Supreme Court dismisses appeal on surrender refusal, holding EU law requires conformity interpretation of domestic surrender provisions.

THE SUPREME COURT

[Appeal No. 135/12]

Denham C.J.

Murray J.

O’Donnell J.

Clarke J.

MacMenamin J.

Between/

MINISTER FOR JUSTICE & EQUALITY

Applicant/Appellant

and

ARKADIUSZ TOKARSKI

Respondent

Judgment of Murray, J. delivered on the 6th day of December, 2012

This is an appeal by the Minister against the refusal of the High Court to grant an order for the surrender of the respondent to the

Republic of Poland pursuant to the provisions of the European Arrest Warrant Act, 2003, as amended,(hereinafter the Act of 2003).

There is no right of appeal against an order of the High Court in a case such as this unless the court that makes the order certifies,

pursuant to s.16 of the Act of 2003, as amended, that its own decision involves a point of law of exceptional public importance and

that it is desirable in the public interest that an appeal against that decision should be taken to this Court. This is a severe limitation

on the scope of judicial remedies available to those seeking to assert rights in matters arising within the scope of European Union law.

Unlike at least some of the other areas of the law where there are similar restrictions on an appeal, such as in asylum and planning

and development law, there is no prior independent administrative process. The process in those other areas is quasi judicial and

intended to be a complete and definitive determination of the interests of the parties concerned, subject only to judicial review of

that process. Although even then it is the court which has made the decision that decides whether there should be an appeal from its

own decision. In matters arising under the European Arrest Warrant Act there is just one judicial determination at first instance with

no right of appeal, as such, except insofar as it is granted by the same court on the basis of the criteria set out in section 16. In this

instance the learned High Court judge has, it would seem, and in my view correctly, taken a broad approach to the interpretation of

that section and granted leave to appeal even though, since s.45 has been amended by the European Arrest Warrant (Application to

Third Countries and Amendment) and Extradition Act, 2012, the issue is unlikely to arise again.

The point of law certified for the purposes of appeal to this Court by the High Court in this case was as follows:

“To what extent, if any, does section 45 of the European Arrest Warrant Act 2003, as amended, (which refers to a

person who was “not present when he or she was tried for and convicted of the offence specified in the European arrest

warrant”) apply in circumstances where the domestic law of the issuing State allows for plea bargaining and the issue of

the accused’s guilt has been agreed between an accused person and the Police/State Prosecutor in advance of the

matter coming before any court?”

Subsequently a Notice of Appeal was lodged by the Minister setting out thirteen grounds of appeal, virtually all of which related to the

point of law which had been certified by the learned trial judge. One ground of appeal asserted that the learned trial judge erred in

law in refusing to accede to an application on behalf of the Minister to seek further information from the issuing state pursuant to

s.20(1) of the Act of 2003. In fact, subsequent to the High Court decision and before this appeal came up for hearing, the Minister

sought and obtained further information and material from the Polish authorities and then brought a Motion seeking liberty to place

that material before this Court as part of the appeal. That Motion was dealt with by this Court at the beginning of the hearing of the

appeal and the Court decided to admit the material de bene esse.

That further material does not significantly add to the facts of the case as found in the High Court, although it bore out the narrative

according to which the respondent, on two separate occasions when interrogated by the police in Poland, had admitted or “pleaded”

to the offences which were alleged against him, and agreed to a penalty by way of imprisonment which could be imposed on him.

That narrative is referred to in greater detail below, but the Court, in admitting the material de bene esse, did not have to address

any particular issues concerning the admissibility of the material in question or what the material may be deemed to prove.

Accordingly, the only issue before the Court in the appeal is that referred to in the certificate of the High Court.

It may be convenient, at this point, to specify that the net issue in this case arises by virtue of the fact that the respondent was

convicted and sentenced by a Polish court on the 1st December, 2009. This was the first and only occasion on which the criminal

proceedings were dealt with by a court in Poland. The respondent was not present in court, nor was he legally represented. For the

reason that the respondent had admitted or “pleaded,” as it is put in the English translation of the Polish documentation, to the

offences and agreed to the prison sentence which could be imposed, in the course of interrogation conducted by the police and prior

to the preparation of an indictment, Polish law did not render the respondent’s subsequent conviction and sentence to be one which

is “in default”, as it was put. It should be noted, however, that the fact that the Polish court’s decision was given in absentia,

without proper notification to the respondent within the meaning of s.45 of the Act of 2003, is not at issue between the parties.

In general terms the Minister does argue that, in the light of Polish criminal procedures, and in particular the “plea bargaining” that he

engaged in, the respondent cannot maintain that he was “tried for and convicted of an offence” before the Polish court within the

meaning of s.45(a) of the Act of 2003, and therefore the finding of the learned trial judge that he had been tried and convicted in

absentia was wrong in law.

Again stating the position of the respondent in general terms, it is his contention that, as the High Court concluded, there was

objectively speaking a trial and conviction within the meaning of s.45 which took place in his absence. Accordingly, he submits that

he was objectively, and in law, “tried and convicted” within the meaning of s.45(a) of the Act of 2003 and therefore the High Court,

in finding that he had been tried and convicted in absentia, properly refused to make an order for surrender by reason of the

provisions of section 45.

Before setting out in detail the background facts and circumstances surrounding this particular case, I think it appropriate at this

point to refer to the terms of s.45 of the Act of 2003 in order to indicate more precisely the nature and ambit of the question of law

which is referred to in the certificate of the High Court. One should note that since the proceedings before the High Court s.45 of the

Act of 2003 has been amended. It is not however in dispute between the parties to the appeal that it is s.45 as it then stood which

remains the relevant and applicable provision to this case.

Section 45 of the Act of 2003

Section 45 of the Act of 2003, as substituted by s.20 of the Criminal Justice (Miscellaneous Provisions) Act, 2009, provides as

follows:

“45.— A person shall not be surrendered under this Act if—

(a) he or she was not present when he or she was tried for and convicted of the offence specified in

the European arrest warrant, and

(b)(i) he or she was not notified of the time when, and place at which, he or she would be tried for the

offence, or

(ii) he or she was not permitted to attend the trial in respect of the offence concerned, unless

the issuing judicial authority gives an undertaking in writing that the person will, upon being

surrendered -

(I) be retried for that offence or be given the opportunity of a retrial in respect of that offence,

(II) be notified of the time when, and place at which any retrial in respect of the offence

concerned will take place, and

(III) be permitted to be present when any such retrial takes place.”

The remaining sub-paragraph of s.45 is not relevant to the issue in this case.

Framework Decision on the European Arrest Warrant

It is not in issue that s.45 of the Act of 2003 should be interpreted in the light of article 5(1) of the Council Framework Decision on

European Arrest Warrant (2002/584/JHA) (hereinafter, the Framework decision), since as permitted by article 5, the section

introduces a precondition to the making of an order for surrender on foot of an European Arrest Warrant (hereinafter, EAW). The

relevant portion of article 5 provides as follows:

“The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing

Member State, be subject to the following conditions:

1. where the European arrest warrant has been issued for the purposes of executing a sentence or a detention

order imposed by a decision rendered in absentia and if the person concerned has not been summoned in person

or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia,

surrender may be subject to the condition that the issuing judicial authority gives an assurance deemed adequate

to guarantee the person who is the subject of the European arrest warrant that he or she will have an opportunity

to apply for a retrial of the case in the issuing Member State and to be present at the judgment[.]” (emphasis

added)

There are two points to be noted concerning the issue which has arisen in this appeal under s.45 of the Act of 2003. First, it is not

contended by the Minister that the respondent had been notified of the time and place of his trial within the meaning of s.45, or that

the proviso at (b)(i) above is otherwise material. Similarly, no issue has been raised regarding section 45(b)(ii) of the Act of 2003.

Second, the issuing judicial authority in Poland has not given an undertaking that upon surrender that the respondent would be retried

or given an opportunity of a retrial in respect of the offences in question. This appears to be because Polish law does not permit an

application to be made for a retrial in a case, such as this, in which the conviction and sentence of the accused has occurred in

circumstances where he has expressly admitted or “pleaded” guilty to the offences and agreed the penalty to be imposed during the

course of his interrogation and prior to the formal preparation of the indictment.

Accordingly, it is common case that if the Court were to conclude that the respondent was “tried for and convicted of” the offences

in question before the Polish court the absence of such an undertaking means that his surrender cannot be ordered.

Background

The European Arrest Warrant

The EAW in this case seeks the return of the respondent to Poland for the purpose of serving a prison sentence of 1 year and 2

months, being an aggregate sentence imposed upon him consequent on his conviction by the Polish court on the 1st December, 2009,

for breaking and entering a residential building and assault and battery causing actual harm, committed on the occasion of the

unlawful entry. (No issue arises in this appeal regarding the aggregate nature of the sentence.)

Certain background circumstances pertaining to the conviction and sentence of the respondent are given at paragraph F of the

warrant. The relevant parts are as follows:

“The convict knew the contents of the charges, he pleaded guilty to committing the offences he was accused of and he

voluntarily accepted the sentence imposed on him that was earlier agreed on between him and the prosecutor. The

convict was informed that if he stayed abroad his statutory duty would be to notify his address for service in Poland. In

the event of failing to do so, a letter from the court posted to the last known address in Poland (or if there is no such

address - the letter should be attached to the files of the case) would be deemed delivered. Additionally, the requested

person was informed about his obligation to notify the authority in charge of the proceedings about any change of his

address of residence or stay lasting longer than 7 days. This information was delivered to the convict in writing and he

confirmed the receipt of the same by his own signature.”

Further information provided by the Polish Court prior to High Court hearing

The respondent lodged in the High Court objections to his surrender, inter alia, on the grounds that his surrender be refused by virtue

of s.45 of the Act of 2003. It appears that the Department of Justice then sought, prior to the High Court hearing, further information

from the requesting judicial authority. Further information concerning the circumstances of the arrest, charge and conviction of the

respondent was subsequently provided by the requesting judicial authority by letter dated the 22nd February, 2012.

The letter provides an explanation regarding Polish criminal procedure in the following terms:

“The Polish criminal procedure involves two stages: preliminary proceedings and a lawsuit. The preliminary proceedings

involve collecting evidence. These proceedings are carried out by a state prosecutor or by the police authorities. In the

event they are carried out by the police authorities the latter are supervised by a state prosecutor who makes all vital

legal decisions thereto. The preliminary proceedings last approximately from several days to several months, depending

on the complexity of the case. As long as the preliminary proceedings provide sufficient grounds for indictment, an

indictment is drawn up and only then is the case submitted before court. At this point the case enters the lawsuit stage.

Pursuant to the above, an offender usually appears before court after several days or several months following his

committing an offence.” (emphasis added)

The letter also details that the first interrogation, the term used in the letter, of the respondent was conducted on the 28th July,

2009, by the police. Prior to his interrogation he had been informed of his right to be assisted by a defence counsel, but he did not

use that right.

A second interrogation was conducted on the 12th October, 2009, again by the police. On that occasion the respondent had also

been informed of his right to be assisted by a defence counsel, but did not use that right. On that occasion he was informed of the

contents of article 138 of the Polish Criminal Code which provides that a person in the respondent’s position “who is residing abroad,

shall be obligated to designate an addressee for the service of documents in Poland. If he fails to do so, a document sent to his last

known address in Poland, or with no such address, is filed with the record of the case, and deemed to have been served”. The

respondent designated a particular address in Poland during the course of his interrogation. In relation to this second interrogation,

the letter continues to state that “During this interrogation, conducted by the police as well, Arkadiusz Tokarski pled guilty again to

the charges levelled against him and expressed his readiness to voluntarily submit to penalty. After consulting the state prosecutor,

who was contacted during the interrogation (he) agreed to the penalty which he was ready to suffer, namely:

[1] year imprisonment for the first offence.

[4] months imprisonment for the second offence,

the concurrent sentence combining the above to be [1] year and [2] months imprisonment.”

The letter adds that “It was an unconditional penalty, and therefore [he] agreed himself to serve it in a penal institution.” The

indictment was then drawn up and, as the letter puts it, “enclosed with a prosecutor's request for inflicting upon Arkadiusz Tokarski

the agreed and settled penalty. It entails that Arkadiusz Tokarski knew the circumstances of his conviction and that his conviction

would be adjudged by court. The more so, in the Polish law it is exclusively the court which is in power to convict and sentence for

committing offences.”

The letter then notes that “The sentence was adjudged by the court on 1st December 2009 - (it was the very first legal action

taken by court in this case).”

It then adds that “Due to the fact that Arkadiusz Tokarski did not receive the summons to appear in court as required, the

aforementioned article 138 of the code of criminal procedure was applied.” The respondent was in Ireland at the time.

The letter also explains that the attendance of the respondent before the court when the court “adjudged the sentence” which he

had agreed to during the preliminary proceedings was not necessitated. It further continued that “Mr Tokarski knew the

circumstances of his conviction and his absence from the court hearing was the consequence of his deliberate decision according to

his own will.”

There follows an important passage “For the record, I would like to emphasise that the presence of the convicted would only be

required if the court did not approve of the conditions of conviction to have been agreed on by him before. However, in the said

case all the circumstances of the conviction were accepted by court. Accordingly, the judgment (sic) issued in the above

circumstances is not judgment (sic) passed in default.” It was emphasised that the respondent knew the precise charges levelled

against him, had been given an opportunity to answer them and that “he knew the case [would] be presented to court, and finally,

he knew that only the penalty to which he had agreed upon would be imposed on him (if the court wished to impose another penalty

it would be obligated to order another hearing). Therefore, whereas the above sentence was not passed in default, it is not feasible

to review the case.”

Finally, the letter makes reference the possibility of an extraordinary measure of appeal provided that certain conditions are fulfilled by

the respondent, however this is not of relevance to that at issue in this appeal.

In relation to the additional material subsequently furnished to this Court (admitted de bene esse), it essentially bears out, as noted

above, the now uncontested narrative of what occurred during the two police interrogations and, in particular, that the respondent

signed a document which confirmed that he was pleading guilty to the two offences in question and that he agreed to the penalty

suggested by the prosecutor as proper penalties for the offences committed.

The additional material furnished to this Court also included the indictment which was prepared following the aforementioned

interrogation process. The indictment specifies the charges against the respondent and also provides a summary of the factual

circumstances surrounding each offence.

Submissions on behalf of the Appellant

It was submitted on behalf of the Minister that the essential issue in this case is whether the respondent had been “tried for and

convicted of” the offence set out in the EAW by a court in circumstances “where the respondent had already agreed his guilt and

the sentence to be imposed prior to the Polish court convicting him and sentencing him on the papers of the agreed position?”

It was at all times acknowledged on behalf of the Minister that the respondent was not notified of the proceedings before the district

court in Poland on the 1st December, 2009, the sole judicial adjudication on his case, within the meaning of s.45 of the Act of 2003.

The issue, therefore, turns on the submission made on behalf of the Minister that the conviction and the imposition of the sentence

on the above date by the Polish court did not amount to a “trial” for the purpose s.45 of the Act of 2003. It is accepted as an

“indisputable fact” by the Minister, that the respondent was convicted of the offences before the Polish District Court. The Minister

rejected the argument, however, that the respondent was in fact “tried” for the offences on the basis that those proceedings did not

constitute a “trial” as defined by Irish law, for the simple reason that the proceedings in Poland did not involve the determination of

the guilt or otherwise of the respondent.

Counsel for the Minister relied on the dictum of Finlay C.J. in Goodman International v. Hamilton [1992] 2 I.R. 542 where he stated at

p. 588:

“The essential ingredient of a trial of a criminal offence in our law, which is indivisible from any other ingredient, is that it

is had before a court or judge which has got the power to punish in the event of a verdict of guilty. It is of the essence

of a trial on a criminal charge or a trial on a criminal offence that the proceedings are accusatorial, involving a

prosecutor and an accused, and that the sole purpose and object of the verdict, be it one of acquittal or of conviction,

is to form the basis for either a discharge of the accused from the jeopardy in which he stood, in the case of an

acquittal, or for his punishment for the crime which he has committed, in the case of a conviction.”

Counsel also relied on the dictum of Henchy J. in The People v. O’Shea [1982] I.R. 384 where he stated at p. 431:

“[…] a trial before a judge and jury in which the judge would preside, ensure that all conditions necessary for a fair and

proper trial of that nature are complied with, decide all matters deemed to be matters of law, and direct the jury as to

the legal principles and rules they are to observe and apply; and in which the jury, constituted in a manner calculated to

ensure the achievement of the proper exercise of their functions, would be the arbiters, under the governance of the

judge, of all disputed issues of fact and, in particular, the issue of guilt or innocence.”

Counsel for the Minister also relied on a number of High Court decisions which addressed the meaning of the phrase “tried for and

convicted of” in s.45 of the Act of 2003. Reference was made to the judgment of the High Court in MJELR v. McCague [2010] I.R. 456

where the trial judge stated at p.485:

“In my view the terms of s.45 of the Act of 2003 are very specific and unambiguous. It refers to not being present for

the trial of the offence and not to being present when sentenced for the offence. Given the terms of article 5.1 of the

Framework Decision this cannot even be seen as an accidental omission. In any event, there was no requirement that

legislative effect be given to article 5.1 at all. It is an optional provision for any member state to make provision for in

its domestic legislation giving effect to the Framework Decision. […] In view of the clear words used in this section, the

right to be present at a sentence hearing, separate from the right to present at trial, as referred to in relation to the

respondent's arguments under s.37 of the Act of 2003, does not come into play under this point of objection under s. 45

of the Act of 2003.”

Counsel also relied on two subsequent decisions of the High Court, MJELR v. Ciechanowicz [2011] IEHC 106 and MJELR v. Zachweija

[2011] IEHC 513, in which cases the above cited dictum from McCague was followed and applied. It is noteworthy that the High Court

judge who delivered the judgments in Ciechanowicz and Zachweija is the same trial judge as in the present case, who decided that,

having regard to the facts of the case at hand, the respondent had been tried for and convicted of an offence.

In Ciechanowicz counsel for the respondent, the person whose surrender was being sought accepted that the decision in McCague

was binding on the court and that in that case s.45 was correctly interpreted.

In Zachweija, as mentioned above, the learned trial judge followed the dictum of the High Court in the McCague case, and observed

that Messrs Farrell and O’Hanrahan, The European Arrest Warrant in Ireland (Clarus Press, 2011) have recorded, in a footnote at

p.209, that the judgment in McCague was subsequently affirmed ex tempore by the Supreme Court.

I think it should be noted at this stage that the ex tempore judgment given by this Court in the McCague case did not affirm the

decision of the High Court on the particular point concerning the meaning of a trial within the meaning of s.45(a) of the Act of 2003.

The sole issue decided in that appeal, upholding the decision of the High Court on the point, was whether the person concerned had

been “permitted to attend” the trial in respect of the offence concerned within the meaning of s.45(b)(ii). This Court upheld the

finding of fact of the learned High Court judge in that case that the respondent in the proceedings had not established as a fact that

he was “not permitted” to attend his trial. No reference was made in the judgment of this Court to the meaning of ‘trial’ for the

purposes of s.45 or to any issue arising under s.45(a) which is the provision in question here.

It was submitted by counsel, in the light of the authorities and particularly the McCague decision, that it is “the hearing as to the

guilt or innocence” which constitutes a trial and which requires the presence of the accused. It was also submitted that the term trial

should be given the meaning that is attributed to it in Irish law. Counsel made reference to the forms of trial in this country, with

particular emphasis on trial by jury.

Submissions on behalf of the Respondent

Counsel for the respondent submitted that in this appeal both parties agree that “trial” in a criminal context means a determination of

guilt or innocence coupled with the power to punish in appropriate circumstances. On the evidence in this case it is only the judge in

the Polish court who had power to convict and punish. Accordingly, a trial or hearing took place before the Polish judge. This, it was

submitted, is the interpretation to be placed upon the reference to tried and convicted in s.45(a) of the Act in accordance with

normal rules or canons of interpretation. There are no grounds for departing from such normal rules of interpretation simply because

an accused confesses to the police and agrees to plead guilty and submit to a certain penalty. That would be a very novel

proposition.

It was also submitted that s.45 must be interpreted in the light of Article 5 of the Framework Decision which it seeks to implement.

Article 5(1) expressly applies to the underlying judicial decision resulting in the imposition of a sentence where the person concerned

has not been summoned in person or otherwise informed of the place and date of the hearing, which lead to the decision rendered in

absentia. This further bears out that s.45 must apply in a case, such as this, where the underlying judicial decision, to convict and

punish the accused, was made in the absence of the requested person. It was submitted that the cases cited by the appellant,

namely, the McCague, Ciechanowicz and Zachweija cases, are not in point since the facts in each of those cases was different and

the accused had been notified about the time and place of at least part of the respective trials.

Counsel submitted that the learned trial judge was correct in concluding that the proceedings before the Polish court in this case

constituted a trial and conviction within the meaning of s.45(a), and the fact that there has been a pre-trial “plea bargaining”

procedure is not a basis for creating an exception to the application of section 45.

The Judgment of the High Court

The learned trial judge, in the course of his judgment, pointed out that s.45 of the Act of 2003 is to be interpreted as a provision of

Irish statutory law, and concluded that the reference in s.45(a) to being “tried for and convicted of” an offence means “a

determination of the issue of guilt or innocence by a court of law”. He added “although we have no system of plea bargaining the

problem faced by the applicant has nothing per se to do with the fact that there was a plea bargain in this case”. He repeated:

“’Trial’ as understood in Irish law imports a determination of guilt or innocence by a properly constituted court of law,

i.e. by a judge appointed either under the Constitution of the state in question or otherwise in accordance with its laws:

alternatively, where the law of the relevant state permits it, by a jury following a trial in an indictable matter before

both judge and jury. Pleas of guilty are, of course, commonplace in Ireland but they are entered before a judge following

an arraignment of the accused in court and the judge, assuming he is prepared to accept the plea (in rare

circumstances he can refuse to do so and direct the entry of a plea of not guilty on behalf of the accused), then

records the conviction. In Ireland there are no circumstances in which either the police, or an official such as a

prosecutor, can receive a plea of guilty from an accused and have a conviction recorded on the basis of it. At most, all

that can be received is an indication from the accused as to his intentions upon arraignment when he is brought before

the Court of trial.

Secondly, the Court believes that the evidence contained in the additional information dated the 22nd of February 2012

establishes that that is also the position in Poland. When the document in question refers to the fact that the respondent

"pled guilty" before the police, and again later on before the state prosecutor, it is manifest that he merely agreed that

when brought before a court he would plead guilty in return for the authorities recommending to the court the

imposition a specific pre-agreed penalty. It is abundantly clear that he was not actually arraigned.”

He indicated this was manifest from statements in the documentation furnished to it, and he then made particular reference to the

following extract:

“The indictment act was then drawn up, enclosed with a prosecutor's request for inflicting upon Arkadiusz Tokarski the

agreed and settled penalty. It entails that Arkadiusz Tokarski knew the circumstances of his conviction and that his

conviction would be judged by court. The more so, in the Polish law it is exclusively the court which is in power to

convict and sentence for committing offences.” (emphasis added)

The learned trial judge then went on to state that the matter was put beyond doubt by the following statement in the documentation

furnished by the Polish authorities:

“The sentence was adjudged by court on 1st December 2009 (it was the very first legal action taken by court in this

case)”

The learned High Court judge then concluded:

“In all the circumstances of the case the Court is satisfied that the respondent was in fact tried and convicted in

absentia, and in the absence of a s.45 undertaking it must refuse to surrender him.”

Decision

I agree with that conclusion of the learned trial judge which he based on the facts and circumstances of the proceedings before the

Polish District Court. He was incidentally also the trial judge in the Ciechanowicz and Zachweija cases relied on by the Minister in

which the dictum in McCague was applied by him. He had no difficulty in finding on the facts in this case that the respondent had

been tried and convicted by the Polish court.

A number of uncontested facts emerged from the narrative given by the Polish authorities concerning the procedures which were

followed during the police “interrogation”, as it is put in the English translation, and the subsequent judicial proceedings, or “lawsuit

stage”. These are:

1(a) During the course of his “interrogation” by the police the respondent made a formal admission of the offences in

question.

(b) He also formally agreed to a sentence which the prosecutor would request the court to impose for those offences.

(c) He signed documents which confirmed his agreement as aforesaid. These procedures were carried out under the

supervision of a prosecutor who was consulted and agreed on the sentence which the court would be asked to impose.

(d) Subsequent to that the indictment was drawn up and, as it was put, “enclosed with a prosecutor’s request for

inflicting upon [the respondent] the agreed and settled penalty”.

(e) The matter was brought before the Polish District Court and it was at this point, that the judicial process, or the

“lawsuit”, was commenced.

(f) The matter was then listed for hearing before the Polish District Court. This constituted the sole instance in which

there was a judicial determination in Poland in his case.

Before going on to refer to other established facts, I would comment at this point on the use of the word “plead” and the reference

to the respondent “pleading” to the charges in the course of the procedures conducted by the police and the prosecutor. Objectively

that refers to the fact that the respondent agreed, and formally admitted in writing, to the police and the prosecutor that he

committed the offences in question and agreed to a sentence which could be imposed. Thus, objectively it does not have the

meaning normally attributed to the notion of pleading guilty as used commonly in this country either as a matter of ordinary English or

as a matter law since a plea of guilty to a criminal charge can refer only to a plea made before, and accepted by, a court of law. The

trial judge was correct when he concluded that it amounted to an agreement that the plea of guilty would be tendered to the court.

2. “… it is exclusively the court which is in power [sic] to convict and sentence for committing offences” as stated in the

documentation provided by the Polish authorities.

3(a) At the point when the proceedings were brought before the Polish District Court the respondent did not stand

convicted of any offence, or subject to any sentence of imprisonment.

(b) It was by virtue of the judgment of the court (at the hearing at which the respondent was not present) that he was

convicted by the court and sentenced to a term of imprisonment which corresponded to that to which he had earlier

agreed.

In the context of the foregoing there is an important passage, recited above, in the information provided by the requesting judicial

authority in its letter dated 22nd February, 2012, and which bears repetition:

“For the record, I would like to emphasise that the presence of the convicted would only be required if the court did not

approve of the conditions of conviction to have been agreed upon by him before. However, in the said case all the

circumstances of the conviction were accepted by the court.” (emphasis added)

The ineluctable inference or conclusion from the foregoing is that the Polish court, having received the prosecutor’s request the

indictment and other documents accompanying it, had to be satisfied that all the elements necessary to convict the respondent had

been established to its satisfaction so that it could in “all the circumstances” so established convict him of the offences in question.

In short, there was a judicial adjudication that the respondent should be convicted of those offences. Undoubtedly that was done

because the court was satisfied that the written admissions which he had made were established as being correct and validly done

and that nothing had arisen which could call them in question. It appears evident from the information provided by the Polish

authorities that the court, if not satisfied as to the conditions in which the agreement to plead guilty had been made, could have

refused to convict the respondent. Whether a person in the position of the respondent appearing in such circumstances for the first

time before a Polish court could simply withdraw his admission of guilt does not arise, since there is nothing to indicate whether or not

this may have been the case. But since the court clearly had to be satisfied that the evidence as to the admission of guilt (and

agreement of the sentence) could be relied upon, one can reasonably infer that such a person could raise an issue concerning the

validity of any written agreement to admit the offences and accept the sentence whether on the ground of undue duress or improper

pressure to do so, or the like. In any event, irrespective of any such inference, it is clear that the Polish court had to make a judicial

decision as to whether it would accept the evidence tendered by the prosecution as to the respondent’s admission, and therefore

whether or not to convict. In my view, that issue, as to whether he should be convicted by the court, was clearly an issue which

was tried, even if on the narrow basis as to whether his written admissions should be accepted as valid and justifying a conviction.

Equally, it is clear that the Polish court had, at the same hearing, to try an issue as to the sentence which should be imposed on the

respondent. The judicial authority has pointed out, in the information provided, that the Polish court had jurisdiction to impose a

greater sentence than that which had been agreed, having considered all the matters before it, including the facts recited in the

indictment. If it did do so it would have had to adjourn the matter to allow, or ensure, the presence of the accused.

Consequently, it appears to be open to a Polish court in cases such as the present to conclude that a person should not be convicted

or should be given a sentence different from that which had been agreed with the prosecutor, if the circumstances of the case lead it

to such a conclusion.

In short, the Polish District Court had to determine whether, in all the circumstances on the basis of the matters placed before it, the

respondent should be convicted and, if so, what the sentence should be. The fact that the court determined in this case that the

conviction and sentence should be in accordance with the earlier formal admissions he made to the police and prosecutor and the

agreed sentence does not take away from the fact that those issues were tried and determined by it.

The learned trial judge in coming to that conclusion correctly emphasised at p.13 of his judgment two particular statements made by

the requesting authority in the information provided, namely: “…that his conviction would be judged by court. …” and “The sentence

was adjudged by court on 1st December 2009 …” .

McCague Case

In the present case the respondent was not present in court on the occasion when he was adjudged to stand convicted of the

offences in question, and of course he had not been notified of that hearing within the meaning of s.45 of the Act. That is not in

dispute.

The facts and circumstances of the McCague case were quite different. As appears from the judgment of the High Court in McCague,

the accused’s trial had been fixed for the 10th January, 2005. His solicitor and counsel attended at the trial on that date submitting,

on instructions, that the accused was not fit to come to court, and that he could not do so due to legitimate fears for his safety.

The trial judge in that case directed that certain steps should be taken with a view of ascertaining the factual position concerning

the accused’s unwillingness and/or inability to attend. The matter was adjourned to the 11th January, 2005, and on that date the

trial judge in the English court ruled that the reasons advanced for the non-attendance of the accused at the trial were vague and

unsatisfactory. The accused was fully informed by his solicitor of the ruling of the court. The matter was listed for trial on the 13th

January, and the accused did not attend but was represented by his solicitor and counsel who made further submissions as to why

the trial should not go ahead in the absence of the accused. According to the High Court judgment the trial court in England

concluded that the accused was deliberately absenting himself from his trial and directed that trial commence on the 19th January,

2005 even if he was absent. At that point his solicitor and counsel withdrew from the case and the trial in due course proceeded in

the absence of the accused.

The accused was duly convicted but sentencing was postponed to a much later date. In the High Court judgment in the McCague

case (in which the accused was the respondent) it is recited that there was a gap of some months between the trial itself “which

commenced on the 19th January, 2005 and the sentence hearing in June, 2005”.

No issue concerning the application of s.45(a) or indeed (b)(i) of the Act of 2003 arose concerning the presence of the accused at

his trial arose in McCague. The issue concerning his trial related to a distinct contention that the refusal of the trial judge in England

to adjourn the trial because of the accused’s difficulties was a denial of constitutional rights and rights under the European

Convention on Human Rights, and that he had not been “permitted to attend” his trial within the meaning of s.45(b)(ii).

Thus, in the McCague case the person whose surrender was sought was notified of the hearing which led to his conviction within the

meaning of s.45 and no issue arose under that section as to whether a trial had taken place.

The only complaint raised by the respondent in the McCague case concerning s.45(a) and (b)(ii) related to his sentencing some

months later which he differentiated from his trial. He maintained that he had not been notified within the meaning of s.45 of the

sentencing hearing and therefore, in the absence of the appropriate assurances, his surrender should not be ordered. In other words,

he accepted for the purpose of this particular question that his absence from the trial at which he was convicted was not an issue,

only his absence from the sentencing hearing.

On this issue the learned trial judge in the McCague case upheld a submission of the applicant, the Minister, that the respondent had

failed to provide any evidence that he was not made aware by the prosecution of the date on which his sentencing hearing would

take place. He found that the respondent “has not even provided a bare assertion of facts to support that point of objection”. The

learned trial judge correctly concluded that it was not sufficient to simply raise a point by way of objection in the pleadings and offer

nothing in support of such assertion.

The trial judge concluded “Strictly speaking, that is sufficient to dispose of the point raised by the respondent in relation to the

failure to notify him of the date of his sentencing hearing.” That was a reference to the s.45 ‘in absentia’ point.

It was only then that he went on to deal, obiter, with two separate submissions, the first of which concerned a denial of

constitutional rights and rights under the European Convention by virtue of being sentenced when he was not present.

Then he went on to deal with s.45(a) as it might apply to the hypothetical assumption that the respondent although notified of his

trial, had not been notified of his separate sentencing hearing having regard to the particular facts of the case.

It was on those facts and circumstances that the learned High Court judge in McCague delivered the dictum, relied upon by counsel

for the Minister, distinguishing between the trial at which the respondent was convicted and the later sentencing hearing.

As outlined above, the facts here are quite different from the facts in the McCague case, and I do not consider it necessary to

pronounce on the dictum of the learned High Court judge made in the foregoing circumstances, and particularly where the respondent

made no complaint under s.45(a) or (b)(i) concerning his absence from the hearing at which he was tried and convicted and confined

that point to his absence from the much later sentencing hearing.

As already pointed out, and emphasised by the learned trial judge in the present case, here the respondent was absent when he was

convicted by the Polish court. In these circumstances the dictum in the McCague case has no application to the circumstances of

this case. While that dictum was applied by the High Court in the Ciechanowicz and Zachweija cases the facts were also quite

different to this case. In each of those cases the accused had been present at or been notified of the actual trial at which he was

convicted and the decisions which were alleged to have been taken in absentia related only to a subsequent sentencing process.

Some Observations on Section 45

Section 45 of the Act falls to be interpreted in accordance with the ordinary canons of construction of Irish legislation, including the

nature and object of the section and the Act as a whole. As expressed below, it is also subject to the principle of conforming

interpretation as laid down by the European Court of Justice. The section does not specify that the person whose surrender is sought

will be “tried for and convicted of” an offence in a particular form of trial. (Indeed, the word “tried,” the past participle of the verb

“to try”, is used rather than the word “trial”, although not a lot turns on this). This is not surprising since the form of trial, even

within our own system, can vary depending on whether a person is tried and convicted in the District Court, the Special Criminal Court

or the Circuit Court and Central Criminal Court. Moreover, since the Act is evidently the implementing measure for the Framework

Decision, the legislator would have taken account of the diversity of legal systems in the European Union within which the system of

surrender under the Framework Decision functions.

In my view, tried and convicted in its ordinary meaning applies to what factually happened in this case where a Polish court judicially

determined that the respondent should be convicted of the offence. The fact that there was what has been described as a form of

“plea bargaining” and that the respondent had, in a pre-trial investigation, admitted the commission of the offences and agreed the

sentence does not take away from the fact that there was a judicial hearing before a Polish court which made a judicial decision that

he should be convicted of the offence and sentenced.

The Framework Decision

Furthermore, account should be taken of the terms of the Framework Decision when interpreting the Act of 2003, including s.45, as

this Court has often pointed out citing the Pupino decision (C-105/03) of the Court of Justice. Accordingly, because the Act of 2003

is a measure which implements in this country the provisions of the Framework Decision, the Court is obliged, when interpreting the

Act, to apply the principle of conforming interpretation. It might be useful to recall some of the reasons why the Court of Justice

came to its decision in the Pupino case, namely, that the principle of conforming interpretation applies also to national measures

implementing Framework Decisions. It pointed out at paragraph 38 of its judgment that the function or jurisdiction of the court “would

be deprived of most of its useful effect if individuals were not entitled to invoke framework decisions in order to obtain a conforming

interpretation of national law before the courts of the member states.”

At paragraph 42 the court added “It would be difficult for the Union to carry out its task effectively if the principle of loyal co-

operation, requiring in particular that Member States take all appropriate measures, whether general or particular, to ensure

fulfilment of their obligations under European Union law, were not also binding in the area of police and judicial co-operation in

criminal matters, which is moreover entirely based on co-operation between the member states and the institutions, …”

The court then concluded “In the light of all the above considerations, the court concludes that the principle of interpretation in

conformity with Community law is binding in relation to framework decisions adopted in the context of Title VI of the Treaty on

European Union. When applying national law, the national court that is called on to interpret it must do so as far as possible in the

light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with

article 34(2)(b) EU”. As the court went on to point out that principle does not however require a national court to interpret national

law contra legem. The relevant provision of the Framework Decision in this case is, of course, Article 5(1) which has been cited

above.

The European Arrest Warrant in this case has been issued for the purpose of executing a sentence imposed by a Polish court.

Article 5(1) of the Framework Decision reads as follows:

“Where the European Arrest Warrant has been issued for the purpose of executing a sentence or detention order

imposed by a decision rendered in absentia …” (emphasis added)

Article 5 then refers to the fact that surrender may be subject to the condition that the issuing judicial authority give an assurance

that the person, if surrendered, “will have an opportunity to apply for a retrial of the case in the issuing member state and to be

present at the judgment”. (emphasis added)

In referring to the decision which imposed a sentence the reference is, evidently, to a judicial decision, and one which led to the

imposition of the sentence. It seems to me that it would be entirely incompatible with Article 5(1) of the Framework Decision if the

phrase ‘tried for’ in s.45 was to be so narrowly interpreted that it only applied to a judicial determination where the court was required

to hear witnesses on the merits of all the prosecutions allegations of fact pointing to the accused’s guilt.

The State argued that the use of the term “retrial” meant that Article 5(1) only referred to the full trial as to whether the facts or

evidence pointing to the accused’s guilt should or should not be accepted. I do not think this logically follows from a reading of Article

1 of the Framework Decision. On the contrary, if the reference to a person being entitled to a retrial in certain circumstances has a

bearing at all it is one which suggests that a judicial decision which results in the imposition of a sentence is a trial, since it is that

decision which must be taken again if a person is surrendered pursuant to Article 5(1) on the basis of an assurance that he would be

offered a retrial. The same applies if the person has been adjudged to have been convicted and then sentenced on foot of a judicial

decision and is surrendered on foot of assurances referred to in Article 5(1). Then it is that judicial determination of his or her guilt or

the imposition of a sentence which must be “retried”.

I would note in conclusion on this particular point that Article 5(1) of the Framework Decision is an optional rather than mandatory

ground on foot of which a Member State may refuse to execute the European Arrest Warrant. Section 45 is clearly giving effect to

that provision. But for that permissive provision the Act could not properly have specified that a surrender should be refused in the

case of a person tried and convicted in absentia, and when there were no adequate assurances of a retrial. Nonetheless it was not in

issue between the parties that s.45 fell to be interpreted not only in the light of the Framework Decision generally, but specifically in

the light of article 5(1). In any event, Fennelly, J. stated in MJELR v. Bailey [2012] IESC 16 “There does not seem to me to be any

reason in principle to exclude the principle of conforming interpretation from a measure merely because it implements an "opt-out."

On the contrary, logic demands that the principle be applied equally to such a situation. Indeed, it might well be that a correct

interpretation would lead to the exclusion of an individual from the benefit of a national measure, once it was correctly interpreted

as a matter of European Union law. Accordingly, I am satisfied that section 44 must be interpreted in conformity with article 4.7(b)

and not merely with the general objectives of the Framework Decision.” In my view, the same applies to the optional precondition to

surrender provided for in Article 5(1) of the Framework Decision.

Accordingly, while in my view the respondent was tried and convicted by the Polish court within the plain and ordinary meaning of

s.45(a) of the Act, s.45 is, a fortiori, and at the very least, capable of being interpreted in conformity with what is envisaged by

article 5(1) of the Framework Decision. That being the case, the Court, in accordance with the Pupino decision, is in my view bound

to give such an interpretation to s.45.

For all the reasons indicated I would hold that the existence of a form of pre-trial “plea bargaining” does not mean that s.45 of the

Act of 2003 cannot be applied. Accordingly, I would dismiss the appeal.