Supreme Court dismisses appeal where constitutional differences in trial procedures do not bar surrender under EAW Act.

THE SUPREME COURT

121/06

Murray C.J.

Macken J.

Finnegan J.

BETWEEN

MINISTER FOR JUSTICE, EQUALITY & LAW REFORM

APPLICANT / RESPONDENT

-V-

JOHN PAUL BRENNAN

RESPONDENT / APPELLANT

JUDGMENT of Murray C.J. delivered on the 4th day of May, 2007

The respondent in this appeal, the Minister for Justice, Equality and Law Reform, was granted an Order by the High Court pursuant to

s. 16(1) of the European Arrest Warrant Act, 2003 on foot of a European Arrest Warrant issued by a judicial authority of the United

Kingdom, namely a District Justice (Magistrate’s Court) sitting at Leeds Magistrate Court in that country.

There are two aspects to the European Arrest Warrant in question. The first aspect concerns the appellant’s conviction and sentence

in the United Kingdom on 6th March, 2002. On that occasion he was convicted of an offence of robbery and an offence of failing to

appear in Court in breach of the terms of a bail bond. He was sentenced to 54 months imprisonment in respect of the offence of

robbery and consecutively to six months imprisonment for the offence of breaching the terms of his bail bond. While serving the

sentences he absconded from prison on 11th May, 2003. The European Arrest Warrant seeks his return to the United Kingdom to

serve the balance of those sentences. The second aspect of the European Arrest Warrant concerns a request for his surrender to the

United Kingdom so that the appellant may be prosecuted and tried for an offence of escaping from lawful custody.

The learned High Court Judge, being satisfied that the requirements of s. 16(1) of the European Arrest Warrant Act, 2003, as

amended, had been fulfilled, made the appropriate Order for the return of the appellant to the United Kingdom in respect of all the

matters covered by the Warrant in question.

The Appeal

The issue raised by the appellant in the appeal only concerns the matter covered by the second aspect of the European Arrest

Warrant, namely the appellant’s return to the United Kingdom to stand trial in respect of the offence of escaping from lawful custody.

The basis of the appeal was summarised by the appellant in his written submissions as “an assertion by him that his constitutional

rights were infringed by the Order of [the High Court] … in the context of the Arrest Warrant issued against him disclosing that he

faces the imposition of a mandatory minimum sentence upon him should he be convicted of the offence of escaping from lawful

custody”.

The Arguments

In his submissions counsel for the appellant referred to the terms of the European Arrest Warrant which, under the heading “Nature

and Legal Classification of the Offence(s) and the Applicable Statutory Provision / Code”, gave the following information:

“Escaping from lawful custody is a common law offence and triable before a Judge and jury. It is punishable by a term of

imprisonment and a fine. The term is not prescribed and is at the discretion of the Judge. As it is a common law offence,

the maximum term of imprisonment that a Judge can impose is life.”

Counsel then referred to another part of the European Arrest Warrant, at a paragraph denoted as (h), which gave information

concerning measures applicable to persons sentenced to life imprisonment. Counsel cited in particular the passage:

“The offender has to serve an appropriate minimum period (the tariff) that reflects the punitive element of the sentence

…”

He submitted that there was at least some ambiguity as to what this phrase in the Warrant actually means. He stated that he had

applied to the learned trial Judge to exercise his powers pursuant to s. 20 of the Act of 2003 to seek clarification from the judicial

authority of the requesting State. It was further submitted, on the basis of that passage, that it appeared from the Warrant that the

appellant, on his return for trial to the United Kingdom, faced the imposition of some form of mandatory minimum period of

imprisonment, as it was put, on conviction for the offence of escaping from lawful custody. It was submitted that this means that the

appellant, in denial of his rights under the Constitution, would be sentenced to a mandatory minimum period which did not take into

account the particular circumstances of the case, including the personal circumstances of the appellant, in order to ensure that a

sentence of imprisonment was proportionate to those circumstances.

In support of his submissions counsel for the appellant relied, inter alia, on s. 37(1)(b) of the European Arrest Warrant Act, 2003, as

amended by the Criminal Justice (Terrorist Offences) Act, 2005, which provides:

“A person shall not be surrendered under this Act if –

…

(b) his or her surrender would constitute a contravention of any provision of the Constitution …”

This, it was submitted, expresses in statutory form principal of Irish law expressed by Finnegan P., as he then was, in Larkin –v-

O’Dea [1995] 2 I.R. when he stated:

“Insofar as the Constitution is concerned, in matters of extradition the Court has always had regard to the constitutional

rights of the person sought to be extradited.”

Counsel also relied on a number of judicial dicta on sentencing policy in criminal cases including that of Denham J. in People (D.P.P.) –

v- M. [1994] 3 I.R. 306 at 316 when she stated:

“… Sentences should be proportionate … It is therefore the duty of the Courts to pass what are the appropriate

sentences in each case having regard to the particular circumstances of the case – not only in regard to the particular

crime but in regard to the particular criminal … In a similar vein there is a constitutional protection.”

Accordingly, it was submitted, the proportionate nature of a sentence to be imposed is a constitutionally protected right in this

country which the appellant, if returned to the United Kingdom, would be denied. The only evidence before the High Court with regard

to the sentence to be imposed is that contained in the European Arrest Warrant and in the absence of any other evidence it was not

open to the learned High Court Judge to conclude that the constitutional rights of the appellant would not be infringed. Alternatively,

in the absence of any clarification from the issuing judicial authority there was no basis on which the learned trial Judge could have

been satisfied that the appellant’s constitutionally protected rights in this jurisdiction would not be encroached upon if he was

returned to the United Kingdom.

Submissions of the Respondent

There are essentially three grounds upon which the respondent in the appeal argued that the Order of the High Court should be

upheld.

Firstly, it was pointed out that the European Arrest Warrant stated that escape from lawful custody is punishable by a term of

imprisonment and that “the term of imprisonment is not prescribed and is at the discretion of the Judge”. On this basis, counsel

submitted, there cannot be said to be any statutory or other minimum sentence applicable for the offence in question. It was further

submitted that the purpose of para. (h) in the European Arrest Warrant, as relied upon by the appellant, is to specify which offences,

if any, are punishable by a sentence of life imprisonment and to explain the extent of which such a sentence is reviewable or subject

of the possibility of clemency. In referring at this point in the European Arrest Warrant to the fact that “the offender has to serve an

appropriate minimum period (the tariff) that reflects the punitive element of the sentence” the judicial authority was providing

information concerning the circumstances under which a person sentenced to life imprisonment may ultimately be released under

license or parole. It was submitted that there was no minimum sentence for the offence in question only a maximum sentence of life

imprisonment and that a “tariff” is relevant only where the sentence actually imposed is life imprisonment. Furthermore, it was

submitted that the use of the word “appropriate” in relation to the minimum tariff indicates a tariff which is specified by the trial Judge

in his discretion.

The second ground relied upon by the respondent is essentially a submission that it is not contrary to the provisions of the

Constitution, or principles implicit in those provisions, for the Oireachtas to prescribe mandatory minimum sentences for specified

offences. The wide legislative powers conferred on the Oireachtas include a power to select such sentences as are considered

appropriate by the Oireachtas to the nature of the offence. There cannot be, it was submitted, any “a priori assumption that a fixed

penalty or a mandatory minimum penalty is ipso facto unconstitutional. It is the Oireachtas that chooses the sentence and existing

case-law demonstrates that there would be no interference with such a choice unless the Oireachtas was acting in clear disregard of

the provisions of the Constitution”. Accordingly, it cannot in any event be said that the order for the appellant’s surrender would be in

breach of a constitutional right.

The third ground upon which the respondent relies in response to the appellant’s appeal is that the appellant is seeking to prohibit his

surrender on the grounds that constitutional principals applicable in Ireland should be applied to the criminal laws of the member

States of the European Union and then the other State to whom the Framework Decision applies. It was submitted that such an

approach was unsound for the following reasons:

“(a) It is for each sovereign member State to determine, according to the circumstances prevailing in that State, the

sanction that is to be imposed to enforce the criminal law.

(b) Choice of sentencing policy, by the legislature of another member State, is inherently in exercise of sovereignty by

that member State. Hence, neither this State nor our Courts would seek to interfere with that exercise of sovereignty.

(c) If a person has been surrendered then it is for that person, within the domestic legal system of the member State, to

challenge the validity of a mandatory minimum sentence in accordance with the law of that member State or its

international law obligation.”

As an addendum to the foregoing main grounds counsel for the respondent submitted that as regards the power of the High Court to

seek further information or documentation pursuant to s. 20(1) of the Act of 2003 this was purely a discretionary matter for the trial

Judge and he was entitled to exercise the discretion in the manner in which he did.

Decision of the High Court

The learned High Court Judge, having concluded that the offences the subject of the European Arrest Warrant satisfied the minimum

gravity requirement went on to observe:

“In that regard Mr. O’Higgins S.C. had sought to argue that there was some uncertainty about how long a sentence could

be imposed in the U.K. for the offence of escape contrary to common law. The European Arrest Warrant states that as it

is a common law offence the maximum sentence which a Judge could impose is life imprisonment, but at a later point in

the Warrant states that “the offender has to serve an appropriate minimum (the tariff) the reflects the punitive element

of the sentence …”

“Mr. O’Higgins submits that it is not clear what this minimum would be, and he submits that this is a breach of a

constitutional guarantee not to be exposed to a system where not only can the respondent receive a life sentence but he

can get an unspecified minimum sentence the length of which is unknown. I am satisfied that the Court on an application

is not concerned with a matter of that kind. The Court must be satisfied that the offence for which he is sought is one for

which it is possible to receive a sentence which satisfies the minimum gravity under the Act. Clearly a potential life

sentence comes within the meaning, and the fact that any sentence of a length less than life might be imposed in any

particular case does not take it out of that category. It is not necessary, as was submitted by Mr. O’Higgins, that this

Court should at least seek a clarification from the United Kingdom authorities in this regard.”

Decision

In this case the learned High Court Judge was satisfied, having considered the European Arrest Warrant and other material before him,

that s. 16(1) of the Act of 2003 had been satisfied. Having been so satisfied he was then bound to make an Order for the surrender

of the appellant unless there was established some other specific ground upon which an order for surrender ought be refused.

The only ground upon which that Order is challenged on appeal is that the learned High Court Judge was not entitled, on the

evidence, to ignore the fact that the appellant would allegedly be subject to a mandatory minimum sentence (and thus in turn

allegedly exposed to a breach of his constitutional rights) or in the alternative he could not have been satisfied that that was not the

case and ought to have exercised his powers under s. 20(1) of the Act of 2003 to seek clarification from the issuing judicial authority.

This alleged obligation of a trial Judge in the United Kingdom to impose some minimum mandatory sentence, without exercising any

discretion, is the basic premise of the appellant’s case from which the other arguments flow.

That initial premise of the appellant is not well-founded. In my view there is no evidence to support that assertion. Indeed it is simply

described as an “assertion” in the written submissions of the appellant. In the alternative, it was submitted that there was at least an

ambiguity on the point. Neither do I think there is any such ambiguity for the reasons set out below, and in any event the onus is on

a respondent to establish that there are cogent grounds for refusing to make an order for surrender when the learned trial Judge is

otherwise satisfied that he should make an order for surrender pursuant to s. 16(1) of the Act of 2003.

As regards the substance of the appellant’s argument, the European Arrest Warrant in question clearly states that the offence of

escaping from lawful custody is triable before Judge and jury and then follows the statement already quoted above, to the following

effect:

“It is punishable by a term of imprisonment and a fine. The term is not prescribed and is at the discretion of the Judge. As

it is a common law offence, the maximum term of imprisonment that a Judge can impose is life.”

That statement makes it quite clear that the length of sentence, within the maximum allowed, is at the discretion of the trial Judge.

The other statement made in the European Arrest Warrant and relied upon by the appellant, is that found at para. (h) of the Warrant

which says that “the offender has to serve an appropriate minimum period (the tariff) that reflects the punitive element of the

sentence”. Even taking that sentence separate from the rest of para. (h) it appears on its face to refer only to the punitive element

of the sentence which has been imposed at the discretion of the trial Judge.

In any case that sentence must be read in its context. The reference at paragraph (h) to this aspect of the sentencing regime for

the offence of escape from lawful custody is found on the fourteenth page of the European Arrest Warrant in a passage which

contains the following heading:

“(h) The following offences on the basis of which the warrant has been issued are punishable by a custodial life sentence

or lifetime detention order;” (Emphasis added)

This is followed by the statement:

“Escape from lawful custody

The offender has to serve an appropriate minimum period (the tariff) that reflects the punitive element of the sentence.

Once his punitive term of imprisonment has expired the offender enters into the risk element of the sentence. He may only

be detained if he continues to present a risk to the public. All lifers are released under a license that remains in force for

the rest of their lives. The life license can be revoked at any time if necessary on public protection grounds.

An independent Parole Board conducts a review of the prisoner’s sentence once the punitive element of the sentence has

expired. A Judge chairs this panel. …”

The insertion of the foregoing paragraph in the European Arrest Warrant on the fourteenth page at paragraph (h) is for the purpose of

complying with the form for such a warrant set out in an annex to the Council Framework Decision of 13th June, 2002 on the

European Arrest Warrant and Surrender Procedures between Member States. The Framework Decision is annexed to the Act of 2003.

The appellant’s return to the United Kingdom is sought pursuant to the system of surrender between Member States as envisaged by

that Framework Decision. In the Framework Decision itself the actual heading for paragraph (h) is in the following terms:

“The Offence(s) on the basis which this warrant has been issued is (are) punishable by / has (have) led to a custodial life

sentence or lifetime detention order:”

The heading underlined above in the passage quoted from the actual warrant in this case is an appropriate adaptation of that

heading.

The information required to be inserted under this heading in a European Arrest Warrant derives from Article 5 of the Framework

Decision which first of all provides:

“The execution of the European Arrest Warrant by the executing judicial authority may, by the law of the executing

Member State, be subject to the following conditions:”

One of the three conditions in Article 5 is contained in paragraph 2 of that Article which states:

“if the offence on the basis of which the European Arrest Warrant has been issued is punishable by custodial life sentence

or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing

Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the

latest 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law

or practice of the issuing Member State, aiming at a non-execution of such penalty or measure;”

The form of European Arrest Warrant contained in the Framework Decision indicates that the information which may be provided under

paragraph (h) of the European Arrest Warrant is information concerning measures or practices which allow for a review of a life

sentence, at least after 20 years, or which allow for the application of measures of clemency.

It is quite clear that the purpose of providing this information in a warrant is to indicate such measures and relates only to cases

where a person is liable to be sentenced to a life sentence or whose return is sought for the purpose of serving a life sentence which

has already been imposed.

That is why the statement, referred to by the appellant, is in such a warrant and it has nothing to do with statutory minimum

sentencing. It is there for the purpose of enabling a State, which has imposed the kind of condition referred to in Article 5(2) of the

Framework Decision, to examine whether it has been complied with.

Thus it is quite clear, that the above passage in the Warrant before the Court, which the appellant has so heavily relied on, has been

inserted in the Warrant in this case solely for the purpose of explaining the parole or clemency measures or practices which can be

applied in the United Kingdom to a prisoner who has been sentenced to life imprisonment. Of course it is nowhere stated, nor is it

asserted on behalf of the appellant, that if the appellant is convicted of the offence of escape from custody following a surrender to

the United Kingdom that he would necessarily be sentenced to life imprisonment. What term of imprisonment might be imposed in such

an event is clearly within the discretion of the sentencing court.

Having come to that conclusion the appellant fails on the first and fundamental premise of his appeal. It also follows that the learned

trial Judge was quite correct in exercising his discretion pursuant to s. 20 of the Act of 2003, which was exclusively a matter for him,

not to seek further information from the requesting State. Accordingly, the appeal should be dismissed and it is not strictly necessary

to address the other issues which have been raised.

However I do consider it appropriate to refer to the submission made on behalf of the appellant which contends that if a form of

minimum sentence, without any discretion being left to the Court, did apply, then the surrender of the appellant would be contrary to

his constitutional rights and therefore contrary to s. 37(1)(b) of the Act of 2003.

The appellant’s argument proceeded, inter alia, on the assumption that a sentencing regime which provided for the imposition of a

minimum sentence for a particular offence, without leaving a trial Judge any discretion to be exercised in the circumstances of the

case, would be contrary to the Constitution and therefore that the extradition of a person to be sentenced in a foreign State

according to such a sentencing regime should be disallowed pursuant to the provisions of s. 37.

I do not consider it necessary at all to consider the question as to whether, and if so, in what circumstances or to what extent,

judicial discretion as to the sentence to be imposed on a person convicted of a criminal offence may be constitutionally circumscribed

by the legislature in the context of mandatory sentencing.

The Act of 2003, as amended, is the means adopted by the State to give effect to its obligations under the Framework Decision. As I

stated in The Minister for Justice, Equality and Law Reform –v- Altaravicius (Supreme Court, 5th April, 2006, unreported) the Act

must be interpreted in the light of the terms of the Framework Decision and in particular with regard to the objects to be achieved.

This is the interpretative approach set out by the Court of Justice in relation to Framework Decisions in the Pupino case (C-105/03

ECJ 16th June, 2005). The system or mechanism of surrender sought to be established by the Framework Decision applies in all

Member States of the European Union. Again, as I pointed out in Altaravicius,

“Recital 5 in the preamble to the Framework Decision refers to “… the introduction of a new simplified system of surrender

of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences …” It has as its

object “… to remove the complexity and potential for delay inherent …” in pre-existing extradition procedures. … As that

Recital, Recital 6 and Article 1.2 make clear it is founded on the mutual recognition of judicial decisions and judicial

cooperation within the European Union. Recital 10 emphasises “the mechanism of the European Arrest Warrant is based on

a high level of confidence between Member States”. Both the preamble and provisions of the Framework Decision as well

as the Act of 2003 acknowledge that in operating this system of surrender fundamental rights, including fairness of

procedures, must be respected and provide for certain safeguards in that respect.”

There is no doubt that the operation of the process for surrender as envisaged by the Act of 2003, as amended, is subject to

scrutiny as to whether in any particular case it conforms with constitutional norms and in particular due process so that, for example,

the respondent in such an application has an opportunity to be duly heard in the proceedings.

However the argument of the appellant goes much further. He has contended that the sentencing provisions of the issuing State, in

this case the United Kingdom, did not conform to the principles of Irish law, as constitutionally guaranteed, governing the sentencing

of persons to imprisonment on conviction before our Courts for a criminal offence.

The effect of such an argument is that an order for surrender under the Act of 2003, and indeed any order for extradition, ought to

be refused if the manner in which a trial in the requesting State including the manner in which a penal sanction is imposed, does not

conform to the exigencies of our Constitution as if such a trial or sentence were to take place in this country. That can hardly have

been the intention of the Oireachtas when it adopted s. 37(1) of the Act of 1973 since it would inevitably have the effect of ensuring

that most requests for surrender or extradition would have to be refused. And indeed if that were the intent of the Framework

Decision, which the Act of 1973 implements, and other countries applied such a test from their own perspective, few, if any, would

extradite to this country.

Indeed it may be said that generally extradition has always been subject to a proviso that an order for extradition, as with any order,

should not be made if it would constitute a contravention of a provision of the Constitution. I am not aware of any authority for the

principle that the extradition or surrender of a person to a foreign country would contravene the Constitution simply because their

legal system and system of trial differed from ours as envisaged by the Constitution.

The manner, procedure and mechanisms according to which fundamental rights are protected in different countries will vary according

to national laws and constitutional traditions. The checks and balances in national systems may vary even though they may have the

same objective such as ensuring a fair trial. There may be few, if any, legal systems which wholly comply with the precise exigencies

of our Constitution with regard to these matters. Not all for example will provide a right to trial by jury in exactly the same

circumstances as our Constitution does in respect of a trial for a non-minor offence. Rules of evidence may differ. The fact that a

person would be tried before a judge and jury in this country for a particular offence could not in my view, be a basis for refusing to

make an order for surrender solely on the grounds that in the requesting State he or she would not be tried before a jury. The

exceptions which we have to the jury requirement, as in trials before the Special Criminal Court, acknowledges that a fair trial can

take place without a jury even though it is constitutionally guaranteed for most trials in this country.

That is not by any means to say that a Court, in considering an application for surrender, has no jurisdiction to consider the

circumstances where it is established that surrender would lead to a denial of fundamental or human rights. There may well be

egregious circumstances such as a clearly established and fundamental defect in the system of justice of a requesting State where a

refusal of an application for surrender may be necessary to protect such rights. It would not be appropriate in this case to examine

further possible or hypothetical situations where this might arise. The sole matter which I wish to make clear here is that the mere

fact that a trial or sentence may take place in a requesting State according to procedures or principles which differ from those which

apply, even if constitutionally guaranteed, in relation to a criminal trial in this country does not of itself mean that an application for

surrender should be refused pursuant to s. 37(2) of the Act.

I would dismiss the appeal.