The warrant purports to be a prosecution type warrant and the respondent is wanted in the United Kingdom for trial in respect of the two offences particularised in Part E of the warrant which is characterised as “robbery” and “attempted robbery”.

(f)The underlying domestic decision on which the warrant is based is an Arrest Warrant issued on the 28th of November, 1994 by the “Bristol Crown Court in respect of offences of Robbery on the 7th September 1994 and Attempted Robbery on the 16th September 1994”.

(g)The issuing judicial authority has invoked paragraph 2 of article 2 of Council Framework Decision 02/584/J.H.A. on the European arrest warrant and the surrender procedures between Member States, O.J. L190/1 18.7.2002 (hereinafter referred to as “the Framework Decision”) in respect of both offences listed in Part E, by the ticking of the box in Part E.I of the warrant relating to “organised or armed robbery”. Accordingly, subject to the Court being satisfied that the invocation of paragraph 2 of article 2 is valid ( i.e. that the minimum gravity threshold is met, and that there is no basis for believing that there has been some gross or manifest error), it need not concern itself with correspondence;

(h)The minimum gravity threshold in a case in which paragraph 2 of article 2 of the Framework Decision is relied upon is that which now finds transposition into Irish domestic law within s. 38(1)(b) of the Act of 2003, as amended, namely that under the law of the issuing state the offence is punishable by imprisonment for a maximum period of not less than three years. It is clear from Part C (1) of the warrant, read in conjunction with the information concerning the nature and legal classification of the offences set out within Part E that both offences carry a potential penalty of life imprisonment. Accordingly, the minimum gravity threshold is comfortably met;

(i)The description of the circumstances in which the offences in question were committed as set out in the warrant is as follows:

“ Robbery on 7th September 1994

On the 7th September 1994 David March was working alone as a Cashier at Emborough Filling Station Near Chilcompton Somerset England, when two persons wearing motor cycle helmets and leather jackets entered the service station shop.

After enquiring about a bottle of gear oil, Ashman produced a lock knife type weapon and held it against Mr March's side. He then demanded that the till be opened and for Mr March to place all the Notes from the till and some coinage into a pouch which Ashman was wearing around his waist.

Mr March was then told to go through to the rear store room and ordered to empty a spare till float which Ashman appeared to know existed. Having done that he was ordered to lie down on the floor and not to give the alarm whilst Ashman and his accomplice made good their escape.

About £300 in cash was stolen.

The second person and accomplice was N. M. who remained in the shop. She was the person who went to pick up the gear oil which Ashman had asked about initially. She could see the knife being produced and the notes and coins being put by the Cashier into the pouch around Ashman’s waist.

Attempted Robbery on the 16th September 1994

At about 1130am on this date, Mr John Caines was working at the Markham Filling Station, Martcombe Road Easton in Gordano Near Bristol England. The Filling Station was not self service and Mr Caines was going about his business serving any customers who called in for fuel as and when. Around the stated time a black motor cycle displaying Index Number LBN 26P with a driver and a pillion passenger pulled onto the Filling Station forecourt.

The driver (Ashman) said 'Fill it up' and Mr Caines put £3.40p worth of fuel into the petrol tank.

Mr Caines then moved a short distance to his small forecourt office expecting the driver to pay for the fuel. When he looked back towards the driver, who was only some 4 to 5 feet away from him, he could see that the driver was pointing a lock knife towards him. Ashman said 'Don't shout or do anything'. He then walked towards Mr Caines, who being fearful as to what was going to happen, ran from the forecourt office towards the Filling Station shop, knocking over a bin in his haste to do so. Ashman ran after him initially but after Mr Caines shouted to his wife (who was working within the Filling Station shop) to telephone the Police, he and M. made off on the motor cycle empty handed.

Having received information about the motor cycle from Mrs Caines, the Police were keeping observations for the vehicle and saw it shortly after travelling Southbound on the M5 Motorway. The officers saw the motor cycle exit the Motorway at Junction 20 and followed it. Ashman, the driver, saw the Police and increased his speed and a pursuit began. Another Police vehicle joined the pursuit and got in front of the motor cycle. Between the two police vehicles they managed to stop the motor cycle near to the village of Kenn in Somerset England.

Ashman was the driver and M. was the passenger. A lock knife and a pillow case was found on Ashman. M. also had a lock knife and a map. The motor cycle was being driven on false plates and the correct Index Number Plates were found within the motor cycle after a search. In interview Ashman admitted involvement in the incident at Markham Filling Station earlier and said that the motor cycle had false plates because he had intended to' rob a garage'. M. also admitted involvement in the offence saying she knew what was going on and was 'short of money'.

Both denied involvement in the Robbery on the 7th September...