Supreme Court dismisses appeal against surrender order under European Arrest Warrant Act 2003 despite prior quashed convictions.

THE SUPREME COURT

[Appeal No: 368/08]

Denham C.J.

Murray J.

Hardiman J.

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003

BETWEEN/

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

APPLICANT/RESPONDENT

AND

KASPARS KONCIS

RESPONDENT/APPELLANT

Judgment delivered on the 29th day of July, 2011 by Denham C.J.

1. This is an appeal on behalf of Kaspars Koncis, the respondent/appellant, referred to as "the appellant", against the judgment and

order of the High Court (Peart J.), of the 12th November, 2008, wherein the appellant was ordered to be surrendered to Latvia

pursuant to the terms of the European Arrest Warrant Act, 2003.

2. There is a history behind the order of the High Court.

3. On the 4th December, 2004, the Latvian authorities first issued a European arrest warrant seeking the appellant so that he might

be prosecuted for four offences allegedly committed in 2004. That warrant was sent to Ireland but it was never endorsed for

execution.

4. A second warrant for the same offences was issued on the 21st September, 2005 and was endorsed by the High Court on the 3rd

August, 2006.

5. The appellant was arrested on the 23rd August, 2006 and having been refused bail he was remanded in custody in Cloverhill Prison

where he remained for six months.

6. On the 24th November, 2006, the High Court made an order for his surrender to Latvia under this second warrant so that he could

be prosecuted there for the offences in the warrant.

7. The appellant appealed against that surrender order. However, he discovered that he had been convicted and sentenced in Latvia

in his absence for the offences for which the Latvian authorities sought on the European arrest warrant to prosecute him.

8. The appellant applied for his release under Article 40.4.2 of the Constitution. On the 20th February, 2007 the appellant was

released by the High Court (Peart J.).

9. It appears that the Latvian convictions were set aside on the 27th April, 2007. He was once more sought to be prosecuted on the

offences alleged in the second warrant. The Minister was informed of this on the 22nd June, 2007. The warrant was not withdrawn

and the Latvian authorities maintained their surrender request.

10. On the 13th November, 2007, on the advice of the Minister, the Latvian authorities issued a third warrant. The Minister received

that warrant on the 3rd December, 2007.

11. On the 21st December, 2007 the appellant withdrew his appeal against the surrender order on the second warrant. The Supreme

Court struck out the appeal, on consent.

12. On the 13th February, 2008, the Minister applied ex parte to the High Court to vacate the indorsement and surrender orders made

by that court on the second warrant on the 3rd August, 2006, and the 24th November, 2006. That application was granted by the

High Court (McKechnie J.).

13. The High Court (McKechnie J.) then indorsed the third warrant for execution.

14. On the 11th March, 2008 the appellant was arrested and brought before the High Court on the third warrant.

15. On the 29th July, 2008, the High Court (McKechnie J.), by consent, vacated his previous order and thereby restored the

indorsement of Peart J.'s previous order for surrender on the second warrant.

16. On the 14th October, 2008, the Minister brought another motion on notice to set aside the indorsement and surrender orders on

the second warrant. This application was opposed but Peart J. dealt with it in conjunction with the s.16 hearing on the third warrant.

17. On the 12th November, 2008, Peart J. made a surrender order against the appellant on the third warrant and made no order on

the Minister's motion to set aside the earlier surrender order.

18. This is an appeal by the appellant from the said order in relation to the third warrant.

Warrants

19. All three warrants have been in relation to the same offences. The offences are described in the third warrant as:-

"This warrant relates on four offences.

1. On May 9, 2004, at 16.50 Kaspars Koncis being previously punished about committing the steal, being in the

influence of alcoholic drinks, in the group of persons with previous agreement – with Ritvars Kupcs, guided by

avaricious motives, being in the bar "Oga" of SIA "Ilva Club" at 3, Upes street, Madona, with the aim to acquire alien

property, using force attacked the barwoman Linda Vismane. At first R. Kupcs came to barwoman and deliberately

with hand seized her throat and dragged her to the warehouse premise, giving the possibility to K. Koncis to get

alien property. There R. Kupcs continued use violence to L. Vismane, deliberately straggling her throat with hand.

When L. Vismane had the opportunity to push back R. Kupcs from herself, R. Kupcs deliberately not less than once

kicked, L. Vismane on head with hand. During R. Kupcs used violence against L. Vismane, K. Koncis went to cash

desk, which was near bar and robbed from there the property of SIA "Ilva Club" - money totally in amount of 125,25

LVL, from the bar robbed the bottle of 1 litre of cognac "Otard", worth 60 LVL, one bottle of volume 0.5 l of cognac

"Baltais Starkis" 9,- LVL worth and opened bottle of volume 1l of cognac "Metaxa" -18 LVL worth, as well robbed the

change money of play machines of SIA "Barklajs Speles" totally in amount of 400, - LVL, and the money collected

for playing - in amount of 16,35 LVL.

Thus K. Koncis using violence in the group of persons committed the robbery of alien property totally in amount of

628,60 LVL, committing to the victims SIA "Ilva Club" and SIA "Barklajs Speles" material loss in the mentioned

amount.

2. Kaspars Koncis on May 29, 2004, at 2.00 in Madona, near the bridge of song platform, which is Situated between

song platform of Madona and Akmenu street, in the city conditions, in the place, where is the transition of people,

kicked Normund Reiniks two times with the fist on head near the face. K. Koncis kicked N. Reiniks after Edgars

Koncis had asked Normund Reiniks to give to smoke. Getting the answer from N. Reiniks, that he does not smoke, K.

Koncis kicked the victim with such violence, that from the first hit the eyes of N. Reiniks begun to water, but from

the second hit N. Reiniks fell down on the earth in the lawn near the bridge. Kaspars Koncis in the group of persons

with Edgars Koncis together kicked to the victim, who layed on the earth, not less than ten times, kicked on head

and body. Thus K. Koncis in the group of persons with E. Koncis roughly disturbed social peace, what was in evident

disregard to the society. Hooliganic actions were connected with committing of body damages.

3. On June 20, 2004 Kaspars Koncis, being the person, which already before has committed steal in the group of

persons after previous agreement, committed the robbery of alien property, what was connected with threatening

of violence. The mentioned person, being in the influence of use of alcoholic drinks on June 20, 2004 from 16.20 till

17.00 in the bus of line Aluksne - Jekabpils together with Aivars Lapatovs stole the property of amount of 106,75

LVL of underaged person Viktors Katkovs, including the mobile phone "Siemens ME 45", 100, - worth, "0"card 5, -

LVL worth and money in cash 1,75 LVL.

4. Besides Kaspars Koncis on August 3, 2004 repeatedly, because previously punished for committing Steal (the

punishment is not served or taken-off), being in the influence of the use of alcoholic drinks, guided by avaricious

motives, near bus-station of Madona, in Madona, 6, Rigas street, misappropriated the mobile phone worth 82, - LVL,

the property of R. Kozlovskis."

20. As stated, the learned High Court judge ordered the appellant to be surrendered to Latvia. In a written judgment delivered on the

12th November, 2008, the learned High Court judge addressed a number of issues.

21. On the issue of the previous warrants the learned High Court judge held:-

"I should refer to the fact that ahead of the present application being heard, a Notice of Motion was issued by the

Applicant in which an order is sought to vacate the order made by this Court on the 3rd August 2006 for the endorsement

of the second warrant, and also the order for surrender made subsequently on the 24th November 2006. This application

was moved on the basis that the underlying European arrest warrant (the second warrant) has been cancelled following

the discovery that the respondent had been convicted in his absence.

I adjourned my decision on that application to the date on which the present application was listed, and at the

commencement of this application I indicated that I would proceed with the application for surrender, and include my

decision on the Notice of Motion in my judgment on the surrender application.

I see no reason to make any order vacating the previous orders. Mr Kelly suggests that since the question of surrender is

in the face of the order dated 24th November 2006 ‘res judicata’, the Court cannot again decide the question. I disagree.

The present application is free-standing on foot of the third warrant. The previous order was made in respect of the

second warrant. That decision is no bar to the present order for surrender being made on foot of the later application.

Such an order does not contradict any earlier order or decide any issue differently which has already been decided. I will

make no order on the Notice of Motion dated 14th October 2008."

22. As to the issue of the information from the General Prosecutor's Office in Latvia, the High Court held:-

"My view is that this Court is entitled to accept the information from the General Prosecutor’s office. It would of course

be open to the respondent to seek to adduce evidence which contradicts or even casts doubt on the accuracy of what

has been stated, but he has chosen not to do so. This Court proceeds on the basis of having a high level of trust and

confidence in the Republic of Latvia and all its emanations and office holders. I am entitled to accept as fact what I am

told has occurred."

Notice of Appeal

23. The appellant filed a notice of appeal stating his grounds of appeal, thirteen of which were specific and were as follows:-

(i) The learned judge erred in law in determining that he was bound to order the surrender of the appellant to Latvia

notwithstanding that the relevant European arrest warrant was the third such request for his surrender for the same

offences and notwithstanding that there was an extant Order of the High Court in the same titled proceedings for the said

offences.

(ii) The learned judge erred in law in ordering the surrender of the appellant notwithstanding the prohibition against

surrender as contained in part 3 of the European Arrest Warrant Act, 2003 and in particular sections 37 and 45 thereof.

(iii) The learned judge erred in law in ordering the surrender of the appellant notwithstanding the imprisonment and

prejudice suffered by him in respect of his unlawful arrest and detention pursuant to the previous request.

(iv) The learned judge erred in law in failing to have regard to the fact that the appellant was not informed about and/or

was kept in the dark about correspondence received and applications made both in this jurisdiction and in Latvia during

the currency of his proceedings and was denied constitutional justice and/or he was not afforded fair procedures.

(v) The learned judge erred in law in his consideration of abuse of process and/or the doctrine of res judicata.

(vi) The learned judge erred in law in concluding the European Arrest Warrant Act, 2003 applied to the Appellant and in

particular he so erred in concluding that the European arrest warrant was "duly issued" within the meaning of section 10

of the Act. Without prejudice to the foregoing the learned judge so erred in failing to properly consider the validity of the

European arrest warrant as a matter of Irish law and whether the warrant was "duly issued" in accordance therewith.

(vii) The learned Judge erred in placing the onus on the appellant to prove the applicability of the statute rather than

requiring the respondent herein to prove its applicability.

(viii) The learned Judge erred in concluding and/or implying that in accordance with the mutual recognition of judicial

decisions he was obliged to surrender the appellant notwithstanding the failure of the issuing judicial authority to put any

information whatsoever before the Court either in the European arrest warrant or otherwise to explain why the previous

request was incorrect and why surrender should again be ordered pursuant to the new warrant in the same set of

proceedings.

(ix) The learned Judge erred in law in concluding he was obliged to give "full recognition to decisions made by the courts

in Latvia" notwithstanding the Latvian authorities failed to give due recognition and respect to the pendancy of

proceedings in this jurisdiction.

(x) The learned Judge erred in1aw in determining that the failure to accord the Appellant natural justice and fair

procedures was insufficient to deny the lawfulness of the fresh warrant upon which his surrender was sought.

(xi) The learned Judge erred in law in his consideration of the prejudice suffered by the Plaintiff and in his determination

that no substantiated prejudice was suffered by the Appellant in consequence of the new warrant and his rearrest.

Without prejudice to the foregoing the learned Judge erred in rejecting the deprivation of liberty and the position vis-à-vis

section 45 of the 2003 Act.

(xii) The learned Judge erred in law in his assessment of the delay and passage of time and so erred in limiting that

consideration to prejudice at trial such that the Appellant's objections could be dismissed in limine. In that regard the

learned trial judge failed to consider the requirements for urgency stipulated in the 2003 Act and the Framework Decision.

(xiii) The learned Judge erred in the manner he considered and determined the relevance of the live endorsement and

execution the warrant to the history of the vacation and reinstatement of those Orders.

24. In written submissions the grounds of appeal of the appellant were identified as follows:-

(i) Extant order. There was already an extant High Court order for the surrender of the appellant to Latvia in the same

titled proceedings and for the same offence.

(ii) Denied fair procedures. The appellant was denied fair procedures and his surrender is prohibited by Part 3, and in

particular s.37 of the European Arrest Warrant Act, 2003.

(iii) Warrant not "duly issued". The warrant was not duly issued within the meaning of s.10 of the Act.

(iv) Onus of proof. The High Court erred in placing the onus on the appellant to prove the inapplicability of the statute

rather than requiring the Minister to prove its applicability.

(v) Mutual respect. The High Court erred in concluding it was obliged to surrender the appellant on the basis of mutual

respect notwithstanding the failure of the issuing judicial authority to reciprocate that respect.

25. When the hearing of this case commenced on the 26th October, 2010, Mr. Micheál P. O'Higgins, S.C., counsel for the appellant,

indicated that he was stressing three issues in his oral submissions, being: (i) Article 23 and the effect of a previous extant order of

the High Court directing surrender of the appellant; (ii) denial of fair procedures; and (iii) an onus of proof issue. He indicated that he

would abandon the "not duly issued" point. He stated that his main point was that the earlier order for surrender remains extant and

acts as a bar to the current proceedings.

26. Mr. Robert Barron, S.C., counsel for the Minister for Justice, Equality and Law Reform, the applicant/respondent, referred to as

"the Minister", addressed this point. He submitted that an order on the second European arrest warrant does not prevent a further

warrant. He pointed out that there was a European arrest warrant which was good on its face for the prosecution of the appellant,

the High Court was satisfied with the warrant, and he submitted that they should be sufficient.

Counsel submitted that there was no authority for the bare proposition that there could not be two warrants. He submitted that the

second warrant is spent, it could not be re-activated especially as the appellant was released on Article 40 on the second warrant.

He submitted that Article 23 of the Council Framework Decision of 13 June 2002, and especially Article 23(2), does not deal with the

situation of any subsequent European arrest warrant. He further submitted that there was no bar in the Framework Decision to

subsequent European arrest warrants, and that there was no bar on the facts of this case.

Extant Order

27. This case arises on a request on foot of a third warrant. This warrant relates to the same offences as the second warrant; the

history has been set out previously. In essence, there is a third warrant coming after a second warrant for the same offences on

which there was an order of the High Court for the surrender of the appellant, an appeal to this Court, which was struck out on

consent, a motion to the High Court, and an order of habeas corpus. The key to the situation is the order for release under Article

40.4.2 of the Constitution on the 20th February, 2007, on the second warrant.

28. Article 40.4.2 of the Constitution requires that on complaint being made by any person to the High Court alleging that such person

is being unlawfully detained, the High Court shall forthwith enquire into the complaint and may order the person in whose custody

such person is detained to produce such person in the High Court and to certify in writing the grounds of his detention. Having given

the person in whose custody he is detained an opportunity to justify the detention, the High Court may order the release of such

person unless the High Court is satisfied that he is being detained in accordance with the law.

29. In this case, the High Court ordered the release of the appellant on the second warrant as it referred to the prosecution of

offences when it had transpired that he had been convicted in his absence.

30. The order of habeas corpus is that the appellant be released. It does not state that the High Court order is quashed.

31. Counsel for the appellant has argued that since the second warrant is extant that then the time limits provided for by Article 23

of the Framework Decision apply, specifically Article 23(2). Article 23(2) provides:-

"He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest

warrant."

Counsel submitted that as the order of the High Court on the second warrant is still extant Article 23(2) applies, and the process

should end ten days after the High Court order on the second warrant. Consequently, he submitted, the process came to an end ten

days after the final order on the second warrant.

32. This case illustrates an unfortunate history of confusion and lack of communication. The European arrest warrant process was

introduced to provide for new expedited procedures between member states, in place of the previous extradition procedures. These

new procedures have not worked efficiently in this case.

33. While there is no express provision in the European Arrest Warrant Act, 2003, as amended, referred to as "the Act of 2003", for a

second warrant to "go again", it is not expressly excluded. I am of the opinion that as long as the procedures are in accordance with

the Act of 2003 and that fair procedures have been followed that there is no reason why a second warrant on the same offences

could not be issued, it would depend on all the circumstances of the case.

34. In this case, counsel for the appellant submitted that the appellant should have been surrendered within ten days of the order of

the High Court of 21st December, 2007, on the extant second warrant, or not at all. He said that he did not have to argue that the

State could not issue another warrant but that in this case the Minister was bringing a third warrant when there was an extant order

of the High Court on the second warrant.

35. While there was an order of the High Court to surrender on foot of the second warrant, this was the subject of the court order of

habeas corpus and the release of the appellant. It is understandable why in logic and practice it was decided not to rearrest the

appellant on foot of the second warrant on which he had previously been arrested and then released.

There is no reason why, in the circumstances, there should not have been a third warrant issued. The issue of second or subsequent

warrants was considred in Minister for Justice, Equality and Law Reform v. Ó Fallúin/Fallon [2010] I.E.S.C. 37, where Finnegan J.,

giving the judgment with which the other members of the Court agreed, stated:-

"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."

In the circumstances of this case there has been no decision which could create an estoppel or give rise to res judicata in favour of

the appellant.

36. Nor, in the circumstances, does the issue of time limits for surrender arise in relation to the orders on the second warrant. The

second warrant has been superseded by the third warrant. While issues of delay may be a matter of concern in a broad analysis,

taking the history of this case as a whole, the terms of Article 23 of the Framework Decision are now applicable to the third warrant

and not to the second. In the circumstances, as this appeal has been pending, they do not arise.

37. Further, reference was made to s.37(1) of the Act of 2003. Here I would again refer to and apply the judgment of Finnegan J. in

Minister for Justice, Equality and Law Reform v. Ó Fallúin/Fallon [2010] I.E.S.C. 37, where he stated:-

"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."

38. In all the circumstances, I am of the opinion that the history of the case, which includes a High Court order and a subsequent

enquiry and order pursuant to Article 40.4.2º of the Constitution ordering the release of the appellant on the second warrant, is not a

bar to the third warrant. The obligation of the courts under the Act of 2003 is to surrender the appellant pursuant to the warrant

where there has been compliance with the Act. The Courts are not given a general discretionary power to refuse surrender. A third

warrant has been issued and it is the obligation of the courts under the Act of 2003 to surrender the appellant if there has been

compliance with the Act. In all the circumstances, I would dismiss the first ground of the appeal raised on behalf of the appellant.

Admissibility Decision

39. The second issue stressed on this appeal by counsel for the appellant was the issue of the admissibility of the letter from the

prosecutor's office dated the 22nd June, 2007, and cited in full earlier in this judgment. Counsel for the appellant submitted that

because it was not from a judicial authority it should not be admitted, and that there was an onus on the Minister to satisfy the court

that it should be admitted. He argued that it was for the Minister to satisfy the Court that the convictions have been set aside.

40. Counsel for the Minister pointed to the letter from the prosecutor. He submitted that this is not a case where a fact was in issue.

He submitted that the learned trial judge was entitled to come to the conclusion which he did. Counsel referred to s.20 of the Act of

2005.

41. Section 20 of the Act of 2003, unamended, provides:-

"20.—(1) In proceedings to which this Act applies the High Court may, if of the opinion that the documentation or

information provided to it is not sufficient to enable it to perform its functions under this Act, require the issuing

judicial authority to provide it with such additional documentation or information as it may specify, within such

period as it may specify.

(2) The Central Authority in the State may, if of the opinion that the documentation or information provided to it

under this Act is not sufficient to enable it or the High Court to perform functions under this Act, require the issuing

judicial authority to provide it with such additional documentation or information as it may specify, within such

period as it may specify.

(3) In proceedings under this Act, evidence as to any matter to which such proceedings relate may be given by

affidavit or by a statement in writing that purports to have been sworn—

(a) by the deponent in a place other than the State, and

(b) in the presence of a person duly authorised under the law of the place concerned to attest to the

swearing of such a statement by a deponent,

howsoever such a statement is described under the law of that place.

(4) In proceedings referred to in subsection (3), the High Court may, if it considers that the interests of justice so

require, direct that oral evidence of the matters described in the affidavit or statement concerned be given, and

the court may, for the purpose of receiving oral evidence, adjourn the proceedings to a later date."

42. Section 20 of the Act of 2003 was amended by s.78 of the Criminal Justice (Terrorist Offences) Act 2005, which provides:-

"Section 20 of the Act of 2003 is amended—

(a) in subsection (1), by the substitution of "issuing judicial authority or the issuing state, as may be appropriate,"

for "issuing judicial authority", and

(b) in subsection (2), by the substitution of "issuing judicial authority or the issuing state, as may be appropriate,"

for "issuing judicial authority".

Counsel submitted that the Minister relied on s.20(b) and that that would justify the admission of the disputed letter, as it came from

the issuing State.

43. In reply, counsel for the appellant referred to the admissibility of the letter and said that s.20(2) was not relied upon in the High

Court. He submitted that it was not set up as a s.20 request case and that there was no evidence that s.20 was invoked. At this

stage of the submissions the court time arranged for the case ran out and the case was adjourned. Resumed Hearing

44. The case resumed on the 17th February, 2011. Counsel for the appellant submitted that the onus was on the Minister to show

that the letter of 2nd June, 2007, from the prosecutor was admissible. The High Court had accepted the letter on the basis of the

high level of trust between member states, and thus found there were no convictions. Counsel submitted that the High Court was

wrong to have regard to the letter. Counsel for the Minister submitted that the entirety of the evidence was in paragraph 7 of the

affidavit of John Davis of the Central Authority for the European Arrest Warrant, Mutual Assistance and Extradition Division,

Department of Justice, Equality and Law Reform, sworn on the 14th day of October, 2008. That paragraph states:-

"The convictions of the [appellant] have been set aside by the Criminal Cases Department of the Supreme Court Senate

of the Republic of Latvia on 27th April 2007 and the Minister was so informed by the issuing judicial authority by letter

dated 22nd June 2007 which was received by the Minister on 9th July 2007… I beg to refer to a copy of the letter and

translation thereof, upon which marked with the letter "B" I have signed my name prior to the swearing hereof."

Counsel for the appellant submitted that the normal rules of evidence should be applied and that the evidence should have been given

viva voce or by affidavit. He argued that the letter was not admissible. Counsel submitted that it was the Minister's obligation to

present it properly in evidence.

Letter dated June 22, 2007

45. The admissibility of the letter dated June 22, 2007, is in issue. This is a letter to Mr. Anthony Doyle of the Central Authority in

Ireland. It states:-

"On Kaspars Koncis

International Cooperation Department of Analysis and Management Department of the General Prosecutor's Office of the

Republic of Latvia had examined your request on the acceptance of a new European arrest warrant regarding K. Koncis,

born on April 18, 1983.

On April 27, 2007, the Criminal Cases Department of the Supreme Court Senate of the Republic of Latvia cancelled the

judgments made by Madona Regional Court on November 9, 2005, and November 11, 2005, in connection with the fact

that Madona Regional Court knew that K. Koncis was in Ireland, and the process of extradition of K. Koncis has already

begun; therefore, the Court did not have the legal basis for making the judgments in absentia.

The European arrest warrant sent to you has not been cancelled and the Latvian party still is asking to extradite K.

Koncis for judicature."

The letter is headed as coming from "Prosecutor's Office of the Republic of Latvia", and it is stated as coming from "Prosecutor" and

signed M. Vilunus. The letter was an exhibit in the affidavit of John Davis of the Central Authority in Ireland.

46. The above amendment of 2005 provides a basis for the High Court or the Central Authority, if the information or documentation

provided is not sufficient to enable it to perform its functions under the Act, to require the issuing judicial authority or the issuing

state to provide additional documentation or information.

47. The Minister relied on s.20(2) of the Act of 2003, as amended, and as stated in full previously, being the affidavit of John Davis of

the Central Authority and the letter exhibited.

48. The European Arrest Warrant Scheme is sui generis. The Act of 2003 was introduced to establish an expedited system of

surrender between Member states. As stated in Recital 5 of the Council Framework Decision of 13 June 2002:-

"The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition

between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction

of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution

of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present

extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should

be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final

decisions, within an area of freedom, security and justice."

49. It is in the context of the Framework Decision that the Act of 2003, and its amendments, require to be construed.

50. In this case, there was the fact that the appellant was being sought for the prosecution of offences, which, it appears, had at

some time been prosecuted and the appellant had been convicted in his absence and that then the convictions were quashed. The

Central Authority of Ireland sought further information. This letter was exhibited in an affidavit of John Davis of the Central Authority

of Ireland. The High Court admitted the affidavit and the letter, bearing in mind the principle of mutual recognition and judicial

cooperation.

51. The European Arrest Warrant Scheme was founded in the Framework Decision and it seeks to implement the principle of mutual

recognition which is the cornerstone of judicial cooperation. The execution of a European arrest warrant is subject to a decision by a

judicial authority: in Ireland this is the High Court, or, on appeal, this Court.

52. In all the circumstances of the case, I would not interfere with the exercise of the discretion of the High Court on the issue of the

admission of the information.

53. As to the other grounds of appeal raised, I do not find that there is a basis to interfere with the order of the High Court. While it

is unfortunate that there were three warrants and many court proceedings, the appellant was treated fairly at all times, and was

entitled to take all such proceedings as he did.

54. The appellant has spent approximately seven months in custody because of these proceedings. Counsel may address the Court as

to the exact length of time during which the appellant was in custody on these warrants. In the circumstances this time should be

deducted from any sentence he may be ordered to undergo in Latvia as required by the Framework Decision.

Conclusion

55. For the reasons given, I would dismiss the appeal.