Supreme Court dismisses appeal on European arrest warrant execution regarding double criminality verification.

THE SUPREME COURT

430/2005 and 441/2005

Murray C.J.

Denham J.

Kearns J.

Macken J.

Finnegan J.

BETWEEN

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

APPLICANT/APPELLANT

AND

SMR

RESPONDENT/RESPONDENT

Judgment of Mr Justice Finnegan delivered on the 15th day of November 2007

The Respondent was arrested on the 18th April 2005 on foot of a European arrest warrant issued on the 17th February 2005,

endorsed by the High Court on the 12th April 2005. He is an Irish national and was born on the 12th November 1939. The European

arrest warrant relates to three offences under section 14 of the United Kingdom Sexual Offences Act 1956 of indecent assault on his

granddaughter who was born on the 28th December 1991 and which offences it is alleged were committed between the 30th June

2000 and the 1st September 2001.

The Respondent left Ireland to work in England at the age of 15 and continued to live there until 2001 but frequently returning to

Ireland for holidays and to visit relations. His wife died in July 2000. As a result of his wife’s death the family home had to be sold to

satisfy claims of the Inland Revenue. His intention had been to reside in England with a daughter and son-in-law but he changed his

mind after returning from a family holiday in Ireland in 2001 and in 2001 returned to live in Co. Kerry in sheltered accommodation

provided by the Town Council. He describes his tenancy as a tenancy for life: while in practical terms this may be so the tenancy

itself provides that it may be terminated at any time by the Council on giving four weeks notice. The tenancy further provides that

the tenant shall not without the permission of the Council cease to reside in the premises for more than six weeks in any period of

fifty two weeks.

The circumstances in which the offences were committed are set out in the European arrest warrant at paragraph (e) thereof as

follows –

“S M R is the maternal grandfather of the complainant S N (date of birth 28/12/91). Following his wife’s death his

daughter C, S’s mother, looked after his financial affairs and did general day-to-day things such as shopping and cooking

for him. In late August 2001 the N family and S M R travelled to Tralee in Ireland to visit S M R’s family. At the end of the

holiday S M R decided to stay on and the N family returned home by boat and car. During the journey S told her mother

that she did not like the way her grandfather touched and kissed her. C did not push S for details but, after they returned

home, the girl told her mother that her grandfather had French kissed her (kissed her putting his tongue in her mouth) at

a golf club near their home. On another occasion in his flat he had told her to sit next to him, had put his arm around her

shoulder and had digitally penetrated her vagina through the material of her trousers. On a third occasion, whilst playing

hypnotist, he had knelt beside her and rubbed his hand over her body, chest and legs. He then French kissed her several

times telling her it was “their secret and not to tell any one”. All the alleged offences were committed between 30th June

2000 and 1st September 2001 in Barnet, England. When S’s mother and her aunt confronted their father with the child’s

allegations he did not deny them but said that he had been lonely since his wife’s death. The family and S M R agreed

that it would be better if he stayed in Ireland and did not report the matter to the police. However during 2002 S R

returned sporadically to the B area and the family contacted Social Services who, in turn contacted the police and the

family made a complaint.

S M R returned to Ireland and has never been arrested or interviewed about these allegations.”

Allison Claire Reilly, who had conduct of the case on behalf of the Crown Prosecution Service, swore an affidavit in the matter dealing

with the circumstances of the complaint. In September 2001 S told her mother that the Respondent had touched her inappropriately.

In January 2002 her father informed Barnet Social Services of that fact but said that he did not want the police to become involved

as the Respondent was in Ireland and the complainant was safe. On the 16th July 2002 the father contacted Social Services again

and requested police involvement. As a result on the 25th July 2002 the police interviewed S’s parents. S made a statement on video

link on the 2nd August 2002. On the 15th October 2002 S’s sister C made a statement by video link. On the 25th October 2002 S’s

sister S made a written statement. (Ms. Riley was cross-examined on her affidavit and from her answers she may have been in error

and C may be the mother and S the aunt of the complainant). On the 30th October 2002 the Crown Prosecution Service decided to

seek the Respondent’s extradition. At that time the Crown Prosecution Service was aware that the Respondent returned to the United

Kingdom from time to time to attend to financial matters and to attend Harefield Hospital, Middlesex, where he was receiving

treatment for a heart condition. A domestic warrant for the Respondent’s arrest was issued on the 14th January 2003 and he was

circulated as wanted on the police national computer. Progress with the European arrest warrant was delayed however for two

reasons –

1. The decision of the Supreme Court in Minister for Justice, Equality and Law Reform v Dundon [2005] 1 I.R. 261 was

awaited. The decision of the High Court was delivered on the 14th May 2004 and of the Supreme Court on the 16th March

2005.

2. A Bill to amend to the European Arrest Warrant Act 2003, section 12 (3) was pending the effect of which would be to

provide that an undertaking required under the Act might be set out in the European arrest warrant or in a separate

document an effect of which would be to avoid the necessity for written undertakings to be provided in respect of

specialty and re-extradition to a third territory and to obviate the need for such undertakings to be given by the judicial

authority. The Criminal Justice (Terrorist Offences) Bill was presented to Dáil Éireann on the 16th December 2002 and

enacted on the 8th March 2005. However the relevant amendment to the European Arrest Warrant Act 2003 was

introduced at Committee stage which was taken on the 4th November 2004. Ms. R in cross-examination said that she was

aware of the proposal to amend the 2003 Act from April/May 2004.

The points of opposition

The Respondent’s points of opposition as amended and extended relevant to the appeal were as follows

“1. It is contended on behalf of the Respondent herein that a surrender to the United Kingdom is prohibited by section

37(1)(b) of the European Arrest Warrant Act 2003 and in particular by the constitutional guarantees that the State will

vindicate the right to life and the right to bodily integrity of the Respondent pursuant to the provisions of Article 43.2 of

the Constitution. It is contended on behalf of the Respondent that his health is such that interference with the

Respondent’s personal circumstances such as would inevitably arise were his surrender to be ordered by this court would

in the view of his medical advisers present a real and significant risk to his health and indeed his very life.

2. It is contended on behalf of the Respondent that his surrender to the United Kingdom is prohibited by section 37(1)(b)

of the European Arrest Warrant Act 2003 and in particular by the constitutional guarantees of natural and constitutional

justice, due process, right to a fair trial and right to an expeditious trial in circumstances such as exist where a requesting

authority has delayed in requesting the Respondent’s surrender.

2A. The right to due process and the right to trial with due expedition of the Respondent as guaranteed by Article 38.1 of

the Constitution of Ireland and Article 5 of the European Convention on Human Rights have been breached in that:

(i) the Respondent was arrested on foot of the within European arrest warrant on the 18th April 2005

notwithstanding that it related to offences alleged to have been committed between 30th June 2000 and 1st

September 2001 which gives rise to the risk of an unfair trial due to lapse of time.

(ii) The Respondent was arrested on foot of the within warrant on the 18th April 2005 notwithstanding that the

English arrest warrant of the 14th January 2003 on which the European arrest warrant was based was issued over

two years previously which indicates prosecutorial delay.

(iii) The Respondent has suffered actual prejudice by reason of the delay in that

(a) his cardiological difficulties have markedly deteriorated during the delay period. Inter alia in June

2004 a pacemaker implant was inserted and a coronary artery by-pass grafting was re-done in

November 2004;

(b) he had returned to live permanently in Co. Kerry, Ireland, in 2003 and ceased visiting England in or

around November 2003 due to the adverse effects on his health caused by travelling to England.

(2B) The delay in the within proceedings has given rise to a breach of section 15(10) and 16(11) of the European Arrest

Warrant Act 2003 and the corresponding provisions of the Council Framework Decision referred to in the said Act. The

Respondent was arrested by An Garda Siochana on foot of the within warrant on the 18th April 2005 and on the 19th July

2005 the Applicant applied to adjourn the within proceedings because they were not ready to proceed with the hearing

which was scheduled for that date.

(2C) The proposed surrender of the Respondent in the circumstances of his ill-health is a breach of his constitutional

fundamental rights, in particular, the right to bodily integrity and his right not to have his health endangered by the

Applicant as guaranteed by Article 40.3.1. and 40.3.2 of the Constitution of Ireland and Article 3 of the European

Convention on Human Rights.”

Peart J. gave judgment on the application on the 15th November 2005. He refused to make an order for the surrender of the

Respondent on grounds both of the Respondent’s health and of delay and ordered accordingly. Against that order there is an appeal

by the Appellant and a cross-appeal by the Respondent. The cross appeal relates to an issue which arose in the course of the

hearing, that the domestic warrant appears to relate to one offence only whereas the European arrest warrant relates to three

offences.

Preliminary Issue

The Appellant contends that the learned trial judge was in error in refusing to surrender the Respondent firstly on the ground that his

surrender would violate his constitutional right to bodily integrity and secondly that his constitutional right to an expeditious trial has

been breached by delay. Before dealing with the first ground it is necessary to deal with a preliminary point raised by the Respondent.

The European Arrest Warrant Act, 2003, Section 16(12) provides for an appeal to the Supreme Court on a point of law only. The

learned trial judge made findings of fact in the following terms -

“I have concluded that the Respondent is at real risk of dying if placed in any situation of severe stress, and also that it

is reasonable to assume not only that any trial would constitute such a severely stressful situation, but also the whole

pre-trial period, including his surrender to the U.K., where he would be involved in instructing solicitor and counsel in

preparation for his trial.

I am also satisfied that the evidence shows that the Respondent’s health has in fact worsened during the period

constituting the ‘passage of time’ in this case. I am not, however, to be taken as deciding that this is something which

would have to be shown in every case. Each case would have to be considered on its own particular facts.”

The Appellant accepts that if the Respondent establishes that the very act of surrendering him to the United Kingdom to stand trial

for these very serious offences would of itself subject him to a very great risk to his life, then this is a matter which the courts could

take into account in determining whether his surrender would constitute a breach of his constitutional rights.

The Respondent contends that the finding of fact by the trial judge cannot be disturbed on appeal and that this finding together with

the concession made by the Appellant have the effect that an appeal cannot succeed. Further the Appellant’s Notice of Appeal does

not challenge the finding of fact.

The Respondent relies on the decision of the Supreme Court in Hay v O’Grady [1992] 1 I.R. 210. It was there held that this court will

not interfere with findings of fact made by a trial judge who hears oral evidence if such findings are supported by credible evidence.

The underlying reason for this is that this court does not enjoy the opportunity of seeing and hearing the witnesses and observing the

manner in which they gave evidence. This is not so where the trial is on affidavit. Where the trial is on affidavit considerable respect

must be paid to the view of a learned and experienced trial judge: McDonald v Radio Telefís Éireann [2001] 1 I.R. 355. However here,

in addition to the evidence on affidavit, one deponent Ms R was cross-examined on her affidavit filed in the matter. Neither her

affidavit nor her evidence given on cross-examination relate to the health of the Respondent and accordingly in relation to this issue

this court is in as good a position to make findings of fact as was the learned trial judge. Accordingly it is open to this court to assess

the affidavit evidence in relation to the Respondent’s health and to make findings on the same different to those made by the learned

trial judge. As to the legal consequences of findings of fact this court is at large.

The Respondent’s Health

The learned trial judge found as a fact on the evidence before him that the Respondent is at a real risk of dying if placed in any

situation of severe stress and that the pre-trial period, including his surrender, and the trial itself would constitute a severely stressful

situation. He also found that the Respondent’s health had worsened with the passage of time. He performed a balancing exercise

between the risk to the Respondent’s health and the interest of the Crown Prosecution Service on behalf of the citizens of England

and Wales to have the serious charges prosecuted and brought to trial and held that the latter interest must yield to the

Respondent’s constitutional right to bodily integrity and life itself.

The evidence before the learned trial judge consisted of an affidavit of the Respondent in which he dealt inter alia with his health and

which exhibited three medical reports - a report of Dr. N.R. Banner dated 20th February 1998, a report of Dr. Aidan Daly dated 3rd

May 2005 and a report of Dr. Peter Kearney dated 6th July 2005. Dr. Banner is a consultant in cardiology. The Respondent had a

coronary by-pass in 1988 and a heart attack in 1994. From Dr. Banner’s report it appears that consideration was given to a transplant

in February 1998 as his coronary circulation was dependent on one single vein graft. It was not felt that the Respondent’s symptoms

were severe enough to warrant the same. As to the Respondent’s condition at that date Dr. Banner reports –

“The results of his investigation did not reveal any major barrier to transplantation. We are, however, concerned about his

intermittent claudication which limits his exercise capacity and would certainly limit the amount of rehabilitation that he

would get after a transplant.

He underwent a thallium scan including thallium re-injection. This showed an extensive infero-latteral defect without any

significant redistribution or improvement after re-injection. This suggests that we did not miss any patent by-pass grafts

at the previous angiographic study. It confirms Mr Khaghani’s view that there is no role for further revasculisation here.

S M R currently has quite a good exercise capacity. He was able to exercise for eight and a half minutes on the Bruce

Protocol and achieved a peak oxygen uptake of 1.7 L or 23 ML/KG/MIN. He was limited by exertional dyspnoea.”

Dr. Aidan Daly is a general practitioner. His report discloses that the Respondent had a pacemaker inserted in June 2004. An

angiogram at that time showed severe generalised occluded coronary vessels with muscle wall dysfunction. His coronary artery by-

pass grafting was re-done in November 2004. The Respondent was on medication. After his return to Ireland his health continued to

deteriorate.

Dr. Aidan Daly’s report continues as follows –

“This man has severe and extensive CAD with heart muscle involvement. His activities are severely restricted because of

this and he needs regular review and treatment for his life condition. His prognosis remains very guarded and he is at

major risk of a sudden onset of an acute event that could lead to extremely serious consequences or death.

He has been strongly advised to attend regularly and to take his medication as prescribed. He has been instructed to

avoid all stressful situations and not to place himself in any stressful environment under any circumstances on medical

grounds. Any person or circumstance that would place this man in an ‘at risk’ situation will have to accept responsibility

for the medical and legal consequences that may arise thereof.”

The report of Dr. Peter Kearney, the Respondent’s treating consultant cardiologist, dated 6th July 2005 reads as follows –

“A brief written summary of the telephone conversation that we have just had.

S M R has very advanced coronary heart disease. He underwent coronary artery bypass grafting in 1988, suffered serial

acute myocardial infarctions in the intervening period, and when he presented to us in March 2004 complaining of limiting

angina we found very poor heart muscle pump function and severe disease of both his native vessels and bypass grafts.

He has successfully undergone repeat bypass grafting on the 24th November 2004, and had an implantable cardioverter

defibrillator inserted in the preceding June 2004.

Despite successful redo surgery he continues to have chronic impairment of heart muscle function, is at risk of developing

heart failure and his prognosis remains limited.

Were he to suffer a further acute coronary event, this might well prove catastrophic in further limiting heart muscle pump

function. He will not likely be a candidate for repeat bypass surgery at any time, and in view of his age is not likely to be

a candidate for cardiac transplantation.

Acute severe stresses, either psychological or physical may precipitate acute coronary disease, and if at all possible

should be avoided in S M R’s case.”

It is thus clear that the Respondent has chronic impairment of heart muscle function and is at risk of developing heart failure. Stress

may precipitate acute coronary disease and if at all possible should be avoided. His operations in June and September 2004 were

successful. An acute coronary event “might well prove catastrophic in limiting heart function.” I do not understand this to mean that

an acute coronary event is likely to be fatal but rather that it would result in further limiting heart muscle function.

The Constitution in Article 40.3.2 provides –

“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done,

vindicate the life, person, good name and property rights of every citizen.”

The Respondent relies on The State v Frawley [1976] I.R. 365 where Finlay P. held that the right of bodily integrity is an unspecified

constitutional right. In relation to that right at p.372 he said -

“I see no reason why the principle (of bodily integrity) should not also operate to prevent an act or omission of the

Executive which, without justification, would expose the health of a person to risk or danger… To state…that the

Executive has a duty to protect the health of persons held in custody as well as is reasonably possible in all the

circumstances of the case seems to me no more than to state in a positive manner the negative proposition which I have

accepted. Therefore, I am satisfied that such a proposition is sound in law.”

The court, I am satisfied, must balance the risk to the health of the Respondent directly related to his surrender on the one hand and

the obligations of the State under the Framework Decision.

In L.C.B. v United Kingdom [1998] 27 E.H.R. 212 the European Court of Human Rights recognised a positive obligation on a state

under Article 2(1) of the Convention to take appropriate steps to safeguard the lives of those within their jurisdiction: however the

extent of that right has not been fully explored in the jurisprudence of that court and its decisions are of no assistance in the present

circumstances.

In Carne v Assistant Garda Commissioner Patrick O’Toole, the Supreme Court, Geoghegan J., unreported 21st April 2005, this court

considered the Applicant’s health in the context of a request for extradition. The Applicant was 64 years of age and had serious

medical problems. In the previous six months while in prison awaiting extradition he had suffered two strokes. He contended that the

stress to which he would be subjected in facing trial would endanger his health, that his medical condition would be aggravated and

his health further endangered if he should be incarcerated and that his medical condition would render imprisonment oppressive. An

effect of the strokes was that he had difficulty in remembering and recollecting events that took place in the past. A medical report

exhibited by him revealed that as a result of a stroke on admission to hospital he had chest pain and weakness of the right upper and

lower limbs. A CT scan showed an infarct affecting the right parietal lobe. He had had a previous stroke in 1994. He had hardening of

the archeries. He had heart treatment in 2001. He had treatment for high blood pressure. He had extensive vascular disease. He had

coronary disease and a moderate degree of narrowing of the aortic valve. He had high blood pressure. A further report which he

exhibited disclosed a proposed operation for narrowing of the aortic valve which operation would require nineteen days in hospital and

a further period of six months for full recovery. The court held that his medical condition did not constitute an exceptional

circumstance for the purposes of the Extradition Act 1965 section 50(2)(bbb). It was held that the courts of this jurisdiction are

entitled to take judicial notice of the obvious fact that criminal trials in England are conducted in a broadly similar fashion to criminal

trials in this jurisdiction.

The evidence as to the Respondent’s health is not such as would prevent a person in similar circumstances to the Respondent being

put on trial in this jurisdiction. In the present case there is no suggestion that the Respondent’s ability to recollect events is affected.

Nor is it suggested that he would be incapable of adequately instructing his solicitor and counsel or actively participating in his trial.

The sole issue for the court is whether, adopting the words of Dr Peter Kearney, the fact that psychological or physical stresses

attending his surrender may precipitate acute coronary disease and should if at all possible be avoided outweighs the interest of the

requesting authorities in having the alleged offences prosecuted.

The position which applies in the United Kingdom in relation to persons on bail or in custody is set out in an affidavit of Adina Esekiel,

a practising barrister.

As to a person on bail she deposes as follows –

“8. A person remanded on bail has the same access to medical services as any other individual. Medical services in

England and Wales are provided free by the NHS. The NHS includes the service of a general practitioner and referral to

and treatment by a specialist.

9. The courts in England and Wales have power to impose conditions of bail. Such conditions may include a condition of

residence at a particular address. Where there is difficulty finding a suitable address, the courts have power to remand a

person to a bail hostel. Bail hostels are run by the Probation Service and provide a place for a person remanded on bail to

stay for the duration of the criminal proceedings or until further order by the court.”

Ms Esekiel further deposes that the Prison Service has an obligation to protect a prisoner’s right to life. Where a person is remanded in

custody, on admission to prison such person undergoes an examination performed by a member of the prison health care team in order

to assess the health care needs of the individual. Health services are provided by a team of health care professions within the Prison

Service and from the NHS. If a particular problem cannot be dealt with fully at a prison the prisoner may be moved to another prison

where the necessary facilities are available or may be attended by a specialist in prison or taken to a NHS hospital outside of prison.

All prisons are subject to inspection which inspections are conducted on the basis of international human rights standards. In addition

there is an independent monitoring board which monitors the welfare of prisoners.

On the basis of this affidavit and insofar as this is relevant having regard to the onus on this issue which rests on the respondent I

am satisfied that in the United Kingdom, and whether on bail or in custody, the Respondent will receive appropriate health care. While

Dr. Kearney is of opinion that stress may precipitate acute coronary disease and should be avoided I am satisfied that something

much more definite by way of threat to life would be required in this jurisdiction before the courts would involve article 40.3.2. of the

Constitution and prohibit a trial. The possibility that stress may precipitate acute coronary disease, I am satisfied, is insufficient. The

evidence before the court and in particular the medical report of Dr. Peter Kearney, the Respondent’s treating consultant, does not

justify the learned trial judge’s conclusion that the Respondent is at a real risk of dying if placed in any situation of severe stress. The

report, as I understand it, is to the effect that a further acute coronary event might well prove catastrophic in further limiting heart

muscle pump function. The report read in conjunction with the other medical reports relied upon does not justify the learned trial

judge’s conclusion that the Respondent is at a real risk of dying if placed in any situation of severe stress.

I would allow the appeal on this ground.

Delay

In referring to delay on the part of the Appellant I should make it clear that there was no delay on the part of the Minister for Justice

Equality and Law Reform. However as the Appellant in these proceedings the Minister will be fixed with responsibility for such delay as

occurred on the part of the United Kingdom police authorities and the Crown Prosecution Service. It is convenient to set out a

chronology:-

June, 2001 - August, 2002, alleged offences committed,

August, 2001, complainant disclosed allegations to her mother,

September, 2001, Respondent confronted with allegations by complainant’s mother,

January, 2002, complainant’s father disclosed allegations to Barnet Social Services but required no disclosure to police,

16th July, 2002, complainant’s father requested Barnet Social Services to inform police,

2nd August, 2002 - 25th October, 2002, police obtained statements,

30th October, 2002, Crown Prosecution Service decided to seek Respondent’s extradition,

14th January, 2003, domestic warrant issued,

17th February, 2005, European arrest warrant issued.

The explanation for the delay between the decision to extradite the Respondent and the issue of the European arrest warrant is as

follows. A prerequisite to the issue of the European arrest warrant is the issue of a domestic warrant. The decision to extradite was

made on the 30th October 2002. The domestic warrant was issued on the 14th January, 2003. Thereafter there was a delay until the

17th February, 2005, when the European arrest warrant was issued. The explanation for this delay is given in an affidavit of Alison

Claire Reilly sworn on the 28th September, 2005, in the following terms -

“Unfortunately, at this particular time the case of Dundon, was awaiting determination before the Irish courts and the

Irish authorities were also amending their European Arrest Warrant Act, 2003, to avoid the need for written undertakings

to be provided in respect of specialty and re-extradition to a third territory and thereby facilitate extradition proceedings

between Ireland and her European Union partners.”

The issue in The Minister for Justice Equality and Law Reform v. Dundon, Supreme Court, 16th March 2005 unreported, was whether

the European Arrest Warrant Act 2003 required undertakings to be given personally by the judge or court issuing the European arrest

warrant: it was held by both the High Court and the Supreme Court that it did not. Thereafter the European arrest warrant in this

case issued on the 18th April, 2005. The evidence of Ms. Riley on cross-examination is that the European arrest warrant was prepared

in anticipation of the decision of the Supreme Court and sent for signature immediately after the decision.

The Criminal Justice (Terrorist Offences) Bill, was presented to the Dáil on the 16th December, 2002, but the provisions thereof

amending the European Arrest Warrant Act, 2003, were not introduced until the Committee stage on the 4th November, 2004. The

Act was passed on the 8th March 2005. There is no information available as to when the Crown Prosecution Service became aware of

the intention to introduce the amendments but Ms Riley in evidence on cross-examination said that she was made aware of the

intention by a fellow lawyer in the Crown Prosecution Service prior to May 2004.

On this issue it was further argued on behalf of the Respondent that the delay was the result of unfair and oppressive conduct on the

part of the Appellant in that the delay was incurred as a result of an attempt by the Applicant to procure a procedural benefit

resulting from the decision of the Supreme Court in Minister for Justice, Equality and Law Reform v Dundon and the amendment of the

European Arrest Warrant Act 2003. The learned trial judge rejected this argument.

The law as to delay in the context of a European arrest warrant is now well settled. In Minister for Justice Equality and Law Reform v

Stapleton, Supreme Court 26th July 2007 Fennelly J., the central issue on the appeal was 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. In that case there had been considerable

prosecutorial delay and prejudice. The offences alleged to have been committed occurred between 1978 and 1982 and the European

arrest warrant was issued only on the 20th July 2005. In the interim three witnesses relevant to the defence had died and much of

the documentation required by the defence was no longer available. The learned High Court judge found that there were possible

differences between the level of protection to which the Respondent would be entitled in England and what would be available to him

in this jurisdiction. There was not, he held, the same regard for a free standing right to an expeditious trial even in the absence of

actual prejudice. In the course of his judgment Fennelly J. said:-

“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 the 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.”

In Minister for Justice Equality and Law Reform v Brennan [2007] I.E.S.C. 21 Murray C.J. said:-

“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.”

In allowing the Minister’s appeal in Minister for Justice, Equality and Law Reform v Stapleton, Fennelly J. said:-

“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 may not necessarily be aware. I would echo and adopt the words of

Simon Brown L.J. in the Woodcock (v Government of New Zealand) [2004] 1 W.L.R. 1979)) 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 that the learned trial judge was right to refuse the make the order for

surrender on the grounds of delay.”

In short the issue of delay is one for consideration by the courts of the United Kingdom.

As to whether the circumstances that the delay in this case was incurred due to the Appellant awaiting the decision in Dundon and

the amendment to the European Arrest Warrant Act 2003 should lead to a refusal to surrender I am satisfied that they do not. While

the Framework Decision in Article 17.1 provides that a European arrest warrant shall be dealt with as a matter of urgency it is clear

from the decision in Dundon v Governor of Clover Hill [2006] 1 I.L.R.M. 321 that this requirement is directed to internal discipline

within the Member States and is not intended to confer individual rights. The conduct complained of does not amount to an abuse of

process. Among the objectives of the Framework Decision which appear from the recitals in the same are to remove complexity and

the potential for delay in extradition procedures. It was consonant with these objectives to await clarification of Irish law and if

appropriate simplification of the same. To move in advance of that would most likely have resulted in surrender being delayed pending

the outcome of Dundon or the passing of the amending legislation. In any event this issue I am satisfied is one for consideration by

the Courts of the United Kingdom in the context of their consideration of delay as a whole.

The Cross Appeal

On behalf of the Respondent it is submitted that he ought not to be surrendered as the domestic warrant on foot of which the

European arrest warrant was issued refers to one offence only whereas the European arrest warrant refers to three offences. The

basis of this submission is that the European arrest warrant described the offence at paragraph (e) as “indecent assault on a female”

and goes on to say that the European arrest warrant related to three offences and gives particulars of each. At the hearing there

was evidence available as to the law in the requesting State as to domestic warrants and the European arrest warrant. The European

arrest warrant was issued under the United Kingdom Extradition Act 2003 section 3(2) which requires a domestic warrant to have

been issued in respect of a person before a European arrest warrant is issued in respect of that person. The domestic warrant must

be in relation to an extradition offence. The European arrest warrant, if it is in relation to more than one extradition offence, must

specify those offences. On the evidence before him the learned trial judge was satisfied, and was entitled to be satisfied, that the

domestic warrant was valid under the law of the requesting state.

As to the law in this jurisdiction the European Arrest Warrant Act 2003 section 11 as amended by the Criminal Justice (Terrorist

Offences) Act 2005 section 72 provides as follows –

“(1A) Subject to subsection (2A), a European arrest warrant shall specify –

(d) the offence to which the European arrest warrant relates, including the nature and classification under the law

of the issuing state of the offence concerned;

(e) that a conviction, sentence or detention order is immediately enforceable against the person, or that a warrant

for his or her arrest, or other order of a judicial authority in the issuing state having the same effect, has been

issued in respect of the offence;

(f) the circumstances in which the offence was committed or is alleged to have been committed, including the time

and place of its commission or alleged commission and the degree of involvement or alleged degree of involvement

of the person in the commission of the offence.”

This mirrors the requirements of the Framework Decision, Article 8(1)(c)(d) and (f). The form of a European arrest warrant is

contained in the Annex to the Framework Decision. At paragraph (b) details are required of the domestic warrant and this is satisfied

in this case by furnishing the information that the warrant was issued at Hendon Magistrates Court on the 14th January 2003. Section

11(1A)(e) of the Act and Article 8(1)(f) of the Framework Decision are likewise satisfied.

Section 11(1A)(d) mirrors Article 8(1)(d) of the Framework Decision which requires a European arrest warrant to contain the nature

and legal classification of the offence “particularly in respect of Article 2”. Article 2 paragraph 2 lists offences which, provided they

are punishable by a custodial sentence or detention for a maximum period of at least three years, do not require verification of double

criminality. The form of European arrest warrant makes clear that what is required is a statement of the offence e.g. rape, arson or

murder. The purpose is to disclose whether the offence comes within Article 2 paragraph 2 or Article 2 paragraph 4. Article 2

paragraph 4 provides that for offences other than those listed in paragraph 2 surrender may be subject to a condition that the acts

for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State. The

latter is the case here. The information furnished in the European arrest warrant at (e) in this case is entirely appropriate. The

offence is described as follows:

“Indecent assault on a female – 10 years imprisonment”

The requirements of section 11(1)(d) are satisfied.

The European arrest warrant in this case at paragraph (e) goes on to specify the number of offences as three and sets out the

conduct constituting each of the three offences of indecent assault on a female for the purposes of Section 11(1A)(f) and Article 8

paragraph 1(e). The provisions of the United Kingdom Sexual Offences Act 1956 pursuant to which it is proposed to charge the

Respondent are set out in full with further information as to the constituents of the offence.

I am satisfied that section 11(1A)(d),(e) and (f) each use the word “offence” in the same sense. There is a presumption that the

same word bears the same meaning throughout the same statute: Coward v Motor Insurers Bureau [1965] Ch. 113. The meaning

which I have ascribed to “offence” in relation to Section 11(1A)(d) of the Act is the meaning for the purposes of section 11(1A)(e)

and (f) also. Accordingly section 11(1A)(e) requires only that a warrant has been issued for the offence described – indecent assault

on a female – and that there is no requirement to provide further details of the domestic warrant. Having regard to the decision of

this court in the Minister for Justice Equality and Law Reform v Altaravicius, the mere assertion that there was a defect or that there

might be a defect in the domestic warrant is not sufficient to put the court on enquiry.

For these reasons I would dismiss the cross-appeal.

Disposition

I would allow the appeal and dismiss the cross-appeal.