The Minister for Justice and Equality v Liam Campbell

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 09 May 2022
• Neutral Citation: [2022] IESC 21
• Court: Supreme Court
• Docket Number: Supreme Court appeal number: S:AP:IE:2021:000093 [2021] IECA 219 High Court record number 2016/203 EXT [2020] IEHC 344

Between

The Minister for Justice and Equality

Applicant/Respondent

and

Liam Campbell

Respondent/Appellant

[2022] IESC 21

MacMenamin J

Dunne J

Charleton J

Baker J

Hogan J

Supreme Court appeal number: S:AP:IE:2021:000093

Court of Appeal record number: 2020/144

[2021] IECA 219

High Court record number 2016/203 EXT

[2020] IEHC 344

An Chúirt Uachtarach

The Supreme Court

Surrender – Presumption – European Arrest Warrant Act 2003 s. 21A – Appellant appealing from order for surrender – Whether the presumption provided by s. 21A(2) of European Arrest Warrant Act 2003 was rebutted

Facts: The appellant, Mr Campbell, was sought to face trial in the Republic of Lithuania in relation to three offences of smuggling, the possession of firearms and terrorism. The Court of Appeal ([2021] IECA 219), upheld the order of the High Court made on 13 July 2020 ([2020] IEHC 344) for the surrender of the appellant in accordance with the provisions of s. 16(1) of the European Arrest Warrant Act 2003 (as amended). The appellant appealed to the Supreme Court from that order. The Supreme Court gave leave to appeal by determination dated 22 September 2021 ([2021] IESCDET 107), the matter of general public interest there identified being the interpretation and application of s. 21A of the 2003 Act in the light of what the appellant said were conflicting decisions of the Court in Minister for Justice, Equality and Law Reform v Olsson [2011] IESC 1 and Minister for Justice, Equality and Law Reform v Bailey [2012] IESC 16. It was argued that a “decision” had not been made to charge and try the appellant in the issuing state. The key argument made by the appellant in the application for leave was that s. 21A must be interpreted literally and the word “decision” in the section cannot be given an interpretation in conformity with EU law. The grounds of appeal were as follows: (a) the Court of Appeal erred in law and fact in dismissing the appeal from the High Court; (b) the Court of Appeal erred in determining that s. 21A of the 2003 Act was capable of a conforming interpretation with the Framework Decision; and (c) the Court of Appeal erred in law and in fact in finding that there was on the evidence a decision to charge and try the applicant in accordance with s. 21A.

Held by Baker J that there was on the facts an intention to prosecute in the sense required by s. 21A because, just as in Olsson, the prosecuting authorities in both instances had committed themselves to a prosecution to the greatest extent possible under their respective legal systems. She held that this did not mean that an interpretation or application of the Act must be strained, but it did mean that an overly technical analysis which demands conformity with Irish criminal process is inappropriate and wrong; thus there may be a degree of flexibility in the application of s. 21A provided that does not offend its meaning and purpose. She held that an inference that a decision has been made on surrender to try or charge a requested person is not sufficient. She held that s. 21A requires that the High Court refuse surrender if no decision to charge and try has been made, the presumption makes that fact a starting point provided the other procedural requirements are met, and if evidence is adduced that permits the requested court to conclude that a decision has not been made, or that the evidence is such that the best the court can do is draw an inference from circumstances, the legislation in its terms must be interpreted as meaning that surrender is precluded. She held that this appeal did not require an inference to be drawn that Mr Campbell would be tried and charged; the evidence went considerably further, and pointed to a decision by the Lithuanian authorities that he would be charged and tried, and that there was a high probability that the decision would in due course be realised and the trial proceed following the completion of the mandatory preliminary questioning.

Baker J held that the appellant had not rebutted the presumption provided by s. 21A(2) that a decision has been made to charge a person with and try him or her for that offence, such that the onus of establishing that the requirements of s. 21A(1) are not satisfied lies on the person resisting surrender. She held that the appeal should be dismissed.

Appeal dismissed.

Judgment ofMr Justice Peter Charletondelivered on Monday May 9 ^th 2022

1 These brief comments concur with the principal judgment of Baker J and are offered in support of her analysis. Extradition, or in European law terms, surrender for criminal proceedings or imprisonment following a trial and absconding within the European Union, occurs when a requesting state seeks to have returned to its territory a suspect against whom proceedings are contemplated or who has already been convicted and who has escaped serving the relevant sentence. Here, the concern is not with a sentenced offender who has absconded but, rather, the degree to which proceedings must have advanced before our courts may surrender a person suspected of participating in a crime. Traditionally, extradition has only been for trial and not to enable a requesting state to question a person suspected of an offence. A person cannot be extradited for the purpose of facing an examination by a magistrate whereby, as in many civil law systems in Europe, those involved as witnesses or as persons of interest may be examined in order to determine if there is a sufficient case for trial and to prepare the dossier for the court of trial which will form the basis of the process whereby an accused may be convicted or acquitted. Under European law we refer to the ‘issuing state’, which under treaties of extradition would have been the ‘requesting state’; of itself implying almost automatic compliance in the country to which the issued warrant is addressed.

Extradition and surrender

2 Ordinarily, extradition, as a state to state arrangement, is a matter of political action where the function of the courts is as to proof of technical compliance with the underlying treaty or with the Extradition Act 1965. Hence, s 15(1) of the 1965 Act enables the Minister for Justice and Equality to decline to extradite a suspect to the requesting state even though the courts have enabled extradition and no prosecution in Ireland against that person is to proceed; Marques v Minister for Justice and Equality[2019] IESC 16. That, however, is not the legal basis of the European Arrest Warrant, introduced through mutual agreement among European countries and formulated as a justice measure of mutual obligations in 2002 as 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States and statements made by certain Member States on the adoption of the Framework Decision, now in amended form in Official Journal L 190, 18/07/ 2002 P 0001 – 0020. That legal basis is not that of political action in handing over a suspect. Rather, in European law, surrender is mandatory if the conditions in law are met. That obligation is necessitated by membership of the European Union and participation in the scheme of surrender as promulgated.

3 Once the conditions of minimum seriousness and double criminality are met, (some crimes such as child pornography, terrorism and dealing in munitions bypassing that rule) the suspect must be surrendered to that other requesting European state. Article 1.1 provides that an EAW is “a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.” While Article 1.3 provides that the obligation to surrender does not modify “fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union”, the obligation on receipt is unequivocal in Article 1.2:

Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.

4 That obligation is precisely enacted in s 10 of the European Arrest Warrant Act 2003, as amended, and is in similarly unequivocal language:

Where a judicial authority in an issuing state issues a relevant arrest warrant in respect of a person —

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

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

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

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

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

5 It is wholly exceptional for the High Court to refuse surrender on foot of an EAW. While akin to extradition, the entire point of the Framework Decision is to enable surrender as between states which enjoy, as between themselves, a sufficient degree of confidence in each other's legal systems that transfer for trial becomes a swift and routine process; joined cases C-404/15 and C-659/15 [2016] Aranyosi and Căldăraru v Generalstaatsanwaltschaft Bremen. As of December 2001, Ireland made a statement that this jurisdiction would “in the implementation into domestic legislation of this Framework Decision, provide that the European Arrest Warrant shall only be executed for the purpose of bringing that person to trial” or to execute a custodial sentence. Melding several disparate legal systems into harmonised...