Supreme Court dismisses appeal against surrender order where underlying domestic warrant was not spent due to prior arrest.

THE SUPREME COURT

Appeal No. 344/08

Murray C.J.

Fennelly J.

Finnegan J.

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003

BETWEEN

MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

APPLICANT/RESPONDENT

and

MICHÉAL Ó FALLÚIN (otherwise MICHAEL FALLON)

RESPONDENT/APPELLANT

Judgment of Mr Justice Finnegan delivered on the 19th day of May 2010

The appellant appeals against an order of the High Court (Peart J.) of the 8th October 2008 whereby it was ordered

pursuant to section 16 of the European Arrest Warrant Act 2003 that the appellant be surrendered to the United Kingdom.

The order was made on foot of a European arrest warrant issued on the 17th April 2007. The underlying arrest warrant

issued on the 16th December 2003 and relates to a single offence described in the warrant as follows:-

“Michael Anthony Fallon also known as Michael Fallon also known as Michéal Anthony Ó Fallúin between the 14th

day of September 1998 and the 8th day of October 1999 within the jurisdiction of the Central Criminal Court for

England and Wales conspired together with Philip Ryall and David Alexander Fallon to defraud the United Kingdom

Passport Agency by the provision of false passport applications contrary to common law.”

The United Kingdom had previously sought to extradite the appellant and had also issued a European arrest warrant in

respect of the same offence. An extradition request under Part III of the Extradition Act 1965 was made and the warrant

was endorsed on the 2nd January 2004. The appellant was arrested on foot of the endorsed warrant on the 8th January

2004. By order of the High Court (Peart J.) of the 22nd June 2004 the proceedings under Part III of the Extradition Act

1965 were struck out on consent having regard to the decision in O’Rourke v Governor of Clover Hill Prison (2004) 2

I.R. 456.

On the 21st June 2004 a European arrest warrant in respect of the appellant and in respect of the offence was issued

from Bow Street Magistrates Court. The European arrest warrant was endorsed for execution and the appellant was

arrested on foot of the same on the 26th July 2005. Points of objection raised by the appellant resulted in three written

judgments of the High Court (Finlay Geoghegan J.) and on the 26th October 2005 an order was made for the surrender of

the appellant. On the same date a committal warrant issued pursuant to section 16 of the European Arrest Warrant Act

2003. By notice of appeal dated the 4th November 2005 the appellant appealed the order of surrender and which notice

of appeal was filed one day before the expiry of the fifteen day period specified in section 16(3) of the European Arrest

Warrant Act 2003. As a consequence the appellant was not surrendered within the period of ten days specified in section

16(5) of the Act. On the 23rd November 2005 the appellant sought an enquiry into the legality of his detention pursuant

to Article 40.4.2 of the Constitution. Following an enquiry, the High Court (Peart J.) refused to order his release. The

appellant appealed that decision to the Supreme Court. Shortly before the hearing of the appeal the appellant withdrew

his appeal against the order of the High Court of the 26th October 2005 directing his surrender. His appeal against the

order of the High Court made on his application pursuant to Article 40.4.2 was heard on the 18th January 2007. Judgment

was delivered on the 3rd May 2007. The appellant was successful and his release was directed: as the appellant had not

been surrendered within the period of ten days specified in section 16(5) of the Act his release was required by section

16(7) of the Act. On the 17th April 2007 the European arrest warrant of the 25th June 2004 was withdrawn and a further

European arrest warrant issued and it is that warrant which is the subject matter of this appeal.

The European arrest warrant of the 17th April 2007 was endorsed by the High Court on the 4th July 2007 and on foot of

the same the appellant was arrested on the 13th July 2007. The appellant filed grounds of objection. Following a hearing

on the 8th October 2008 the High Court (Peart J.) ordered his surrender to the United Kingdom. Against the judgment and

order of Peart J. the appellant appeals to this court.

Notice of Appeal

The Notice of Appeal raises twenty distinct grounds not all of which were pursued before this court. The appellant

abandoned some grounds and consolidated the remaining grounds into four grounds as follows:-

1. The time limits provided for in the Framework Decision Article 23 and the European Arrest Warrant Act 2003 section

16(5) and 16(7) having expired, by reason of the appellant not having been surrendered on foot of the European arrest

warrant of the 21st June 2004 the appellant cannot now be surrendered on foot of the European arrest warrant of the

17th April 2007.

2. Article 4.7 of the Framework Decision confers a discretion to refuse surrender which discretion ought to be exercised in

favour of the appellant and his surrender refused.

3. Having regard to the comity of courts, the principle of mutual recognition referred to in Recital (6) of the Framework

Decision and the high level of confidence between Member States upon which the European arrest warrant is based

according to recital (10) of the Framework Decision and having regard to the conduct of the United Kingdom authorities

surrender ought to be refused.

4. The underlying warrant is spent. There being no underlying warrant the European arrest warrant issued on the 17th

April 2007 was not duly issued as required by the European Arrest Warrant Act 2003 section 10 and the appellant may not

be surrendered on foot of the same.

I propose to deal with each of these four grounds in turn.

1. The time limits provided for in the Framework Decision Article 23 and the European Arrest Warrant Act 2003 section

16(5) and 16(7) having expired, by reason of the appellant not having been surrendered on foot of the European arrest

warrant of the 21st June the appellant cannot now be surrendered on foot of the European Arrest Warrant of the 17th

April 2007.

In short the appellant submits that the European arrest warrant of the 17th April 2007 being the third attempt to obtain

the return of the appellant to stand trial is an abuse of process and that his surrender on foot of the same would be

oppressive and unfair. Analogy is drawn with repeated attempts to convict at criminal law: it is submitted that the

proceedings on foot of the European arrest warrant are a step in the criminal process and so constitute part of a

repeated attempt to secure the conviction of the appellant. Further it is submitted that the three judgments of the High

Court on the European arrest warrant of the 17th April 2007 and the judgment of the Supreme Court on the application

under Article 40.4.2 of the Constitution create estoppels or give rise to res judicita.

No argument was submitted that it was not open to the authorities in the United Kingdom to withdraw the European

arrest warrant of the 21st June 2004 and issue the European arrest warrant of the 17th April 2007 in principle: it is

however argued that it ought not to have been done in the present case. It is, of course, part of our jurisprudence that

there should not be repeated attempts to procure a conviction: E.S. .v. Judges of the Court Circuit Court and the

Director of Public Prosecutions [2008] I.E.S.C. 37. However proceedings under the European Arrest Warrant Acts are

not criminal proceedings and the same principles will not apply. In the present case the attempted extradition was

discontinued without any decision being made. Again the European arrest warrant of the 21st June 2004 resulted in an

order for the appellant’s surrender: all issues of law raised by him were determined against him and an order for his

surrender made. His appeal against the order of the High Court was withdrawn. His surrender on foot of that European

arrest warrant did not occur solely because of the failure to effect his surrender within the times stipulated in the Acts:

again there was no decision on any issue which could create an estoppel in the appellant’s favour or give rise to res

judicata. Counsel for the appellant did not draw to the court’s attention any issue either in the three judgments delivered

in the High Court on the European arrest warrant of the 21st June 2004 or in the judgment in the Supreme Court on the

application under Article 40.4.2 which could conceivably give rise to an estoppel or issues of res judicata. I am satisfied

that neither estoppel nor res judicata arises.

Other than to assert that it was not accepted that it was open to the United Kingdom authorities to issue the second

European arrest warrant on the 17th April 2007, no argument was advanced that it was impermissible to do so. The form

of European arrest warrant is set out in the annex to the Framework Decision. What is envisaged by the Framework

Decision and the European Arrest Warrant Acts is that upon a properly completed European Arrest Warrant being

presented it should in general not be necessary to go behind the same, all relevant information being before the court:

Minister for Justice Equality and Law Reform v Altaravicius [2006] 3 I.R. 148. The Framework Decision envisages,

instead of extradition, a system of surrender between judicial authorities based on a high level of confidence between

Member States and the mutual recognition of judicial decisions. In the present case there exists a domestic warrant of

arrest for the purpose of conducting a criminal prosecution of the appellant. The principle of mutual recognition applies to

that domestic warrant and it should be executed on that basis. This is, of course, subject to the issues raised by the

appellant at grounds 2, 3 and 4 set out above: however if unsuccessful on those grounds there is no reason why

surrender should not be effected simply because the European arrest warrant is the second issued in respect of the same

domestic warrant.

Insofar as delay has been incurred by reason of the time taken for proceedings on foot of the extradition request and the

earlier European arrest warrant in the High Court and in the Supreme Court and on the current warrant again in both

courts it has not been suggested that by reason of such delay a fair trial could not be obtained but rather that the delay

was oppressive of the appellant. The appellant was, of course, entitled to challenge both European arrest warrants:

however in considering delay (should it be relevant) time taken in prosecuting court proceedings should be discounted.

In these circumstances I am satisfied that in bringing a second European arrest warrant the United Kingdom authorities

cannot be said to be acting in such a manner as would engage section 37(1) of the Act of 2003 and in particular cannot

be said to be acting in breach of the Constitution or the European Convention on Human Rights.

2. Article 4.7 of the Framework Decision confers discretion to refuse surrender which discretion ought to be

exercised in favour of the appellant and his surrender refused.

Article 4 of the Framework Decision insofar as relevant to the appellant’s submission provides as follows:-

“The executing judicial authority may refuse to execute the European Arrest Warrant:

7. Where the European arrest warrant relates to offences which:

(a) are regarded by the law of the executing Member State as having been committed in whole

or in part in the territory of the executing Member State or in a place treated as such; or

(b) have been committed outside the territory of the issuing Member State and the law of the

executing Member State does not allow prosecution for the same offences when committed

outside its territory.”

The European arrest warrant of the 17th April 2007 at (e) sets out a description of the circumstances in which the

offence the subject matter of the warrant was committed. From this setting out it is clear that part of the conduct

constituting the offence took place in Ireland while the remainder of the conduct took place within the United Kingdom.

On behalf of the appellant it is submitted that as a consequence there is a discretion to refuse to execute the European

arrest warrant as the offence falls within Article 4.7(a). The learned trial judge failed to appreciate the existence of that

discretion.

The Framework Decision was given effect in Irish law by the European Arrest Warrant Act 2003. Article 4.7 of the

Framework Decision confers upon Members States a discretion in implementing the Framework Decision in domestic

legislation to provide in the circumstances therein set out that there shall be no surrender. It is left to the Member States

to decide whether they want to implement Article 4.7 and, if so, as an optional or as a mandatory ground of non-

execution. In relation to Article 4.7 the Oireachtas enacted section 42 of the 2003 Act as amended by the 2005 Act. In

these circumstances Article 4.7 has no application outside the circumstances expressly provided for in section 42 as

amended. Section 42 as amended by the Criminal Justice (Terrorist Offences) Act 2005 section 82 provides as follows:-

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

(a) the Director of Public Prosecutions or the Attorney General is considering, but has not yet decided,

whether to bring proceedings against the person for an offence, or

(b) proceedings have been brought in the State against the person for an offence consisting of an act

or omission of which the offence specified in the European arrest warrant issued in respect of him or

her consists in whole or in part.”

The Director of Public Prosecutions is not considering the bringing of proceedings against the respondent for an offence.

The offence of conspiracy to defraud the United Kingdom Passport Authority could not be prosecuted in Ireland. Section

42 has no application to the appellant: it is not suggested that consideration is being given to bringing proceedings

against the appellant for an offence and no proceedings have been brought in the State against him for an offence

consisting of an act or omission of which the offence specified in the European arrest warrant issued in respect of him

consists in whole or in part.

The appellant fails on this ground.

3. Having regard to the comity of courts the principle of mutual recognition referred to in recital (6) of the

Framework Decision and the high level of confidence between Member States upon which the European arrest

warrant is based according to recital (10) of the Framework Decision and having regard to the conduct of the

United Kingdom authority surrender ought to be refused

It is submitted on behalf of the appellant that by issuing the European arrest warrant on the 17th April 2007 the City of

Westminster Magistrates Court failed to accord mutual recognition to the courts of Ireland and in particular to the

Supreme Court. Judgment on the appellant’s appeal in relation to his Article 40.4.2 application was pending before the

Supreme Court on that date and in issuing the European arrest warrant there was a breach of the principle of mutual

recognition and the comity of courts. For this reason the courts of Ireland should not surrender the appellant. Further, a

Magistrates Court in England has set at nought a decision of the Supreme Court by the simple expedient of withdrawing a

European arrest warrant and issuing a fresh one.

This submission ignores the effect of the order of the High Court made on the European arrest warrant of the 21st June

2004 to the effect that the appellant should be surrendered. While the order for his surrender was appealed the appellant

withdrew that appeal. The circumstances in which his surrender did not occur have been set out earlier in this judgment.

The decision of the Supreme Court relates solely to the failure to effect the surrender of the appellant within the time

limits set out in the European Arrest Warrant Acts and his release was ordered on that account: it has nothing to say as

to the legality of issuing a further European arrest warrant.

The obligation of the courts under the European Arrest Warrant Acts is to surrender on foot of a European arrest warrant

where there is compliance with the Acts. The Acts do not confer on the courts a general discretionary power to refuse to

surrender and neither does the Framework Decision envisage such a power. It is simply not the case that the Magistrates

Court in England in issuing the European arrest warrant of the 17th April 2007 in advance of the Supreme Court’s decision

on the appellant’s Article 40.4.2. appeal had set the Supreme Court’s decision at nought. The Supreme Court ordered the

appellant’s release as required by the European Arrest Warrant Act 2003 section 16(7) and the appellant was duly

released. A fresh European arrest warrant was issued and the obligation on the courts of this jurisdiction in relation to the

same is that imposed by the European Arrest Warrant Acts, that is to order surrender subject to compliance with the

European Arrest Warrant Acts.

4. The underlying warrant is spent. There being no underlying warrant the European Arrest Warrant issued on

the 17th April 2007 was not duly issued as required by the European Arrest Warrant Act 2003 section 10 and the

appellant may not be surrendered on foot of the same.

The European Arrest Warrant Act 2003 section 10 provides as follows:-

“10. - Where a judicial authority in the issuing State duly issues a European arrest warrant in respect of a person –

(a) against whom that State intends to bring proceedings for an offence to which the European

arrest warrant relates,

...that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be

arrested and surrendered to the issuing State.”

On behalf of the appellant it is submitted that the warrant in this case was not duly issued as the underlying warrant is

spent. While it may at times be necessary to consider the underlying domestic warrant in terms of the law of the issuing

State in general the courts of this jurisdiction are concerned with the European arrest warrant being duly issued in

accordance with the European Arrest Warrant Acts. If the European arrest warrant is in the prescribed form and contains

the prescribed information this will, save in exceptional cases, be sufficient for an order of surrender to be made. It is to

be assumed that the statement of facts contained in the European arrest warrant is a truthful statement of the facts in

the case: Minister for Justice Equality and Law Reform v Altarvicious.

Before the learned High Court judge there were a number of affidavits as to the law of England and Wales as follows:-

1. Affidavit of Peter Caldwell, a barrister qualified in England and Wales sworn on the 30th August 2005 on behalf of the

appellant.

2. Affidavit of Clive Victor Nicholls, a Queens Counsel at the Bar of England and Wales sworn on behalf of the respondent.

Both these affidavits were sworn in the proceedings relating to the European arrest warrant of the 21st June 2004.

3. Affidavit of Peter Caldwell a barrister qualified in England and Wales sworn on behalf of the respondent on the 28th

November 2007.

4. Affidavit of Melanie Cumberland, a barrister qualified in England and Wales on behalf of the respondent sworn on the

21st February 2008.

5. Affidavit of Melanie Cumber, a barrister qualified in England and Wales on behalf of the respondent sworn on the 27th

May 2008.

The several deponents were not cross-examined.

It is quite clear from these affidavits that there was before the learned High Court judge credible evidence upon which he

could conclude that the underlying domestic warrant had not been executed and was not spent. This being so it is not

the function of this court to re-try the issues of fact determined by the High Court but merely to review the evidence

before the learned High Court judge in order to determine whether he erred in law in concluding that the underlying

domestic warrant was not spent. This court will not review the weight of the evidence. The sole question is whether

there was before the learned High Court judge evidence which entitled him to find as he did. Clearly there was such

evidence. Clive Victor Nicholls Q.C. in his affidavit sets out the terms of the underlying warrant:-

“You, the constables of the Metropolitan Police are hereby required to arrest the accused and to bring the

accused before the above Magistrates Court immediately.”

The warrant is not addressed to nor does it direct any other persons e.g. the Garda Siochána, to effect an arrest. On

foot of the European arrest warrant of 21st June 2004 the appellant was not delivered to the Metropolitan Police and was

not brought before the Magistrates Court. The domestic English warrant is not “executed” unless and until it is executed

in England and Wales by the Constables of the Metropolitan Police to whom it is addressed., In the proceedings relating to

the European arrest warrant of the 17th April 2007 Finlay Geoghegan J. held that the underlying domestic warrant was

not spent by reason of the arrest of the appellant by the Garda Siochána under Part III of the Extradition Act 1965: the

appellant’s appeal against this finding was not prosecuted. That finding was on the evidence contained in the affidavits

mentioned at 1 and 2 above. The affidavits at 3, 4 and 5 above were considered by the learned trial judge in the present

proceedings together with the affidavits at 1 and 2 above and on the basis of all five affidavits the conclusion he reached

was that the underlying warrant was not spent by reason of the arrest of the applicant by the Garda Siochána on foot of

the European arrest warrant of the 21st June 2004. That finding of fact (and foreign law is of course a fact) made by the

trial judge is supported by credible evidence. The learned trial judge had before him sufficient evidence to conclude that

the domestic warrant was not spent. Having carefully considered all five affidavits, had it been necessary to do so, I

would have no hesitation in reaching the same conclusion.

For the reasons aforesaid the applicant fails on this ground.

Conclusion

For the reasons hereinbefore set out I would dismiss the appeal and affirm the order of the High Court.