The Minister for Justice and Equality v Liam Campbell

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards,Kennedy J,Binchy J
• Judgment Date: 28 July 2021
• Neutral Citation: [2021] IECA 219
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No: 2020/144

The Minister for Justice and Equality

Respondent

and

Liam Campbell

Appellant

[2021] IECA 219

Edwards J.

Kennedy J.

Binchy J.

Court of Appeal Record No: 2020/144

High Court Record No 2016/203EXT

THE COURT OF APPEAL

European arrest warrant – Surrender – Abuse of process – Respondent seeking the surrender of the appellant to Lithuania – Whether s. 21A of the European Arrest Warrant Act 2003 is amenable to a conforming interpretation with the Framework Decision so that an intention to put a respondent on trial is coterminous with a decision to put the respondent on trial for the purposes of s. 21A

Facts: The appellant, Mr Campbell, appealed to the Court of Appeal against the judgment of Donnelly J of the 20th of June, 2020, and her subsequent order perfected on the 13th of July, 2020, directing pursuant to s. 16(1) of the European Arrest Warrant Act 2003, as amended, that the appellant should be surrendered to such person as is duly authorised to receive him on behalf of the Republic of Lithuania to face trial in respect of three offences the subject matter of a European arrest warrant issued by a judicial authority in Lithuania and dated the 26th of August, 2013 (the EAW), on foot of which the appellant’s rendition was sought. The appeal involved a net issue, the High Court having certified, for the purposes of s. 16(11) of the 2003 Act, that its decision involved points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be made to an appropriate appellate court. The points certified were: (1) Is s. 21A (of the 2003 Act) amenable to a conforming interpretation with the Framework Decision so that an intention to put a respondent on trial is coterminous with a decision to put the respondent on trial for the purposes of s. 21A? (2) Is it necessary to demonstrate exceptional circumstances before the court would make a finding of abuse of process? (3) Is there a necessity to demonstrate mala fides before the court will make a finding of abuse of process? (4) Does a finding of abuse of process require the court to refuse surrender? The appellant confined his appeal to the Court of Appeal to the first of the certified points.

Held by Edwards J that, in circumstances where he regarded the Court as being bound by the approach to s. 21A commended by the Supreme Court in Minister for Justice, Equality and Law Reform v Olsson [2011] 1 I.R. 386, he had no hesitation in endorsing the analysis and decision of the trial judge. It seemed to Edwards J that the trial judge’s approach was rigorous and impeccable. Edwards J held that this was a case that turned on the facts as established in the evidence adduced before the High Court. Edwards J held that the decisions in Minister for Justice, Equality and Law Reform v Bailey [2012] 4 I.R. 1 and in Minister for Justice and Equality v Jocienė [2013] IEHC 290 were fact-specific and were of limited assistance in a case such as this with different facts. Edwards J therefore agreed with the observations in paragraphs 56 and 59 of the High Court’s judgment.

Edwards J held that he found no error on the part of the High Court judge, and would dismiss the appeal.

Appeal dismissed.

JUDGMENT delivered by Mr Justice Edwards on the 28th of July, 2021.

Introduction

1 This is an appeal against the judgment of Donnelly J. of the 20th of June, 2020, and her subsequent order perfected on the 13th of July, 2020, directing pursuant to s. 16(1) of the European Arrest Warrant Act, 2003, as amended, that the appellant should be surrendered to such person as is duly authorised to receive him on behalf of the Republic of Lithuania to face trial in respect of three offences the subject matter of a European arrest warrant issued by a judicial authority in Lithuania and dated the 26th of August, 2013, (“the EAW”) on foot of which the appellant's rendition was sought.

2 The appeal involves a net issue, the High Court having certified, for the purposes of s. 16(11) of the Act of 2003, that its decision involved points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be made to an appropriate appellate court. The points certified were:

• 1) Is section 21A (of the Act of 2003) amenable to a conforming interpretation with the Framework Decision so that an intention to put a respondent on trial is coterminous with a decision to put the respondent on trial for the purposes of section 21A?

• 2) Is it necessary to demonstrate exceptional circumstances before the court would make a finding of abuse of process?

• 3) Is there a necessity to demonstrate mala fides before the court will make a finding of abuse of process?

• 4) Does a finding of abuse of process require the court to refuse surrender?

3 The appellant has now appealed to this Court but confines his appeal to the first of the certified points.

Background to the appeal

4 The EAW in this case sought the rendition of the appellant to face trial in Lithuania in relation to three offences, namely:

• i. preparation for a crime under Article 21(1) and Article 199(2) of the Criminal Code of Lithuania (“the Lithuanian Criminal Code”) which has a maximum potential sentence of imprisonment/detention for up to ten years;

• ii. terrorism under Article 250(6) of the Lithuanian Criminal Code which has a maximum potential sentence of imprisonment/detention for up to twenty years; and,

• iii. illegal possession of firearms under Article 253(2) of the Lithuanian Criminal Code which has a maximum potential sentence of imprisonment/detention for up to eight years.

5 The facts alleged are succinctly summarised in paragraph 2 of Donnelly J.'s judgment of the 26th of June 2020:

“Further details of the three offences are described in part (e) of the European Arrest Warrant. The respondent is alleged to have made arrangements, while acting in an organised terrorist group, the Real Irish Republican Army (“RIRA”), to acquire a substantial number of firearms and explosives from Lithuania and smuggle it into Ireland. The EAW states that during the period from the end of 2006 to 2007, the respondent made arrangements with Seamus McGreevy, Michael Campbell (his brother), Brendan McGuigan and other unidentified persons (“named persons”) to travel to Lithuania for the purposes of acquiring firearms and explosives, including, automatic rifles, sniper guns, projectors, detonators, timers, trotyl, and to return them to Ireland, without specific permission from the Lithuanian authorities and without declaring them to the Irish customs. In the middle of 2007, the respondent organised conspiracy meetings concerning the logistics of how to acquire the firearms and explosives and provided money for the purchase of the weapons to the named persons and instructed them to go to Lithuania to test the weapons, purchase them, arrange training of how to use the weapons with the weapons dealer, and return them to Ireland without the detection of custom. In this way, the EAW states that the respondent, together with the named persons, provided support to the terrorist group.”

6 Numerous grounds of objection to the appellant's surrender were argued and relied upon before the High Court. However, in this appeal the sole issue in controversy is the High Court's rejection of the appellant's objection to his surrender based upon s. 21A of the Act of 2003. In substance, the appellant maintained before the High Court, and continues to maintain, that he is wanted by the requesting state in connection with its investigation into alleged crimes and that there has not been a decision in his case to charge and try him with the offences the subject matter of the EAW. He says that in those circumstances the High Court ought to have refused to surrender him in reliance on s. 21A of the Act of 2003, and that it was in error in ordering his surrender.

The relevant statutory provision

7 S. 21A of the Act of 2003, provides:

• “(1) Where a European arrest warrant is issued in the issuing state in respect of a person who has not been convicted of an offence specified therein, the High Court shall refuse to surrender the person if it is satisfied that a decision has not been made to charge the person with, and try him or her for, that offence in the issuing state.

• (2) Where a European arrest warrant is issued in respect of a person who has not been convicted of an offence specified therein, it shall be presumed that a decision has been made to charge the person with, and try him or her for, that offence in the issuing state, unless the contrary is proved.”

Other legislative provisions of potential relevance

8 S. 10 of the Act of 2003 deals with the obligation to surrender, and in the form in which it was enacted at the time of the decision in Minister for Justice v Olsson [2011] 1 IR 384 it provided:

“10. Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person—

• (a) against whom that state intends to bring proceedings for an offence to which the European arrest warrant relates,

• (b) who is the subject of proceedings in that state for an offence in that state to which the European arrest warrant relates,

• (c) who has been convicted of, but not yet sentenced in respect of, an offence in that state to which the European arrest warrant relates, or

• (d) on whom a sentence of imprisonment or detention has been imposed in respect of an offence in that state to which the European arrest warrant relates,

that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state.”

9 It should be noted in passing that the words “ and the Framework Decision” on the penultimate line were removed by s. 5 of the European Arrest Warrant (Application to Third Countries and...