The Minister for Justice v McArdle

• Jurisdiction: Ireland
• Judge: Mr Justice John Edwards
• Judgment Date: 27 June 2019
• Neutral Citation: [2019] IECA 174
• Date: 27 June 2019
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2019] IECA 174 Appeal No: 2019/236 High Court Record No: 2019/25 EXT

[2019] IECA 174

THE COURT OF APPEAL

(CIVIL)

Edwards J.

Birmingham P.

Edwards J.

Whelan J.

Neutral Citation Number: [2019] IECA 174

Appeal No: 2019/236

High Court Record No: 2019/25 EXT

IN THE MATTER OF AN APPEAL FROM A REFUSAL OF AN APPLICATION FOR BAIL

BETWEEN/

THE MINISTER FOR JUSTICE

Respondent

And

BARRY McARDLE

Appellant

Bail – European arrest warrant – Cassation review – Appellant seeking bail – Whether there was an error of principle in the High Court judge’s approach to the bail application

Facts: The appellant, Mr McArdle, was the subject of a European arrest warrant issued by the kingdom of the Netherlands in respect of two offences (voluntary manslaughter and concealing a body from criminal investigation). The appellant was initially tried for those offences before the District Court of Amsterdam in circumstances where he had been surrendered to the Dutch authorities by the Irish courts on foot of an earlier European arrest warrant. The European arrest warrant had been issued for the purposes of securing the appellant’s attendance before the Dutch Supreme Court for the purposes of his cassation review. The warrant in question was endorsed by the Irish High Court on the 17th January 2019, and the appellant was arrested on foot of it on the 3rd May 2019. He intended to contest his surrender at a section 16 hearing which was pending before the High Court. The appellant was remanded in custody following his arrest and he sought bail. The High Court declined his application. He appealed to the Court of Appeal against that ruling.

Held by Edwards J that he found no error of principle in the High Court judge’s approach to the bail application. He noted that the appellant was not entitled to the benefit of any presumption in favour of bail and held that the sentencing judge was required to conduct a risk assessment, that he manifestly did so, and that his conclusion was not unreasonable in the light of the evidence he had received; he had heard comprehensive evidence concerning the circumstances of the case and concluded in substance, following an appraisal of that evidence, that there was a real and substantial risk that the appellant would not turn up for his surrender hearing, and that the risk perceived by him existed at a level sufficient to warrant a denial of bail. Edwards J held that this was a view that was open to the sentencing judge on the evidence, and accordingly the decision that he came to was a legitimate one within the range of his discretion.

Edwards J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Mr Justice John Edwards delivered on the 27th June 2019.

Introduction

1 In this case we have been told that the appellant is the subject of a European arrest warrant issued by the kingdom of the Netherlands in respect of two offences (voluntary manslaughter and concealing a body from criminal investigation). The appellant was initially tried for these offences before the District Court of Amsterdam in circumstances where he had been surrendered to the Dutch authorities by the Irish courts on foot of an earlier European arrest warrant.

2 The appellant had sought to resist surrender on foot of this earlier warrant, as was his entitlement. The litigation in connection with that previous European arrest warrant was lengthy and protracted, going all the way to the Supreme Court. Ultimately, the Supreme Court rejected his appeal and an order of the High Court made on the 28th of March 2014 surrendering him to the Netherlands was upheld. However, before the Supreme Court appeal was heard a lengthy domestic sentence that the appellant was already serving expired. Notwithstanding that he had been granted bail on the EAW matter pending the hearing of his Supreme Court appeal, he apparently decided at that point that he would, after all, surrender voluntarily to the Netherlands and seemingly did so. It was suggested in the High Court in the present bail proceedings, by counsel who was then acting for the appellant, that the appellant also dropped his appeal to the Supreme Court at this time. However, that does not appear to be correct. The Supreme Court heard the appeal and gave judgment on 25th of June 2015 – see Minister for Justice and Equality v McArdle and Minister for Justice and Equality v Brunell [2015] IESC 56. The judgment makes no mention of the appeal having been abandoned by Mr McArdle and, indeed, the first paragraph of it expressly records that the appellant was represented by both senior and junior counsel at the appeal hearing. I think it likely, however, that the reason the appeal proceeded notwithstanding the appellant's late voluntary surrender was because his co-accused, Mr Brunell, was still resisting surrender and the common point that had been raised on behalf of both appellants and certified by the High Court as being one of exceptional public importance, remained live and was by no means moot in those circumstances.

3 In any event, upon his return to the Netherlands the appellant was held on remand for a period of nine months, following which he was then released on bail by the Dutch courts pending the commencement of his trial which was still not ready to proceed. During the time he was on bail awaiting trial he was allowed to travel home to Dublin with a requirement that he sign on at the Dutch Embassy in Dublin on a weekly basis. He complied fully with his bail conditions and once his trial was listed he returned to Amsterdam for that trial, as required. After the evidence was heard, and pending the verdict which was reserved, he was permitted to return to Dublin on the same terms as previously, and he again complied with his bail and returned in due course to Amsterdam to receive the verdict.

4 He was acquitted of the manslaughter offence but convicted of the second offence of concealing a body from criminal investigation, for which he received a two-year term of imprisonment. As he had effectively served all of that sentence while on remand at various times in the Netherlands he was immediately released and he returned to Ireland. However, as is possible under Dutch law, the prosecutor appealed the acquittal verdict, as well as the sentence imposed for the matter in respect of which there was a conviction, to the Amsterdam Court of Appeal. The appellant did not attend the appeal hearing in person although he was represented by a lawyer. The Amsterdam Court of Appeal overturned the acquittal at first instance and recorded a conviction against the appellant. It further sentenced him to an overall term of 13 years” imprisonment in a judgement delivered on 17 May 2018. We have not been told how that was structured and/or apportioned as between the two offences for which he faced sentencing, but it is unnecessary to know that for the purposes of a bail application, which this is. The Amsterdam Court of Appeal's decision has in turn now been appealed to the Dutch Supreme Court for the purposes of a cassation review.

5 Cassation procedures are common in civil law systems. The court of cassation is usually a high level appellate court and typically it does not re-examine the facts of the case but rather only re-examines the case from the point of view of how the law was applied and interpreted. That this is so in the instant case is apparent from the additional information furnished to the High Court by the Dutch authorities in a letter dated 10/12/18 in which the Dutch authorities stated ‘the Supreme Court monitors whether the lower court satisfied the requirements of due process and to secure uniform application of material and procedural law’.

6 The present European arrest warrant has been issued for the purposes of securing the appellant's attendance before the Dutch Supreme Court for the purposes of his cassation review.

7 The warrant in question was endorsed by the Irish High Court on the 17th of January 2019, and the appellant was arrested on foot of it on a date on the 3rd of May 2019. He intends to contest his surrender at a section 16 hearing which is currently pending before the High Court. The appellant was remanded in custody following his arrest and he now seeks bail. He does so in circumstances where he is a convicted person, albeit that he has a cassation appeal pending which could possibly result in his conviction being overturned....