The Minister for Justice & Equality v Downey

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMR JUSTICE MICHAEL PEART
Judgment Date03 July 2019
Neutral Citation[2019] IECA 182
Date03 July 2019
Docket NumberNeutral Citation Number: [2019] IECA 182

[2019] IECA 182

THE COURT OF APPEAL

Peart J.

Birmingham P.

Peart J.

Edwards J.

Neutral Citation Number: [2019] IECA 182

APPEAL NUMBER: 2019/126

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003 (AS AMENDED)

BETWEEN:
THE MINISTER FOR JUSTICE AND EQUALITY
APPLICANT/RESPONDENT
- AND -
JOHN ANTHONY DOWNEY
RESPONDENT/APPELLANT

European arrest warrant – Abuse of process – Point of exceptional public importance – Respondent seeking the surrender of the appellant on foot of a European arrest warrant – Whether the appellant’s surrender is an abuse of process

Facts: The High Court (Donnelly J), on the 1st March 2019, made an order under s. 16 (1) of the European Arrest Warrant Act 2003 for the surrender of the appellant to the authorities in Northern Ireland on foot of a European arrest warrant dated 31st October 2018, the Court being satisfied that all the relevant statutory requirements were fulfilled, that there was no reason why his surrender should be refused under ss. 21A, 22, 23 or 24 of the Act, and that his surrender was not prohibited by any provision within Part 3 of the Act. Following the hearing of an application for leave to appeal against the said order, the trial judge made a further order dated 8th March 2019 pursuant to s. 16 (11) of the Act certifying that the following question arising from the Court’s decision involved a point of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Court of Appeal. The certified point of law was stated in the following terms: “Where surrender of a person is sought in respect of alleged offences concerning violence of the utmost gravity, is it an abuse of process of the High Court to surrender that person in circumstances where an assurance was given by the authorities in the issuing state which led to the person to act to his detriment which facilitated the gathering of evidence when it has not been established in evidence that the assurance or the continued existence of the assurance was deliberately or intentionally given or maintained for the purpose of misleading the requested person to act to his detriment?”

Held by Peart J that it is clear from Minister for Justice and Equality v J.A.T. (No. 2) [2016] IESC 17 that there can be circumstances which justify the High Court refusing an application for surrender on the basis of abuse of process, and that it is equally clear firstly that such cases require some exceptional circumstance to justify such refusal, but, and critically, that the abuse asserted to exist must be of the processes of the High Court dealing with the application for surrender, and therefore must relate to the application for surrender itself, and not to the prosecution of the offences which the respondent will face if he/she is surrendered. Peart J held that the different question whether there might be an abuse of process were the respondent put on trial for the offences for which surrender is sought is not a matter for determination in this jurisdiction on an application for surrender. Absent any suggestion that there was no possibility of a fair hearing of any application to have his trial on the offences stayed, and there had been no such suggestion made by the appellant, it was in Peart J’s view clear that any such question of abuse of process would be a matter to be pursued by the appellant before the courts in the requesting jurisdiction. In that regard, Peart J noted that the appellant was successful before Sweeney J in having his prosecution in respect of the Hyde Park bombing offences stayed on the grounds of abuse of process; that itself was clear evidence that in so far as he wished to contend that his prosecution for the 1972 offences in Northern Ireland constituted an abuse of process for the reasons that he advanced arising from the existence of the letter of comfort given to him and his subsequent arrest at Gatwick Airport, this was a matter to be determined in the requesting jurisdiction, and not as part of the application for his surrender. In Peart J’s view therefore the trial judge was correct in her decision.

Peart J held that he would answer the certified question in the negative, and dismiss the appeal.

Appeal dismissed.

JUDGMENT OF MR JUSTICE MICHAEL PEART DELIVERED ON THE 3RD DAY OF JULY 2019:
1

On the 1st March 2019 the High Court (Donnelly J.) made an order under s. 16 (1) of the European Arrest Warrant Act, 2003, as amended (‘the Act’) for the surrender of the appellant to the authorities in Northern Ireland on foot of a European arrest warrant dated 31st October 2018 (‘the warrant’) the Court being satisfied that all the relevant statutory requirements were fulfilled, that there was no reason why his surrender should be refused under sections 21A, 22, 23 or 24 of the Act, and that his surrender was not prohibited by any provision within Part 3 of the Act. The trial judge delivered a written judgment in which she set out in considerable detail her reasons for being satisfied that an order for surrender should be made.

2

Following the hearing of an application for leave to appeal against the said order, the trial judge made a further order dated 8th March 2019 pursuant to s. 16 (11) of the Act certifying that the following question arising from the Court's decision involves a point of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to this Court. The certified point of law was stated in the following terms:

‘Where surrender of a person is sought in respect of alleged offences concerning violence of the utmost gravity, is it an abuse of process of the High Court to surrender that person in circumstances where an assurance was given by the authorities in the issuing state which led to the person to act to his detriment which facilitated the gathering of evidence when it has not been established in evidence that the assurance or the continued existence of the assurance was deliberately or intentionally given or maintained for the purpose of misleading the requested person to act to his detriment?’

3

I will refer to the certified point of law as being ‘the abuse of process point’.

4

To understand the context in which the appellant asserts that the seeking of his surrender under the warrant amounts to an abuse of process, it is necessary to set out some factual background.

5

The warrant seeks the appellant's surrender so that he can be prosecuted in Northern Ireland in respect of two alleged offences of murder, and a third alleged offence of aiding and abetting the causing of an explosion likely to endanger life. Those alleged offences relate to an incident which occurred on the 25th August 1972 within the territory of Northern Ireland which resulted in the deaths of two members of the Ulster Defence Regiment when a car bomb exploded, as well as non-life-threatening injuries to army personnel.

6

In her written judgment, the trial judge set out the following extract from the warrant which provides some background information:

‘An ammunition technical officer attended the scene and determined that the explosion was caused by a car bomb containing between 100lb – 200lb of an unknown explosive. In a statement he confirmed the bomb was ‘command wire initiated by 100m of single – strand copper wire, blue and brown plastic covered. Attached to the end of the wire was a battery pack consisting of 6 x 4.5v Ever Ready 126 batteries, and one Ever Ready 1 R 376 battery, wiere (sic)...

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5 cases
  • The Minister for Justice and Equality v Campbell
    • Ireland
    • High Court
    • 26 June 2020
    ...and the Court of Appeal have both pronounced on the decision in J.A.T. (No. 2). Peart J. in Minister for Justice and Equality v. Downey [2019] IECA 182 stated as follows: “It is clear from J.A.T (No. 2) that there can be circumstances which justify the High Court refusing an application for......
  • Minister for Justice and Equality v Zdenek Kaleja
    • Ireland
    • High Court
    • 17 January 2022
    ...private and family life rights. 24 The respondent referred the court to the case of The Minister for Justice & Equality v Downey [2019] IECA 182, wherein Peart J. made the following comments in relation to the court's abuse of process jurisdiction in an EAW context: “19. It is clear from J.......
  • Minister for Justice and Equality v Angel
    • Ireland
    • High Court
    • 15 December 2020
    ...Minister for Justice and Equality v. J.A.T. No. 2 [2016] IESC 17, [2016] 2 I.L.R.M. 262 and Minister for Justice and Equality v. Downey [2019] IECA 182. 31 Donnelly J. held:- (a) there is no bar to bringing a fresh application to the Court for surrender; (b) there can be circumstances which......
  • The Minister for Justice and Equality v Leopold
    • Ireland
    • High Court
    • 30 January 2020
    ...v. Bailey [2017] IEHC 482 also has relevance as does the decision of the Court of Appeal in Minister for Justice and Equality v. Downey [2019] IECA 182. 25 In relation to the position as to res judicata, I do not understand the respondent to press this issue with any seriousness. It is nece......
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