The Minister for Justice and Equality v Liam Campbell

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr Justice Peter Charleton
• Judgment Date: 09 May 2022
• Neutral Citation: [2022] IESC 21
• 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

Judgment of Mr Justice Peter Charleton delivered 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 functioning, even in an area as straightforward as the surrender of suspects, has, however, proven to be fertile soil for contentions that the transfer as between countries infringes rights of the suspect. Sometimes, what is imbedded as a necessary element of the fair disposal of an accusation against a person in one legal system may be presented as a violation of rights that are elsewhere assumed to be inviolable. And that has been the argument in this case, as in so many before.

6 Reading s 10, the first two paragraphs, on basic statutory construction principles that every word and every subsection and section must be presumed there for a purpose, there are two different situations: that of surrender because a requesting state “intends to bring proceedings for an offence to which the relevant arrest warrant relates”; and that of surrender of a suspect who is, in apparent contrast, merely a person “who is the subject of proceedings in that state for an offence in that state to which the relevant arrest warrant relates”. A flat contradiction is then to be found in s 21A which limits surrender to the first situation by providing that “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” though, once a judicial request for surrender has been issued, it is to “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.” Section 21A was not part of the 2005 Act as promulgated but was introduced in March 2005 by s 79 of the Criminal Justice (Terrorist Offences) Act 2005. Reading the provisions in the context of each other, a suspect may not be surrendered unless the issuing state intends to bring proceedings for an offence upon a decision to charge and try him or her for that offence.

7 It is an established principle of European Union law, that, in order for Directives and Framework Decisions to be given full effect, national bodies and courts must interpret domestic law in the light of these provisions. The principle of conformity of interpretation requires that domestic law be interpreted in such a way so as to give effect to, and not undermine, the goals and objectives of European instruments. It was applied in the joined cases of C-397/01 and C-403/01 Pfeiffer and others v Deutsches Rotes Kreuzm Kresverband Waldshut eV [2004] ECR 2004 I-08835, where the ECJ, in response to a preliminary reference from a German court, stated that German labour law had to be read in conformity with the provisions of the Working Time Directive, consolidated into Directive 2003/88/EC. The Directive set weekly working time at a maximum of 48 hours on average, while German law allowed more than this; emergency workers were being expected to work between 49 and 54 hours per week. The CJEU noted that this was capable of a conforming interpretation.

8 The CJEU however has recognised that there are limits to the requirement of conforming interpretation. Relevant here is the restriction that national law cannot be interpreted in such a way so that it is rendered contra legem. This was the case in Case C-105/03 Criminal proceedings against Maria Pupino [2005] ECR 2005 I-05285 whereby, despite the binding nature of the Framework Decision and the requirement that national authorities give effect to its provisions through interpretation, national law cannot be interpreted contra legem. National law, therefore, cannot be interpreted in such a way that goes against its clear wording or meaning, simply because this would be in conformity with the provisions of EU law.

9 The respondents in this case have contended that Article 21A of the 2003 Act can be read in conformity with the relevant Framework Decision which enshrines the goal of surrender between contracting states. This would go a step beyond what is...