Supreme Court allows surrender under EAW Act despite delay, as respondent caused the time lapse.

THE SUPREME COURT

Appeal No. 087 of 2006

Murray C.J.

Denham J.

Geoghegan J.

Fennelly J.

Kearns J.

BETWEEN:/

THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM

APPLICANT/APPELLANT

-AND-

ROBERT FRANCIS STAPLETON

RESPONDENT

JUDGMENT of MR JUSTICE FENNELLY delivered on the 26th day of July, 2007.

This appeal concerns the European Arrest Warrant. The Minister (hereinafter “the Applicant”) appeals against the decision of the High

Court (Peart J) refusing to order the surrender of the Respondent to the United Kingdom. The learned trial judge decided, pursuant to

section 37 of the European Arrest Warrant Act, 2003 (hereinafter “the Act”), that the surrender of the Respondent would constitute

an infringement of the constitutional rights of the Respondent, by reason of the lapse of time since the alleged commission of the

offences for which the Respondent is to be tried.

The Proceedings

The Respondent is an Irish citizen, aged sixty three years. Prior to 1994, he had lived for a number of years in the United Kingdom and

subsequently in Spain and, for a short time, in France. Since the end of 1994, he has lived in Ireland.

A European Arrest Warrant (“the EAW”) was issued by on the 20th July 2005 at Bow Street Magistrates’ Court, London. The warrant

relates to a total of 30 offences involving fraud. The offences are alleged to have been committed over a period from 1978 to 1982. It

is alleged that the Respondent obtained in excess of Stg£3 million through the commission of these offences.

The EAW was duly transmitted to the Central Authority in the State and endorsed by the High Court for execution pursuant to the

provisions of the Act. The Respondent was arrested on 14th September 2005 at Redgap, Rathcoole, County Dublin, brought before

the High Court and committed to prison pending the hearing of the application for an order for his surrender.

The Respondent filed a number of Points of Objection. The only one of present relevance is that based on section 37 of the Act,

which is the ground upon which the Respondent succeeded before Peart J. He also filed a notice claiming that the Criminal Justice

(Terrorist Offences) Act 2005 is repugnant to the Constitution in that it represents a disproportionate implementation of the objective

of enforcement of the European Union Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender

Procedures Between Member States (the “Framework Decision”). The learned trial judge dismissed that claim. The Respondent has

appealed to this Court. The constitutional matter was not argued at the hearing of the appeal and remains outstanding.

In the course of the proceedings before the High Court, the Respondent unsuccessfully applied for discovery of a wide range of

documents from the authorities of the issuing Member State (the United Kingdom). Affidavits were exchanged, including one from

each side concerning law and procedure in the English courts.

Following a hearing on 13th December 2005, the learned trial judge gave judgment on 21st February 2006 refusing the order for

surrender of the Respondent.

Background: The Facts

Normally, it would be unnecessary to consider the nature of the offences in any detail. However, the Respondent states that he

wishes to advance a very specific line of defence to the charges, involving allegations of collusion in his activities by the Export Credit

Guarantee Department of the United Kingdom. This has become linked with his complaint about prejudice resulting from delay and

makes it necessary to advert to the nature of the charges he faces.

The EAW contains the following account of the circumstances in which the offences are alleged to have been committed:

“In August 1985 an investigation was launched following allegations made by the Department of Trade and Industry that

the Directors of two Lincoln-based companies, Lumiere Ltd. and Ultraleisure Ltd., had committed a large-scale fraud.

Robert Francis Stapleton, the person sought, was the Chairman of both companies which manufactured and supplied fold-

away squash courts. It is alleged that between 20th May 1978 and 31st December 1982, the period of time covered by

the offences, Robert Francis Stapleton masterminded a fraud from which he obtained in excess of £3 million to support his

companies and fund an extravagant lifestyle. The nature of the fraud was essentially very simple. Bogus invoices and

supporting documents, for example shipping certificates, were typed up that purported to show that Ultraleisure had

exported goods and services to foreign buyers. Two banks, Coutts and Co. and Lloyds Bank, then advanced funds to

Ultraleisure in the belief that the transactions represented on the documents were genuine. When it became necessary

for Ultraleisure to repay an advance on the maturity of the relevant promissory note, a larger advance was obtained on

similarly false documents and part of that used to repay the earlier borrowing. Ultraleisure therefore had to borrow ever

larger sums of money to hide the fraud.”

While there is much dispute about the facts surrounding the Respondent’s departure from the United Kingdom and subsequent events,

it is not so much the essential chronological history that is in dispute as the interpretation to be placed on events.

The Respondent says that he is entirely innocent of the charges and that he could not be prosecuted for similar offences under the

law of the State, by reason of the lapse of time. The offences are alleged to have been committed on dates ranging now from 24 to

29 years ago.

The Respondent says that he wishes to mount a defence which is both complex and wide-ranging. He accepts that the company,

Ultraleisure Ltd. went into liquidation on 13th June 1983. He says, however, that the events described in the EAW were not a fraud

“masterminded” by him. In fact, he says that they were the creation of the Export Credit Guarantee Department of the United

Kingdom, designed to circumvent the State Aid Rules of the European Community. The Banks were content to collude in supplying

bridging finance because the borrowing was guaranteed by the ECGD. He says that a problem arose when a Danish journalist

uncovered the existence of a Swiss Company which was the vehicle to provide security for the ECGD. The response of the ECGD was

to leave that company unaided which resulted in its liquidation. At this stage, neither the ECGD nor the Banks are willing to assist the

Respondent.

The Respondent says that he would require the evidence of a large number of witnesses to enable him to present his defence. He

mentions at least seventeen such potential witnesses and says that three of them have died since the occurrence of the relevant

events. In addition, he would require “the retention and disclosure of all relevant documentation in the possession of the relevant

companies’ liquidators, the relevant companies’ auditors and accountants, the relevant banks and ECGD and related government

departments.” He says that much of the relevant documentation was in his wife’s or his own possession and that it has been disposed

of in the ordinary course of events or lost or destroyed. In particular, the files of his UK auditors have been destroyed.

He mentions one person, Mr John Taylor, manager of Lloyds Bank, Lincoln Branch, who has since died. He had tape-recorded an

interview with Mr Taylor shortly before his death. Mr Taylor had told him that Lloyds Bank and the ECGD had worked closely together

“on the construction and/or management of the transactions which form the subject matter of these charges.” He says that the tape

has been taken by the Lincolnshire Police and not returned to him.

The Respondent also says that his wife was tried in the United Kingdom in 1986 for participation in these or similar offences. She was

convicted and received a suspended sentence. Her solicitors have destroyed their files. The Respondent would require transcripts in

connection with her trial.

At this point, I will refer to the affidavit evidence of Mr Derek Canton, a retired member of the Lincolnshire Police Force. He was an

Officer with that force from 1st September 1975 to 31st August 2005. On 30th September 1985, he became involved in an inquiry into

allegations of fraud and conspiracy against the Respondent.

Mr Canton says that the Respondent was chairman of a group of companies in Lincolnshire between 1978 and 1984. His wife was a

director of a number of the companies. A report from a liquidator of two of the companies, Lumiere Ltd. and Ultraleisure Ltd., of which

the Respondent was Chairman, reported on 19th October 1984 that the directors of these companies had committed a large-scale

fraud. These suspicions were reported to the Director of Public Prosecutions for England and Wales in 1985. That led to the

establishment of a six-man investigation team within the Lincolnshire Police Force.

Mr Canton refers to a separate set of charges of fraudulent activity related to Value Added Tax which were preferred against the

Respondent in 1985. He was committed to stand trial in respect of these matters and was to appear at Lincoln Crown Court on 28th

October 1985. He had been granted unconditional bail by Magistrates in order to attend his trial at Lincoln Crown Court. Mr Canton

refers to Court records (the Respondent objects to the use of these records) purporting to show that on 2nd October 1985, the

Respondent was in Spain suffering from a nervous breakdown. The records also show that the Respondent did not appear for a

Direction Hearing and was not represented, though his legal representatives later wrote to state that they had been unable to obtain

instructions. A warrant was issued for the arrest of the Respondent on 28th October 1985. Mr Canton also alleges that the

Respondent collected his son from school in Cumbria on 26th October 1985. Finally, the Crown Court records include a letter from the

Respondent’s wife dated 1st November 1985 explaining his non-appearance as being due to illness.

Clearly, Mr Canton is not in a position to verify, from his own knowledge, several of the matters mentioned in the preceding

paragraph. Nonetheless, their main tenor is not seriously disputed by the Respondent.

The Respondent, in his first affidavit sworn on 18th October 2005, stated that his son had been diagnosed with a serious skin

condition in 1983 and that, based on medical advice, the family moved to live in Spain in September 1985. They had been “openly”

looking for accommodation in Spain since June 1984. He says he returned to England in October “shortly before the school midterm

break” and made three visits and several telephone calls to the Lincolnshire Police.

He did not move to Spain to “avoid charges.” On the other hand, the Respondent does not deny that he was aware of the VAT-

related charges. He says that he was phoned in Spain by his solicitor to tell him that the police wished to search his house, that he

flew back to England to be present, but that the search had been conducted in his absence.

On return to Spain, he contracted bronchitis which developed into pneumonia. He received a telephone call on 27th October 1985

informing him of the hearing in Lincoln Crown Court on 28th October. He was unable to attend due to his illness. He states: “I now

understand that the Court issued a warrant for my arrest.” This gives the impression that he had only recently learned of that fact.

With regard to the criminal proceedings relating to alleged VAT fraud, he says:

“I had believed that those proceedings, which, as far as I was concerned, were entirely misconceived from the outset,

had subsequently discontinued and that the warrant had simply lapsed.”

The Respondent does not give any basis for these beliefs or state when he arrived at them. It is of note that, on 14th August 1986

Spanish lawyers acting for the Respondent wrote to the Lincolnshire Police referring to the charges in respect of which he had been

committed for trial and stating, inter alia, that the Respondent intended to return to the United Kingdom to face trial. That letter also

referred to the issue of a warrant by the Judge at Lincoln Crown Court on 28th October 1985, whereas his affidavit of October 2005

gives the clear impression that he had only then learned of that fact. In a second affidavit, the Respondent complains bitterly about

the behaviour of the requesting state and accuses it of introducing “prejudicial hearsay of the grossest kind,” of making scurrilous

allegations, “cheap shots” and the like. He does not suggest that he was unaware of the proceedings or of the fact that he was

returned for trial and was on bail. He explains that the warrant was issued by the Lincoln Crown Court when he was bed-bound in

Spain. He appears to accept that he had visited Sedbergh school to collect his son, as alleged by Mr Canton, though he disputes the

state of his health as then observed.

There is much dispute about peripheral matters, including the circumstances leading up to and during the trial of the Respondent’s

wife. The Respondent specifically alleged that he had a fear of being subjected to “inhuman and degrading treatment.” That was

based on the fact that his wife was, as is admitted, detained in custody pending her trial for almost three months before being

granted bail and that during some or all of that time she was “held as a ‘category A’ or high security prisoner.” He gave no details of

the circumstances or conditions in which his wife was detained. In any event, the learned trial judge ruled that the Respondent’s

claim that he would be subjected to inhuman and degrading treatment was “nowhere nearly made out.” There is no appeal on the

point and it is unnecessary to consider it further.

He complains, in addition, that, at the outset of his wife’s trial, the judge made a ruling excluding evidence from the ECGD and Lloyds

Bank. This evidence would, he says, have shown how the ECGD used Swiss companies to circumvent EU state-aid rules. He believes

that any similar ruling at his own trial, which he says is “probable,” would constitute a breach of his rights pursuant to the European

Convention on Human Rights.

The Respondent says that, at the request of his wife, he did not return to England after her arrest. He explains that, if he were

charged and detained in custody, a substantial risk would arise that their children might be placed in care. Nonetheless, he claims

that he was never a fugitive “in relation to the charges at issue, since no charges were ever preferred against [him] prior to [his]

family’s move to Spain and no warrant ever issued for [his] arrest until……14th January 2004.” He moved to Spain for reasons

connected with his son’s health and was not motivated by any wish to avoid charges in the UK. He was not aware, at the time he

moved to Spain, of the absence of any extradition arrangements between the two countries.

The Respondent continued to reside with his family in Spain. For reasons related to the health of their son, they moved to Montpelier

in France (on an unnamed date apparently in the early 1990’s) until they moved to Ireland in December 1994. The Respondent states

that he and his family have always resided in the various places mentioned openly and under their own names. He has conducted

business and established companies in Ireland.

In respect of his period in Spain, the Respondent complains that the Lincolnshire Police made no effort to visit or question him while

he was there, though he did, he says, in fact receive a visit from Treasury Solicitors representing the ECGD in 1991.

Mr Canton says that there were no extradition arrangements between the United Kingdom and Spain at the time the Respondent was

being sought. Furthermore, when such arrangements were subsequently made, they were not made retrospective under Spanish law.

Thus, they did not cover the offences in question. While, the Respondent claims that he openly moved to and lived in Spain, it is clear

that the police believed he had moved there in order to avoid prosecution in the UK.

Mr Canton does not deny that Mrs Stapleton was detained as a Category A prisoner and even refers to suggestions that, apart from

the risk of escape, the police were motivated by some concerns regarding the use of firearms and other violent action. Mr Canton

does not know the source of such information. He asserts that the Respondent was fully aware that the Lincolnshire Police wished to

interview him and points out that the Respondent has not, over a period of more than twenty years returned to the United Kingdom

to answer questions in respect of deficiencies in his group of companies, although he did cause his solicitors to write to the

Lincolnshire Police in 1986 complaining about various police actions. Mr Canton says that the Police considered it inappropriate to visit

the Respondent in Spain where the requirements of English law were not enforceable and in a country from which he could not be

extradited or otherwise compelled to answer criminal charges. The visit by the Treasury Solicitors, of which the Lincolnshire Police

learned after the event, related to a civil matter connected with the liquidation of the companies. Mr Canton adds that, in August

1996, following contact between these two bodies, the ECGD solicitors visited the Respondent at his solicitors’ offices in Spain.

Lincolnshire Police were not concerned in either meeting. Curiously, this 1996 meeting took place after the Respondent had been

resident in this jurisdiction since the end of 1994.

Mr Canton says that the Lincolnshire Police received information in 2001 that the Respondent was living near Dublin, but they had no

such prior information. Having confirmed his identity, the Police reported to the Crown Prosecution Service and instructions were given

to reassess the case against the Respondent “in order to determine viable witness evidence.” In June 2002, Mr Canton reported back

to the Crown Prosecution Service and thereafter to junior and senior counsel. Following a number of enquiries a decision was made to

apply for extradition of the Respondent in November 2003. Subsequently, the Director of Public Prosecutions for England and Wales

gave instructions not to apply for extradition pending the coming into force of the European Arrest Warrant procedure on 1st January

2004. Subsequently again, a decision was made not to proceed in the Respondent’s case until the determination of the appeal to this

Court in the case of Dundon v Governor of Cloverhill Prison [2006] 1 I.R. 518.

So far as the line of defence outlined by the Respondent is concerned, Mr Canton says that he is unaware of any of the matters

alleged concerning the ECGD and that, in any event, they are irrelevant to the criminal charges. He appears to accept that certain

evidence of the type alleged by the Respondent was excluded at the trial of Mrs Stapleton, but says that this was because the judge

held it not to be relevant in that the alleged avoidance or circumvention of EC State Aid Rules did not occur until after the date of all

of the alleged offences. That evidence was, on the other hand, admitted at the later trial in England of a fellow director of the

companies. Mr Canton says that the issue of admissibility of any such evidence or statements as is referred to will be determined by

the Court that tries the Respondent.

The High Court Judgment

The learned High Court judge declined, essentially on the ground of delay, to make the order, sought by the Applicant, for the

surrender of the Respondent.

He observed that the complaints of the Respondent were in large measure the kind of submissions which could have been made under

section 50(2) (bbb) of the Extradition Act 1965, introduced by amendment by the Extradition (Amendment) Act, 1987. Since that

provision was repealed by the 2003 Act, the Respondent could not rely upon it.

He assessed the Respondent’s complaints of delay in the context of section 37 of the 2003 Act. His key conclusion on the law was

that the Court should not order the surrender of a requested person if to do so would not be compatible with this State’s obligations

under the European Convention on Human Rights or its Protocols, or would constitute a breach of any provision of the Constitution.

He believed that there was “no meaningful distinction to be drawn between surrendering the respondent to the requesting state to

face a trial which would be either unfair or not within a reasonable time, and him actually facing such a trial.” His view was that:

“… if the applicant enjoys a Convention and a constitutional right to a trial of offences with which he is charged within a

reasonable time, that is a right which he is entitled to invoke and have protected on the first occasion on which it

becomes relevant for argument, and that it is not a matter to be postponed so that it can be ventilated at some date in

the future in another country, and after the respondent has been returned in custody to that place.”

In addition, he believed that the High Court was “in just as good a position to be satisfied as to whether the respondent would

receive a trial on these offences within a reasonable time as a Court in the requesting state.”

The learned judge reviewed all of the evidence, much of it summarised above, in great detail. In particular, he reviewed the affidavit

evidence sworn on behalf of the respective parties by two English barristers. Mr Peter Caldwell, on behalf of the issuing state,

outlined in considerable detail the principles governing criminal trials in England, referring, inter alia, to the obligation of full disclosure

of the prosecution case, to allow sufficient time to prepare a defence, and the opportunity to question and call witnesses. Most

relevantly, he referred to the existence of the procedure for placing a stay on proceedings on the ground of abuse of the court’s

process where there has been unjustifiable delay in the proceedings. Mr Caldwell swore that there were sufficient remedies available

in English law “to ensure that Mr Stapleton can have a fair trial.” Mr Michael Mansfield QC, in an affidavit on behalf of the Respondent,

accepted that “a court may order a stay of a criminal prosecution where it considers that the prosecution is an abuse of court

process.” He drew a distinction between the prosecution obligations of disclosure which applied at the time of the offences alleged

against the Respondent and the more onerous obligations which have been applied under later case-law. He deduced from this that

“……the domestic courts are unlikely to stay the case on the grounds of abuse of process because although the prosecution would

have breached current standards of disclosure, they did not breach standards applicable at that time.”

The learned trial judge was persuaded, having examined the affidavits of English law, to make the following observations:

· He was not assured by the affidavit of Mr Caldwell, sworn on behalf of the United Kingdom authorities, that there is the

same probability as would in his view exist in this jurisdiction, that the respondent would be successful in his application

to have his trial stayed on the grounds of lapse of time;

· He thought it was clear that under the English jurisprudence referred to by that deponent, there was not the same

regard for what he described as a free-standing right to an expeditious trial, even in the absence of actual prejudice;

· He found that there was no contradiction of Mr Mansfield’s opinion (on behalf of the Respondent) that given the date of

the alleged offences the more recent disclosure rules would not be applicable to the prosecution’s obligations as to

disclosure of all material.

He could not, therefore, “accept that the rights of the respondent under the Constitution would not be contravened by his being

surrendered at this point in time to face trial on these charges…” and continued: “I do not believe that it would be appropriate to

expose him to the hazard that his rights might not be vindicated there in the same manner in which they would in my view in this

jurisdiction.”

The Appeal

The central issue in the appeal is the extent to which our courts, in dealing with surrender requests under the procedures for the

European Arrest Warrant should seek to incorporate Irish case-law with regard to lapse of time or delay in criminal proceedings by

grafting it on to surrender requests. The Applicant also referred to parts of the evidence to show that, in any event, the Respondent

was himself a principal author of the delay which has occurred between the dates of the offences he is alleged to have committed

and the initiation of the procedures leading to the request for his surrender.

Mr George Bermingham, Senior Counsel for the Applicant recalled a number of aspects of the evidence. First, a number of points are

made relating to the Respondent’s conduct in reference to the original VAT-related charges. He was aware that he was on bail to

appear at Lincoln Crown Court on 28th October 1985, but did not appear. His explanations regarding his own illness and that of his

child do not enable him to escape the undoubted fact that he was wanted for prosecution on criminal charges in England. Indeed, his

wife wrote to the Clerk of the Lincoln Crown Court on 1st November 1985 explaining that her husband was unable to travel as he was

suffering from pneumonia. The Respondent, on affidavit, explains his continued failure to answer these charges, as stated above, by

stating his belief, without furnishing any basis for that understanding, that those charges “had subsequently discontinued and that

the warrant had simply lapsed.” Nonetheless, lawyers, wrote on his behalf from Madrid on 14th August 1986, acknowledging that a

warrant had been issued for the arrest of their client on 28th October 1985 and stating, inter alia, that the Respondent wished to

return to England to face trial.

There were no extradition arrangements between the United Kingdom and Spain at the time the Respondent moved to Spain. The

Respondent has sworn that “at the time of [his] family’s move to Spain, [he] knew nothing…” of these matters (my emphasis).

However, it is clear that he was aware of the fact of his wife’s prosecution in England on charges closely related to those in respect

of which his surrender is sought. He did not, himself, return to England at that or any other time. On affidavit, he explains that his

wife was adamant that he stay in Spain, “at first to look after the children and later to avoid being subjected to the same ordeal that

she was being forced to undergo.” He also claims to have received “legal advice that [he] could better assist [his] wife’s case by

remaining at liberty in Spain, than by running the risk of arrest and detention – under Category A status – in the United Kingdom.”

The Respondent also makes a particular point of alleging that he lived openly in Spain and that the Lincolnshire police could have

interviewed him in that country at any time. Mr Canton’s response is that the police did not consider it appropriate to interview a

suspect in circumstances where they had no police powers. This, it is submitted was a reasonable attitude to take.

The foregoing is rather secondary to the general question of the correct approach for the court to take to the question of delay. I

would comment, nonetheless, that it has to be a material fact that the Respondent himself has been a significant, if not the major,

contributor to the lapse of time of which he complains. On the facts, it seems to me to be quite obvious that the Respondent, while

he may have had other motives, knowingly moved to reside in Spain at a time when he was fully aware that he was wanted by the

police in the United Kingdom. His plea of having lived “openly” in Spain is unconvincing. It appears that he conducted vigorous

correspondence with the Lincolnshire police, gave press interviews and caused questions to be asked in the House of Commons. He

did not, however, return to the United Kingdom to face charges. While this matter was much debated at the hearing, I did not

understand Mr Brian O’Moore, Senior Counsel for the Respondent to dispute that these matters can at least be taken into account.

I turn then to consider the general question of delay.

The parties were agreed that section 40 of the 2003 Act is not the governing provision, though it might, at first sight, appear to be

relevant. That section provides:

“A person shall not be surrendered under this Act where—

(a) the act or omission constituting the offence specified in the European arrest warrant issued in respect of him or

her is an offence under the law of the State, and

(b) the person could not, by reason of the passage of time, be proceeded against, in the State, in respect of the

second-mentioned offence.”

Counsel agreed that this provision applies only to a situation where the actual offence in respect of which surrender is sought could

be prosecuted in the State. The purpose of section 40 is to give effect to Article 4.4 of the Framework Decision. Article 4 lists

“Grounds for optional non-execution of the European arrest warrant.” It provides:

“The executing judicial authority may refuse to execute the European arrest warrant:

………………………………………………………………………………………...

4. where the criminal prosecution or punishment of the requested person is statute-barred according to the law of

the executing Member State and the acts fall within the jurisdiction of that Member State under its own criminal

law…”

The effect of Article 4.4 and of section 40 is to permit refusal to surrender to an issuing Member State in a case where the actual

offence could form the subject-matter of a prosecution in the executing Member State, but is statute-barred in the latter. It is

accepted that this situation does not prevail here.

The appeal, therefore, must be considered, as it was considered by the learned trial judge, in the context of section 37(1) of the Act,

which provides:

37.—(1) A person shall not be surrendered under this Act if—

(a) his or her surrender would be incompatible with the State's obligations under—

(i) the Convention, or

(ii) the Protocols to the Convention,

(b) his or her surrender would constitute a contravention of any provision of the Constitution (other than for the

reason that the offence specified in the European arrest warrant is an offence to which section 38 (1)(b) applies),

(c) there are reasonable grounds for believing that—

(i) the European arrest warrant was issued in respect of the person for the purposes of facilitating his

or her prosecution or punishment in the issuing state for reasons connected with his or her sex, race,

religion, ethnic origin, nationality, language, political opinion or sexual orientation, or

(ii) in the prosecution or punishment of the person in the issuing state, he or she will be treated less

favourably than a person who—

(I) is not his or her sex, race, religion, nationality or ethnic origin,

(II) does not hold the same political opinions as him or her,

(III) speaks a different language than he or she does, or

(IV) does not have the same sexual orientation as he or she does,

or

(iii) were the person to be surrendered to the issuing state—

(I) he or she would be sentenced to death, or a death sentence imposed on him or her would be

carried out, or

(II) he or she would be tortured or subjected to other inhuman or degrading treatment."

I have quoted sub-section (1) in its entirety, as it reflects provisions or recitals of the Framework Decision. Only paragraphs (a) and

(b) have been invoked in this case. Paragraph (c) reflects recitals (12) and (13) of the Framework Decision. Thus, the legislature

intentionally gave effect, in Irish law, to some of the parts of the preamble to the Framework Decision, which do not correspond to

and have not been implemented by any substantive provisions in the body of that instrument. I have commented upon the problems

of interpretation presented by this incongruity in the drafting of the Framework Decision in my concurring judgment in Dundon v

Governor of Cloverhill Prison, cited above.

It is clearly established that this Court is obliged to interpret provisions of the 2003 Act, so far as possible, in the light of and so as

not to be in conflict with provisions of the Framework Decision (see (Case C-105/03) Criminal proceedings against Pupino [2005] ECR

I-5285.) The corner stone of the entire system is, of course, the principle of mutual recognition of the judicial decisions and mutual

trust of the legal systems of the other Member States.

Paragraphs (a) and (b) of Section 37(1) concern respectively the State’s obligations under the European Convention on Human Rights

and Fundamental Freedoms and, though rights are not expressly mentioned, rights guaranteed by the Constitution. No relevant

distinction, for the purposes of the case, between the two provisions emerged during argument. The Respondent’s complaints are all

referable, directly or indirectly, to the right to a fair trial.

Mr Bermingham argued, in the first instance, that issues of delay or lapse of time are covered expressly by Article 4.4 of the

Framework Decision and section 40 of the Act in a manner which does not assist the Respondent. Mr Bermingham also cited a number

of cases decided under the extradition regime which existed between some Member States prior to the entry into force of the

European Arrest Warrant. He cited, in particular, Hanlon v Fleming [1981] I.R. 489, a case concerning the procedure for endorsement

of warrants pursuant to Part III of the Extradition Act, 1965, where there had been a very long lapse of time between the alleged

commission of the offence charged and the potential extradition. Henchy J, speaking for a unanimous Supreme Court ruled at page

494 of the judgment:

“As to the first point, the delay has been inordinate and it is in part unexplained; but I do not think it is in itself a good

ground for refusing extradition. The failure to have the charge against the accused tried in due time in London has been

the accused's own fault primarily. Such evasion of a trial is usually the reason for extradition proceedings. If the accused

had not broken bail and fled to Ireland, the charge against him would have been tried and disposed of long since. If the

superimposed delay, due to the extraordinary lapse of time between the hearing in the High Court and the delivery of the

reserved judgment, could be said to imperil or render impossible a fair trial, that would be a matter which would have to

be raised in the first instance in an English court. But the scheme of reciprocal extradition between Ireland and The United

Kingdom, represented on the Irish side by the Extradition Act, 1965, does not recognise delay as a ground for refusing

extradition. For the Courts in this State to recognise delay as such a ground, it would be necessary to read into the

statute something that has been omitted, presumably, on purpose.”

That decision pre-dated the insertion, by section 2 of the Extradition (Amendment) Act, 1987, of section 50(2)(bbb) into the

Extradition Act, 1965. That provision did allow the court to have regard to “lapse of time…… and other exceptional circumstances”

such that it would, “having regard to all the circumstances, be unjust, oppressive or invidious to deliver” the person. As already

mentioned, the learned trial judge ruled that the Respondent was not in a position to rely on that provision in the High Court, since it

had been repealed by the Act of 2003.

Mr Bermingham also referred to Harte v Fleming [1988] I.L.R.M. 70, where Carroll J, in the High Court followed and applied the dictum

of Henchy J, quoted above.

The nub of the issue and the core of the debate between counsel at the hearing of the appeal was whether the undisputed delay or

lapse of time since the dates of the alleged offences is a matter to bne considered by these Courts, as the courts of the executing

Member State, as the High Court decided, or rather is a matter to be considered by the courts of the issuing Member State.

Mr Bermingham submitted that, at least on the facts of this case, adjudication on lapse of time is a matter for the issuing Member

State. He relied on the existence, as established in the evidence and as accepted by the learned trial judge, of procedures entitling

the Respondent to a hearing on that issue. He acknowledged that it might be established in other cases that the procedures in the

issuing Member State were so inadequate or so divergent from what is regarded as fair under our law as to demonstrate that the

human rights of the person in question would be infringed on surrender. The Applicant, in his written submissions, drew attention to

the approach adopted by the Queen’s Bench Division in England in Woodcock v Government of New Zealand [2004] 1 WLR 1979. That

court was concerned with an extradition request in respect of sexual offences alleged to have been committed many years previously.

Simon Brown LJ said that the question was not whether “having regard to the passage of time, it would be unjust to try the accused,

but rather whether it would be unjust to return him (albeit, of course, return him for trial).” In answer to that question, as appears at

page 1985 of the report, he said:

“To my mind that entitles, indeed requires, this court to have regard to whatever safeguards may exist in the domestic

law of the requesting state to ensure that the accused would not be subjected to an unjust trial there. There are, it

should be borne in mind, clear advantages in having the question whether or not a fair trial is now possible decided in the

domestic court rather than by us. That court will have an altogether clearer picture than we have of precisely what

evidence is available and the issues likely to arise. For example, the accused is likely to be interviewed on return (in New

Zealand, we are told, under caution administered in terms similar to our own) so that more is likely to be known about his

defence. If, of course, we were to conclude that the domestic court in the requesting state would be bound to hold that

a fair trial of the accused is now impossible, then plainly we would regard it as unjust (and/or oppressive) to return him.

Equally, we would have no alternative but to reach our own conclusion on whether a fair trial would now be possible in

the requesting state if we were not persuaded that the courts of that state have what we would regard as satisfactory

procedures of their own akin to our (and the New Zealand courts') abuse of process jurisdiction.”

He went on to say that it seemed plain that the New Zealand courts had satisfactory procedures for guarding against an unjust trial.

The Applicant proposes that test to this Court as being consistent both with existing Irish authority and the principle of mutual

recognition of and respect for judicial decisions of other Member States.

The Applicant also referred to a number of authorities to establish the proposition that a person whose extradition is sought will not

succeed in relying on delay which is the result of his own actions: Harte v Fleming, (already cited, Per Carroll J at page 74); Ellis v

O’Dea [1991] I.L.R.M. 346; Sloan v Culligan [1992] 1 I.R. 223; Quinlivan v Conroy and Sreenan [2000] 3 I.R. 154. In Kwok Ming Wan v

Conroy [1998] 3 I.R. 527, Hamilton C.J. at page 533 cited with approval a passage from the judgment of Lord Diplock in Kakis v.

Republic of Cyprus [1978] 1 W.L.R. 779 at p. 783 of the report:

"Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by

fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for

holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his

defence in consequence of the delay due to such causes are of his own choice and making. Save in most exceptional

circumstances it would be neither unjust nor oppressive that he should be required to accept them."

Both the House of Lords and the Supreme Court were concerned in the two cases last mentioned to apply specific but different

statutory provisions permitting delay to be taken into account. Their precise terms do not matter. The interpretation of the cause of

delay does.

Mr O’Moore, by contrast, maintained in argument that Recital 12 of the Framework Decision permits a Member State to include

provision for national constitutional rights of due process and that section 37 of the 2003 Act permits an individual to claim that his

constitutional rights will be infringed if he is surrendered. Thus, if a person can discharge the burden of showing that a fair trial is

impossible, if he is surrendered, it is incumbent on this Court to vindicate his rights. He argued that it was irrelevant whether the

Respondent had contributed to any delay. He relied on the part of the judgment of Simon Brown LJ, cited above, where he said that,

if it were clear that “the domestic court in the requesting state would be bound to hold that a fair trial of the accused is now

impossible,” it would be unjust or oppressive to return him. By extension, he argued that it is for this Court to determine whether a

fair trial is possible in England. This Court should consider the fairness of trial procedures in the issuing Member State it should not

surrender the Respondent if there is a risk that his trial will not be fair.

Mr O’Moore distinguished Hanlon v Fleming and Harte v Fleming as being based on particular statutory construction and not having

considered the issue of fair trial or the constitutional right of due process.

Conclusion

Judicial decisions delivered under prior extradition arrangements can undoubtedly assist in analysing the sorts of problem that will

necessarily continue to arise in practice under the Framework Decision and implementing legislation. The first recital to the Framework

Decision declares that “the formal extradition procedure should be abolished among the Member States.” The new system is,

nonetheless, one whereby a person is to be surrendered, whether or not under the name of extradition, for trial on criminal charges in

another jurisdiction. His rights are necessarily at issue. The Framework Decision, as it declares, in Article 1.3, is not to “have the

effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty

on European Union.”

There is one central difference between the European Arrest Warrant and former extradition arrangements. Recital (6) of the

Framework Decision refers to “the principle of mutual recognition…” as “the ‘cornerstone’ of judicial cooperation.” Moreover, as is

stated in Recital (10):

“The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its

implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of

the principle set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of

the said Treaty with the consequences set out in Article 7(2) thereof……”

It is true that the principle of mutual trust and confidence must also have been at the heart of former bilateral or multilateral

extradition arrangements. Such arrangements were (and still are so far as extradition arrangements with states outside the European

Union are concerned) an expression of the sovereign power of the respective states. They implied at least some level of mutual

political trust and, at the judicial level, confidence in the legal systems of the cooperating states. McCarthy J, in his concurring

judgment in Ellis v O’Dea [1991] I.R. 251 at 262 stated:

“The making of the extradition arrangement presupposes that the Government and the Oireachtas are satisfied, amongst

other things, that, an Irish citizen being extradited either to the United Kingdom, as in this instance, or to any other State

with which Ireland has such an arrangement, will not have his constitutional rights impaired.”

Murray C.J., in his judgment in Altaravicius v Minister for Justice, Equality and Law Reform (Supreme Court unreported 5th April 2006,

[2006] IESC 23) cited the above passage before referring, in the context of the Arrest Warrant to “…the principles and objects

recited in the preamble to the Framework Decision when it refers to mutual recognition of judicial decisions, judicial cooperation and a

high level of confidence between Member States.”

The principle of mutual recognition applies to the judicial decision of the judicial authority of the issuing Member State in issuing the

Arrest Warrant. The principle of mutual confidence is broader. It encompasses the system of trial in the issuing Member State. The

Court of Justice has ruled, in its recent decision in Case C-303/05 Advocaten voor de Wereld v Leden van de Ministerrad, delivered in

3rd May 2007 (since the hearing of this appeal) that the issuing Member State, as is “stated in Article 1(3) of the Framework

Decision, must respect fundamental rights and fundamental legal principles as enshrined in Article 6 EU……”

It follows, in my view, that the courts of the executing Member State, when deciding whether to make an order for surrender must

proceed on the assumption that the courts of the issuing Member State will, as is required by Article 6.1 of the Treaty on European

Union, “respect .. .human rights and fundamental freedoms.” Article 6.2 provides that the Union is itself to “respect fundamental

rights, as guaranteed by the European Convention on Human Rights and Fundamental Freedoms…………and as they result from the

constitutional traditions common to the Member States, as general principles of Community law.”

Article 1.3 of the Framework Decision, read with the recitals to the Framework Decision and, as further explained by the Court of

Justice in the decision in Advocaten voor de Wereld, imposes these obligations, which in turn impose the obligations found in Article 6

of the Convention on each issuing Member State when seeking the surrender of a person and, necessarily in any subsequent trial

process. It follows that I am satisfied that the learned trial judge was mistaken in holding that there was “no meaningful distinction to

be drawn between surrendering the respondent to the requesting state to face a trial which would be either unfair or not within a

reasonable time, and him actually facing such a trial.” Equally, he was, mistaken in holding that the Respondent was entitled to have

his right to a speedy trial

“…protected on the first occasion on which it becomes relevant for argument, and that it is not a matter to be postponed

so that it can be ventilated at some date in the future in another country, and after the respondent has been returned in

custody to that place.”

The learned trial judge found that there were possible differences between the level of protection to which the Respondent would be

entitled pending trial in England and what would be available to him in this jurisdiction. Firstly, he considered that there was not, in

the other jurisdiction, “the same regard for a free-standing right to an expeditious trial, even in the absence of actual prejudice.” In

this respect, it seems that the learned trial judge may have been proceeding on the assumption that the Respondent would, if he

were to be tried in this jurisdiction, be entitled to apply to have his trial prohibited on the ground of delay alone. His decision was, of

course, pronounced prior to the decision of this Court in P.M. v Director of Public Prosecutions [2006] I.L.R.M. 361. In that case,

Kearns J, speaking for a unanimous Court explained, at page 373, the need for a balancing exercise, where a person seeks to prohibit

his trial on the ground of delay: “……an applicant must put something more into the balance where prosecutorial delay arises to

outweigh the public interest in having serious charges proceed to trial.” More generally, I do not believe it has ever been established,

in spite of a number of obiter dicta raising that possibility, that a person is entitled to have his trial prohibited on the basis of mere

delay, without more. Secondly, he accepted the opinion of Mr Mansfield, Q.C., to the effect that the more recent disclosure rules in

criminal trials in England would not benefit the Respondent.

The learned trial judge was mistaken in seeking parity of criminal procedure in the issuing Member State. It is apparent that, even

under the long-established extradition jurisprudence, as it applied between some Member States prior to 2004 and, as it still applies

between this country and third countries, such a comparison was not required. Extradition does not demand that there be parity of

criminal procedures between contracting states. It is notorious that criminal procedures vary enormously between states. Indeed, it is

obvious that they approximate much more closely between this country and the United Kingdom than between either of those states

and the great majority of Member States practising the civil law system, where, for example, there is no tradition of cross-

examination of the sort practised in our courts, and which is here regarded as totally fundamental to the rights of the defence.

Since the hearing of this appeal, this Court has given judgment in the case of Minister for Justice Equality and Law Reform v Brennan

[2007] IESC 21, where Murray C.J. considered the correct approach to the balancing of constitutional rights against the obligations of

the state pursuant to the Framework Decision. The appellant there contended that, if a form of minimum sentence, without any

residual judicial discretion would be applied in the issuing state, his surrender would be contrary to his constitutional rights and

therefore contrary to s. 37(1)(b) of the Act of 2003. The Chief Justice, with whom the other members of the Court agreed, responded

to that submission as follows:

“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.

……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.

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. ……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 cannot see that any of the differences discerned by the learned trial judge between the right to seek prohibition of trial in the

English courts and our own could amount to the establishment of infringement of the right to fair trial, or fair procedures, whether by

reference to the Convention or to the Constitution. They certainly do not amount, to repeat the words of Murray C.J., to “a clearly

established and fundamental defect in the system of justice of [the] requesting State.”

On the facts of this case, there is available to the Respondent a procedure which will enable him, on surrender to the issuing Member

State to seek a remedy based on the very long period of time which has elapsed since the alleged commission of the offences.

Moreover, on the facts of the case, it is demonstrably more efficient and more convenient that those matters be debated before the

courts of the country where the Respondent is to be tried. The prosecuting and police authorities as well as other witnesses are

available to and amenable to the jurisdiction of the courts of that country. Documentary evidence, of the type demanded by the

Respondent, will be more readily available there. If not, its absence may be more readily explained. There may, in addition, be

arguments or points of domestic law, whether based on precedents or otherwise, which the Respondent can advantageously argue or

rely upon which may not be available to him in this jurisdiction and of which an Irish court might not necessarily be aware. I would

echo and adapt the words of Simon Brown L.J. in the Woodcock case cited above and say that the English courts “will have an

altogether clearer picture than we have of precisely what evidence is available and the issues likely to arise…”

Thus, I do not think the learned trial judge was right to refuse to make the order for surrender on the grounds of delay.

In these circumstances, it is not strictly necessary to rule on the effect of the Respondent’s own very substantial contribution to the

lapse of time which has occurred. On the evidence, the Respondent was responsible for all delay from 1985 to 2001, when the

Lincolnshire police first became aware that he was residing in Ireland. He made a deliberate decision to reside in Spain in 1985, at a

time when he knew that he was wanted in the United Kingdom for trial on charges, other than those relevant to the present

application. He failed to answer for his bail. A bench warrant was issued, but he declined to return to the United Kingdom. Even if he

swears that he was unaware of the absence of extradition arrangements between the United Kingdom and Spain at that time, it is

quite clear that he became aware some time thereafter—at a time when he was aware that his wife was arrested in the United

Kingdom for offences linked to the present offences—that he was safe in Spain. It is an obvious inference from his affidavit that he

made a considered decision to remain in Spain.

His suggestion that he was living “openly” in Ireland from the end of 1994 does not impress. The Lincolnshire police did not know that

he was here until September 2001. The only contact between the Respondent and the Lincolnshire police was in 1986, when the

Respondent, via Spanish lawyers, made a series of allegations of wrongful behaviour against the police. There was undoubtedly some

delay from 2001 until 2004 when the initial steps for the issue of the Arrest Warrant were taken. Mr Canton explained the need to

establish that the evidence was still “viable.” He reported back to the Crown Prosecution Service in June 2002. Advice from counsel

was needed. This and other steps seem to have taken up to November 2003, when a decision was taken to seek extradition. The

United Kingdom authorities decided to await the entry into force of the new European Arrest Warrant procedure and the outcome of

one of the first legal cases concerning that new procedure. There is no doubt that the comparative slowness of all these procedures

may well be open to criticism. However, each of the steps taken was in itself reasonable. A final decision as to the periods involved

can best be made by the English courts in the context of any application that may be made to stay the trial. Taken in the overall

context of lapse of time, any delay from 2001 is comparatively minor. The major delay was from 1985 to 2001. The Respondent must

bear the entire responsibility for that period. The authorities already cited support the rather obvious proposition that a person will

not be heard to claim that delay in the prosecution of extradition proceedings is unfair or oppressive, where he has himself been the

author of the delay.

For this additional reason, therefore, I would reject the Respondent’s reliance on delay or lapse of time. He was himself the principal

culprit.

I would, therefore, allow the appeal and make an order for the surrender of the Respondent. Counsel should be heard with regard to

the disposal of the outstanding question of the constitutionality of the Criminal Justice (Terrorist Offences) Act 2005.