The Minister for Justice and Equality v D.E.

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 01 July 2021
• Neutral Citation: [2021] IECA 188
• Docket Number: Record No.: 34/2021
• Court: Court of Appeal (Ireland)

In the Matter of the European Arrest Warrant Act 2003, as Amended

Between/

The Minister for Justice and Equality

Applicant/Respondent

and

D.E.

Respondent/Appellant

[2021] IECA 188

Birmingham P.

Edwards J.

Donnelly J.

Record No.: 34/2021

THE COURT OF APPEAL

European arrest warrant – Surrender – Personal and family life – Respondent seeking the surrender of the appellant – Whether surrender was incompatible with the State’s obligations to respect personal and family life

Facts: The appellant contended that his surrender to the United Kingdom of Great Britain and Northern Ireland was prohibited because of the impact it would have on his personal and family life by virtue of his role as carer to his wife and son. The Supreme Court had addressed the issue of respect for family and personal life in the context of the duty to surrender pursuant to the European Arrest Warrant Act 2003, as amended on a number of occasions. The appellant maintained that, because the issue was clouded by other factors raised in those cases, no defining or overarching test had been identified by the Supreme Court as to the circumstances if and when, surrender must be refused under s. 37 of the 2003 Act on the basis that surrender would be incompatible with his constitutional right to family and private life and Article 8 of the European Convention on Human Rights (ECHR). The High Court certified the following questions for the purpose of an appeal to the Court of Appeal pursuant to s. 16(11) of the 2003 Act: “In the context of proceedings under the European Arrest Warrant Act 2003 as amended, where a respondent objects to surrender on the basis that same is precluded by s. 37 of the said Act as it would be in breach of the respondent’s rights under art. 8 ECHR and having particular regard to the provisions of art. 8(2) ECHR: 1. Can personal or family circumstances, in and of themselves, provide a basis upon which surrender might be precluded by s. 37 of the Act of 2003? 2. What is the appropriate test to be applied by the Court in determining whether such an objection is sustained and that surrender should be refused? 3. In so far as exceptionality may be a relevant factor in determining such an objection, what is the appropriate test to be applied by the Court in determining whether the circumstances found to exist are so exceptional as to justify refusal of surrender”.

Held by Donnelly J that: (i) in an application for surrender, the Court is not carrying out a general proportionality test on the merits of the application; (ii) surrender (or extradition) presupposes an impact on the personal or family life of a requested person; (iii) when faced with an Article 8 objection to surrender, the function of the Court is to decide if the surrender is incompatible with the State’s obligation under the ECHR; (iv) the evidential burden of proving incompatibility lies on the requested person; (v) the assessment of the claimed impact of surrender on personal and family rights must be a rigorous one; (vi) the evidence must be cogent and must reach the level of incompatibility; (vii) exceptionality is not the test for incompatibility, but it will only be in a truly exceptional case that surrender will be found to be incompatible with the State’s obligations under Article 8 of the Convention; (viii) for an Article 8 objection to succeed, there must be clear cogent evidence sufficient to rebut the presumption in s. 4A of the 2003 Act; (ix) no elaborate factual analysis or weighing of matters is necessary unless it is clear that the facts come close to a case which would be truly exceptional in nature thereby engaging the possibility that surrender may be incompatible with the State’s obligations under the Convention; (x) the requirement that the circumstances must be shown to render the order for surrender incompatible with the State’s obligations under Article 8 necessitates that the incursion into the private and family rights referred to in Article 8(1) is such as to supervene the limitations on the right contained in Article 8(2), and over the significant public interest thresholds set by the 2003 Act itself; (xi) where the facts come close to being truly exceptional in nature thereby engaging the possibility that surrender might be incompatible with the State’s obligations, the Court will engage in a proportionality test of whether the high public interest in the prevention of disorder and crime (and the protection of the rights of others) is overridden by the personal and family circumstances (taken where appropriate with all the cumulative circumstances) of the requested person.

Donnelly J held that, on the application of those principles to the appeal, the factors relied upon by the appellant were not such as to reach the high threshold to demonstrate that they were close to the margin where surrender might be said to be incompatible with the State’s obligations to respect personal and family life. Donnelly J dismissed the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Donnelly delivered on the 1st day of July, 2021

Introduction

1 The appellant contends that his surrender to the United Kingdom of Great Britain and Northern Ireland (“the UK”) is prohibited because of the impact it would have on his personal and family life by virtue of his role as carer to his wife and son. The Supreme Court has addressed the issue of respect for family and personal life in the context of the duty to surrender pursuant to the European Arrest Warrant Act, 2003, as amended (“the 2003 Act”) on a number of occasions. The appellant maintains however that, because the issue was clouded by other factors raised in those cases, no defining or overarching test has been identified by the Supreme Court as to the circumstances if and when, surrender must be refused under s. 37 of the 2003 Act on the basis that surrender would be incompatible with his constitutional right to family and private life and Article 8 of the European Convention on Human Rights (“ECHR”). This appeal raises those issues directly.

The Certified Questions

2 The High Court certified the following questions for the purpose of an appeal pursuant to s. 16(11) of the 2003 Act:

“In the context of proceedings under the European Arrest Warrant Act 2003 as amended, where a respondent objects to surrender on the basis that same is precluded by s. 37 of the said Act as it would be in breach of the respondent's rights under art. 8 ECHR and having particular regard to the provisions of art. 8(2) ECHR:

• 1. Can personal or family circumstances, in and of themselves, provide a basis upon which surrender might be precluded by s. 37 of the Act of 2003?

• 2. What is the appropriate test to be applied by the Court in determining whether such an objection is sustained and that surrender should be refused?

• 3. In so far as exceptionality may be a relevant factor in determining such an objection, what is the appropriate test to be applied by the Court in determining whether the circumstances found to exist are so exceptional as to justify refusal of surrender”

Article 8 – Right to respect for private and family life

3 Article 8 ECHR provides as follows:

• “1. Everyone has the right to respect for his private and family life, his home and his correspondence.

• 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Evidence in the High Court

4 The appellant's surrender is sought for the prosecution of three offences of a sexual nature upon a young girl in the UK between the dates of May 1998 and May 2001. One of the offences allegedly comprised multiple incidents of a sexual nature.

5 The appellant's objection to his surrender is raised in what the appellant maintains is a highly unique set of family circumstances — namely the severe disabilities of his son and his wife, his role as sole carer for them and the consequential impact upon them in the event of his surrender.

6 The appellant resides at an address in the west of Ireland with his wife and son. Both his wife and his son have significant physical disabilities. The High Court heard that his son who was 19 has spastic cerebral palsy with diplegia causing a very significant degree of physical disability. His legs and hips are very weak; he cannot walk independently and even then only for short distances. He mobilises with the aid of a walker (which the appellant maintains) and supportive calipers for both legs. He uses the calipers with foot splints and a specialised electrical device called a functional electronic stimulator to help him clear his feet off the ground. Letters from a consultant paediatrician and an orthopaedic surgeon were exhibited confirming that his son has a significant and life-long physical disability and that he requires a high level of continuous care and support.

7 A letter from a senior physiotherapist in Enable Ireland set out in more detail his son's reduced range of movement in his joints and his general difficulties with mobilisation. The letter further sets out that as a result of the severity of his son's cerebral palsy, he is dependent in many of his activities of daily living, dressing, showering, preparing meals and could not have managed in school without a full-time special needs assistant. The appellant gets his son out of bed, helps him get dressed and to go to the toilet. He helps him into his walker and assists him with breakfast. If he falls, the appellant is the only one who can pick him up as his wife is unable to do so. His wife is also prone to falls and requires the...