Court dismisses appeal to compel production of underlying domestic warrant for European Arrest Warrant surrender.

SUPREME COURT

Murray C.J.

Denham J.

Hardiman J.

446/05

BETWEEN

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

PLAINTIFF / APPELLANT

-v-

VALDEMARAS ALTARAVICIUS

DEFENDANT / RESPONDENT

JUDGMENT delivered the 5th day of April, 2006 by Murray C.J.

1. This is an appeal by the Minister for Justice, Equality and Law Reform against an Order of the High Court made on the 29th

November, 2005 directing the production of a copy of a domestic warrant underlying a European Arrest Warrant which was issued in

Lithuania for the surrender of the respondent pursuant to the provisions of the European Arrest Warrant Act, 2003 for the purpose of

requiring him to stand trial on a charge of robbery.

2. I should explain at this point what the underlying ‘domestic warrant’ refers to. When a European Arrest Warrant has been issued by

a designated judicial authority of a Member State of the European Union it is usually, if not invariably, on the basis that there is

already in existence in that country a warrant for that person’s arrest for the purpose of prosecution on criminal charges or an Order

for his or her custodial detention or imprisonment. Both the Act of 2003 and the Framework Decision provide for reference to be made

to such an underlying domestic arrest warrant in the form specified for the European Arrest Warrant.

3. The European Arrest Warrant Act, 2003 has been extensively amended, in particular by the substitution of new sections and

subsections, by the Criminal Justice (Terrorist Offences) Act, 2005. References to the Act of 2003 may be taken as references to

that Act as amended unless stated otherwise.

4. The ‘Framework Decision’ is the Council Framework Decision of 13th June, 2002 on the European Arrest Warrant and the Surrender

Procedures between Member States (2002/584/JHA).

Background

5. On the 15th April, 2005 the respondent was arrested by Sergeant Martin O’Neill on foot of a European Arrest Warrant issued by a

judicial authority in Lithuania dated 30th December, 2004. It had been endorsed for execution pursuant to Order of the High Court

dated 8th April, 2005. Sergeant O’Neill brought the respondent before the High Court on the 15th April, 2005 and gave evidence of

having executed the European Arrest Warrant and arrested the respondent. The respondent was released on bail pending a hearing

pursuant to s. 16 of the Act of 2003.

6. The respondent subsequently served points of objection setting out the grounds upon which he was resisting the application for his

surrender to Lithuania on foot of the European Arrest Warrant. The objection was couched in the most general terms namely:

“The European Arrest Warrant requesting the arrest and surrender of the respondent, Valdemaras Altarvicius, is not in

accordance with law and is unlawful, void and of no legal effect.”

7. That could hardly be considered a statement, even in summary form, of grounds. There is no indication whatsoever of why it is

alleged the warrant is not in accordance with law. Neither does it refer to any material fact relied upon, if any. Such details are

required by Rule 5 of Order 98 of the Rules of the Superior Courts (S.I. 23/2005).

8. It is common case that the respondent sought and obtained a number of adjournments of the hearing to be held pursuant to s. 16

of the Act in order to obtain the advice of an expert in Lithuanian law, the last of such adjournments being on the 20th June, 2005.

On 20th July, 2005 the respondent filed a notice challenging the constitutionality of a large number of the provisions of the Act of

2003 and on 11th October, 2005 the hearing of the s. 16 application was fixed for 27th October, 2005.

9. By letter dated 25th October, 2005 the respondent, through his solicitors, wrote to the appellant’s solicitors seeking a copy of an

arrest warrant of 8th February, 2002 issued by a District Court in Lithuania. No reason was given as why the copy warrant was

considered relevant. This Lithuanian District Court arrest warrant was referred to in the European Arrest Warrant and is the so called

underlying domestic warrant. The letter also stated that in the event of that District Court warrant not being made available to the

respondent an application would be made to the High Court at the hearing of the s. 16 application for an Order directing discovery of

the document.

10. This is what occurred when the matter came on for hearing before the High Court on 27th October, 2005. In summary what the

respondent contended before the High Court was that discovery of the domestic warrant in question was required so as to enable the

respondent to satisfy himself or at least consider whether the European Arrest Warrant is consistent with it. There could be, it was

submitted, an issue of an inconsistency or lack of correspondence between the underlying warrant and the recitals on the face of the

European Arrest Warrant. Insofar as s. 4A of the Act of 2003, as inserted by s. 69 of the Criminal Justice (Terrorist Offences) Act,

2005 provided for a presumption that an issuing State will comply with the requirements of the Framework Decision he wished to be in

a position to consider whether that presumption could be rebutted. It was also submitted that since the onus is placed upon the

respondent to dislodge that presumption he was entitled, as a matter of fair procedures, to see a copy of the domestic warrant in

question in order to consider whether the presumption could be rebutted.

The High Court decision

11. The Order of the High Court directed that the Domestic Warrant be furnished to the respondent in this case.

12. It is important to emphasise that the decision of the learned High Court Judge did not stem from any fact or circumstance peculiar

to this particular application other than the request for a copy of the domestic warrant.

13. In his judgment he stated that the considerations which led him to make this Order in this case “are likely to apply in all cases”

concerning an application to give effect to a European Arrest Warrant. In his judgment he concluded:

“… it would seem to follow that in each case a copy of the underlying Domestic Warrant should either accompany the

European Arrest Warrant or at least be available to the respondent and to the Court in sufficient time prior to the hearing of

the application for the Order for Surrender. If that is done, it will obviate the need for an application for discovery. It is the

case also, if I am correct about the Court’s duty to ensure that the European Arrest Warrant is “duly” issued, then even if the

respondent fails to satisfy the Court of the relevance and necessity for the production of the Domestic Warrant for the

purpose of any issued raised by him by way of Points of Objection, his natural justice right to a copy of same would

nevertheless be difficult to overlook.”

12. Accordingly he went on to make the Order not, as he put it:

“… on the basis of a discovery application, but on the basis that a copy of the warrant is something to which the respondent

is entitled, should he express a wish to be provided with same.”

13. There were a number of considerations which the learned High Court Judge took into account in making his Order. He placed some

emphasis on the use of the word “evidence” rather than “details” in paragraph (c) of Article 8.1 which refers to the Arrest Warrant

setting out “evidence” of an enforceable judgment coming within the scope of Articles 1 and 2 of the Framework Decision that is, the

domestic warrant. He did not consider that the provisions of s. 11(A) of the Act of 2003 as amended by the 2005 Act affected these

considerations simply because it did not use the word “evidence” and merely required that the European Arrest Warrant should specify

the domestic warrant issued in the requesting State. This is because s. 10 of the Act, as amended, expressly states that surrender to

the issuing State under the Act shall take place “subject to and in accordance with the provisions of the Act and the Framework

Decision …” (emphasis added). Since s. 10 commences by referring to a European Arrest Warrant “duly” issued by an issuing State

the High Court may still be bound to satisfy itself that the requirements of the Framework Decision have been met, and that the

domestic warrant is one of the appropriate kind.

14. His conclusion from these considerations was that it is a reasonable requirement that a copy of the domestic warrant should be

available at least to the High Court even if the requesting State does not see fit to attach a copy of it to the European Arrest

Warrant.

15. In reaching his conclusions he expressly relied on the judgment by Finlay Geoghegan J. in The Minister for Justice, Equality and

Law Reform –v- Fallon (The High Court, unreported, 9th September, 2005).

16. In doing so he chose to follow the approach adopted by Finlay Geoghegan J. but, as I shall explain later, Finlay Geoghegan J. had

before her in that case an affidavit setting out evidence as to foreign law which raised an issue seeking to counter any presumption

that may exist that a European Arrest Warrant had been duly issued by the issuing State.

17. The learned High Court Judge also expressed the view that since the making of an Order for Surrender affected the liberty of the

individual it will be difficult to overlook a respondent’s right, in the interests of natural justice and fair procedures, to have a copy of

the underlying domestic warrant particularly if the Court required it in order to be satisfied that the European Arrest Warrant had been

“duly” issued.

Decision

18. The process by which one State transfers a person to the custody of another State for the purpose of standing trial on a criminal

charge or serving a sentence, whether it be called extradition, rendition or surrender, is a long established means of cooperation

between States with a view to upholding the rule of law and combating all forms of criminal activity whether national or trans-

national. The process is invariably reciprocal and such reciprocating arrangements may arise from bilateral agreements or, as is more

often the case nowadays, multilateral treaties. The process of surrender of persons pursuant to a European Arrest Warrant, which is

the one which applies in this case, derives from the Framework Decision adopted pursuant to Article 34 of the Treaty on European

Union. Article 34(2)(b) of the Treaty provides that Framework Decisions “shall be binding on Member States as to the result to be

achieved …”

19. The Act of 2003 is the means adopted by the State to give effect to its obligations under the Framework Decision. Those

obligations are reflected in s. 10 of the Act which provides that where a European Arrest Warrant has been duly issued in respect of a

person within the State, that person shall, subject to and in accordance with the provisions of the Act and the Framework Decision,

be arrested and surrendered to the issuing State.

20. Section 9 of the Act identifies the High Court as the executing judicial authority in the State. Accordingly it is the duty of the

High Court to order the surrender of a person once it is satisfied that the conditions laid down by the Act and the Framework Decision

have been fulfilled.

21. As I mention later in this judgment the Act must be interpreted in the light of the terms of the Framework Decision which it

implements and with particular regard to the objectives to be achieved. The system or mechanism of surrender created by the

Framework Decision applies in all Member States of the European Union. Recital 5 in the preamble to the Framework Decision refers to

“… the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or

prosecution of criminal sentences …” It has as its object “… to remove the complexity and potential for delay inherent …” in pre-

existing extradition procedures. (Whether, in the light of its structure and the manner in which it has been drafted it will achieve that

objective, is another question.) As that Recital, Recital 6 and Article 1.2 make clear it is founded on the mutual recognition of judicial

decisions and judicial cooperation within the European Union. Recital 10 emphasises “the mechanism of the European Arrest Warrant

is based on a high level of confidence between Member States”. Both the preamble and provisions of the Framework Decision as well

as the Act of 2003 acknowledge that in operating this system of surrender fundamental rights, including fairness of procedures, must

be respected and provide for certain safeguards in that respect.

22. It is important to note that the ideas of mutual recognition and mutual respect relate to judicial decisions of a judicial authority,

within the meaning of the Framework Decision, in one State by judicial authorities in other Member States.

23. The only issue in this case is whether the learned High Court Judge was correct in directing that a copy of the underlying

domestic warrant be made available to him and to the respondent in this case and generally in applications for surrender pursuant to

the Act of 2003.

24. In reaching his conclusions the learned High Court Judge had regard to a number of matters, referred to above, which can be

described in summary as follows:

(i) Section 11(1) and (1)A of the Act of 2003 in conjunction with Article 8.1(c) of the Framework Decision;

(ii) Section 4A of the Act of 2003;

(iii) The decision of the High Court in The Minister for Justice, Equality and Law Reform –v- Michael Fallon, also known as,

Michéal Ó Fallúin (the Fallon case);

(iv) General considerations concerning fair procedures.

25. I propose to deal with each of these aspects of the High Court decision in turn.

(i) Section 11 of the Act of 2003 and Article 8 of the Framework Decision

26. Section 11(1) and (1A) if the European Arrest Warrant Act, 2003 as substituted by s. 2 of the Criminal Justice (Terrorist

Offences) Act, 2005 govern the form of the European Arrest Warrant and specifies what it should contain.

27. The relevant provisions are:

11. – (1) A European Arrest Warrant shall, in so far as is practicable, be in the form set out in the Annex to the Framework

Decision.

(1A) Subject to subsection (2A), a European Arrest Warrant shall specify –

…

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

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

respect of that offence,

…

28. Subsection (2A) is not relevant to the issues in these proceedings.

29. Section 11.1(A) of the Act is clear and unambiguous on the question as to whether it is necessary to provide with or attach to a

copy of a domestic warrant of the issuing Member State. For that purpose the European Arrest Warrant only has to specify that a

warrant for a person’s arrest has been issued in respect of the offence for which his or her surrender is sought and details given as

provided for in the form in the Annex to the Framework Decision. It clearly does not go so far as to require that a copy of that

warrant be incorporated in the European Arrest Warrant or be attached to it. The European Arrest Warrant in this case contains the

necessary statement to comply with s. 11.1(A). That has not really been in issue in the case. That warrant is in the form set out in

the Annex to the Framework Decision as required by s. 1(1) of the Act.

30. If that was the only provision governing what a European Arrest Warrant should specify the issues in this matter might have been

more readily resolved. Although the Framework Decision cannot, in terms of community law, have direct effect (since Article 34.2(b)

of the Treaty on European Union expressly excludes such effect) the Oireachtas has chosen to give it, at least as regards a

significant number of its provisions, such effect and make it directly applicable within the State. This is achieved, inter alia, by s. 10

of the Act of 2003 which provides that where a European Arrest Warrant has been duly issued in respect of a person “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”. The Act does not confine itself to including the Framework Decision in a schedule for reference purposes. There are

other provisions of the Act of 2003 which require the Courts to interpret and apply the Framework Decision directly but it is sufficient

for present purposes to note that s. 10 means that in deciding on an application for a surrender pursuant to the terms of the Act of

2003 the Court must apply both the provisions of the Act and the Framework Decision. It is, to say the least, an idiosyncratic method

of legislating and likely to create ambiguity.

31. Article 8 of the Framework Decision also deals with the content and form of the European Arrest Warrant, the relevant part of

which provides:

“1. The European Arrest Warrant shall contain the following information set out in accordance with the form contained in the

Annex:

…

(c) Evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect,

coming within the scope of Articles 1 and 2;”

32. So the learned High Court Judge had not only to look at s. 11(1A) governing the content of the European Arrest Warrant but also

Article 8.1(c) of the Framework Decision on the same matter. It was the use of the word “evidence” in the Framework Decision, a

word not used in s. 11, which occupied much of his considerations. In the ordinary scheme of things the function and purpose of the

appropriate national legislative measure is to give effect to a Framework Decision. Article 34(2)(b) of the Treaty on European Union,

as amended by the Amsterdam Treaty, 1997, provides that “Framework Decisions shall be binding upon the Member States as to the

result to be achieved but shall leave it to the national authorities the choice of form and method. They shall not entail direct effect

…”

33. When applying and interpreting national provisions giving effect to a Framework Decision the Courts “… must do so as far as

possible in this light of the wording and purpose of the Framework Decision in order to attain the result which it pursues …” (C-

105/03 Pupino ECJ 16th June, 2005). The principle of conforming interpretation is limited, as the Court of Justice has pointed out in

Pupino and other cases, to the extent that it is possible to give such an interpretation. It does not require a national court to

interpret national legislation contra legem. If national legislation, having been interpreted as far as possible in conformity with

community legislation to which it purports to give effect, but still falls short of what is required by the latter, a national Court must,

as a general principle, apply that legislation as interpreted although there may be other consequences for a Member State which has

failed to fully implement a Directive or Framework Decision.

34. Thus this Court is in the unusual position of having to interpret and apply Article 8 of the Framework Decision directly because of

the effect given to it in national law by the Oireachtas and not by Community Law. A reference of a question concerning the

interpretation or application of the Framework Decision to the Court of Justice for a preliminary ruling pursuant to Article 35.1 of the

Treaty on European Union cannot be made since Ireland has not made a declaration accepting the jurisdiction of the Court of Justice

to give such a preliminary ruling which Article 35.2 makes a precondition to any such jurisdiction. It is a matter for this Court to

determine, in final instance, the interpretation of the Framework Decision but I do not think it is necessary to refer generally to the

principles and methods of interpretation of community law since I believe the issue in this case can be resolved on the basis of one of

those methods namely, the ordinary meaning of the text of the provision in question.

35. If one turns to the terms of Article 8 of the Framework Decision, although worded in somewhat different terms to the Act, I do

not think that the result is any different even though it says that the information to be set out in the warrant should include

“evidence” of the domestic warrant. At least that is the term used in the English language version and its equivalent term ‘fianaise’ is

also used in the Irish language version.

36. The next thing which is clear is that Article 8 does not specify that a copy of the domestic warrant shall be part of the

information set out in the European Arrest Warrant. That would have been the obvious thing to state if that is what was intended.

37. Article 8.1 also states, in common with Article 11.1(A) of the Act, that the European Arrest Warrant shall be in the form contained

in the Annex. The relevant part of the form in the Annex is (b) which reads as follows:

“Decision on which the Warrant is based:

1. Arrest Warrant or judicial decision having the same effect: ……….

Type: ……….

2. Enforceable judgment: ……….

Reference: ……….”

38. So far as the form set out in the Framework Decision is concerned it is clear that all which it envisages is that certain information

is given concerning an underlying domestic warrant or enforceable judgment, as the case may be. It does not in any sense suggest

that a copy of the domestic warrant or judgment in question should be part of the European Arrest Warrant.

39. This interpretation is to my mind confirmed by the introductory words to Article 8 which refers to the European Arrest Warrant

containing “the following information set out in accordance with the form contained in the Annex;” (emphasis added)

40. This is what the European Arrest Warrant in this case does. It gives information concerning the underlying domestic arrest

warrant as required by the Article and the Annex. It states the date when the ruling issuing that arrest warrant was made and the

Court by which it was made. It refers to the type of warrant as being an arrest warrant and goes on, although in my view

unnecessarily, to refer to the enforceable judgment as being a judgment “to arrest” and gives a reference number. It is axiomatic

that the term “evidence” falls to be interpreted according to its context (see Brady –v- Haughton & Ors [The Supreme Court,

unreported, 29th July, 2005]). Information may be evidence of the existence of something. The term “evidence” is often used outside

the context of court proceedings but even in court proceedings details or information concerning the existence of a thing may be

sufficient. In any event, neither Article 8 nor the form contained in the Annex, require a copy of the domestic arrest warrant to be

furnished or require its production.

41. The judicial authority of the issuing State has stated in the European Arrest Warrant that such a warrant was issued, the date it

was issued, the Court by which it was issued and its reference number. That information is evidence of the existence of an

enforceable warrant against the person in question. In reality what the Framework Decision requires is that information is given as to

existence of an underlying domestic warrant or judgment, where this exists, including information concerning the nature or type of

warrant of judgment. This has been complied with.

42. Accordingly the reference to the domestic warrant in the European Arrest Warrant fulfils the requirements of both s. 11 and

Article 8.

43. I would add that, although it is not a necessary consideration for present purposes, I am confirmed in this view by some of the

other language versions of the Framework Decision. The Decision is authentic in each of the official languages. In its French version

Article 8.1(c) refers to “l’indication de l’existence d’un jugement exécutoire, d’un mandat d’arrêt …” This may be interpreted as

meaning ‘specifying’ or literally indication concerning the existence of the underlying warrant. Similar terminology is used in the Italian,

Spanish, Portuguese and German language versions. (indicazione dell’esistenza; la indicacion de la existencia; indicacao da existencia;

die Angabe … vorliegt.)

(ii) Section 4A of the Act of 2003, as amended

44. The learned High Court Judge also placed some reliance on the provisions of s. 4A of the Act of 2003 in coming to his conclusion.

45. That section provides:

“It shall be presumed that an issuing State will comply with the requirements of the Framework Decision, unless the contrary

is shown.”

46. That section only arises for consideration when an application for surrender is made. The section is couched in the future tense

and plainly speaks of future compliance by the issuing State with the requirements of the Framework Decision subsequent to the

making of an Order for a person’s surrender. This is quite logical since the Framework Decision imposes duties and obligations on the

issuing State concerning the manner in which they deal with the person surrendered after surrender has taken place. Some of these

are to be found in Chapter 3 of the Framework Decision dealing with “Effects of the Surrender”. One example is to be found in Article

26.1 where the issuing Member State is obliged to deduct all periods of detention arising from the execution of a European Arrest

Warrant from the total period of detention to be served in the issuing Member State.

47. In my view, s. 4A is not relevant to a question of whether an issuing State has complied with the Framework Decision in respect

of a European Arrest Warrant already issued or whether that warrant conforms to the form of warrant required by the Act or the

Framework Decision.

48. Although I have concluded that the presumption referred to in s. 4A is not relevant to the circumstances of this case it is

undoubtedly the case that extradition arrangements, whatever their form, between this country and other States have been applied

by the Courts on the presumption that those States have complied or will comply in good faith with their obligations under the

relevant Treaty or statutory provisions governing those arrangements. Generally speaking extradition arrangements and the like are

based on recipricocity and mutuality. Each country enters into such arrangements on the presumption that the other country will

comply with their requirements and apply them in good faith. In Ellis –v- O’Dea (No. 2) [1991] I.R. 251 at 262 McCarthy J. stated “The

making of the extradition arrangements presupposes that the Government and the Oireachtas are satisfied, amongst other things,

that, an Irish citizen being extradited to the United Kingdom, as in this instance, or to any other State with which Ireland has such

arrangements, will not have his constitutional rights impaired”. In Wyatt –v- McLoughlin [1974] I.R. 378 at 390 Finlay J., as he then

was, stated “… I am satisfied that I am entitled to have regard to the fact that an Extradition Act is necessarily the consequence,

… of an agreement between two sovereign states reposing confidence in each other, and I should not in the first instance, suppose

that the Court and other authorities of the country by which extradition is sought are using deceit so as to secure the apprehension

of the plaintiff”. I take this as a correct statement of the law and is not affected by the decision of this Court in that case on appeal.

In fact an example of that approach is to be found in the statement of Walsh J. (at 395) in giving a majority judgment in the appeal in

Wyatt –v- McLoughlin when he stated “Until there is some reason to believe to the contrary, it is to be assumed that a statement of

facts such as the one appearing on the warrant executed in this case, or any warrant sent here for execution, is a truthful

statement of the facts of the case in respect of which the arrest is sought”. That approach is again underscored by the principles

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

cooperation and a high level of confidence between Member States.

49. That is not to say, as the judgments which I have cited, and others, have made clear, that the Courts are prevented from

examining applications for surrender with a view to being satisfied that relevant legislation has been complied with and personal rights

which are guaranteed are not infringed. But they do so with a benefit of a presumption that the issuing State complies with its

obligations. If there is cogent evidence to the contrary then an issue may arise. A mere assertion of non-compliance or the mere

raising of a possibility of non-compliance, which is the case here, is not sufficient to dislodge the presumption of compliance. If that

were the case it would in effect convert the presumption of compliance into a presumption of non-compliance.

50. Accordingly the existence of such a presumption cannot be treated as a basis for demanding the production of the underlying

domestic warrant.

(iii) The Fallon Case

51. In reaching his general conclusions in this case the learned High Court Judge found support from the dicta of Finlay Geoghegan J.

in the case of The Minister for Justice, Equality and Law Reform –v- Michael Fallon, also known as, Michéal Ó Fallúin [The High Court,

unreported, 9th September, 2005]. That is a case in which Finlay Geoghegan J., having concluded that on the evidence before her in

that case she should inquire into the issue as to whether a European Arrest Warrant had been duly issued in accordance with English

law, adjourned the hearing to allow the applicant, the Minister, as well as the respondent if he so wished, to obtain further evidence

in relation to the issues of English law or of compliance with the requirements of the Framework Decision concerning the issuing of the

European Arrest Warrant by the English Court in that case.

52. That case is quite different from the present case. The conclusions and findings of Finlay Geoghegan J. in that case were based

on the evidence of an English lawyer, Mr. Cauldwell, to which she referred in stating:

“… if a respondent puts before the Court evidence which, if accepted, establishes as a matter of probability that the European

Arrest Warrant was not issued in accordance with the requirements of the Framework Decision or the requirements of the

Framework Decision as implemented in the issuing State then this Court is bound to inquire whether such a European Arrest

Warrant has been duly issued. The averments made by Mr. Cauldwell raise such an issue in this application.”

53. In the Fallon case there were two reasons why Finlay Geoghegan J. considered that the validity of the underlying domestic

warrant should be examined. One arose from s. 10 of the 2003 Act which refers to a European Arrest Warrant which has been “duly”

issued and the other arose from the terms of s. 16(1)(e) of that Act which provides for the making of an order of surrender by the

High Court provided that the surrender of the person in question is not prohibited by Part 3 which, inter alia, provides that a person

should not be surrendered if that would constitute a contravention of any provision of the Constitution.

54. In relation to each reason Finlay Geoghegan J. relied expressly on the existence in the affidavit by the English lawyer of evidence

purporting to establish as a matter of probability that the arrest warrant in question was not duly issued. At one point she concluded

that:

“The evidence presently before this Court from Mr. Cauldwell is that as a matter of English law the 2003 warrant was no

longer a valid warrant to arrest after its execution on 8th January, 2004.”

55. It is clear that evidence was considered sufficient to prima facie dislodge the presumption.

56. In this particular case there was no evidence before the High Court which raised, as a matter of probability or otherwise, that the

European Arrest Warrant may not have been duly issued or that its execution would give rise to a denial of constitutional rights.

57. It is not necessary to comment on the substance of the Fallon case since the ratio of the decision of Finaly Geoghegan J. has no

application to the circumstances of this case, in the absence of any evidence before the High Court raising an issue as to the

circumstances in which the European Arrest Warrant was issued.

58. However, in expressing his concurrence with the view of Finlay Geoghegan J. the learned trial judge in this case continued “It

would follow that the Court should have available to it at least a copy of the underlying warrant, and if that be so, fair procedures

and natural justice would dictate that a copy should be furnished to the respondent”.

59. In view of my conclusion that the ratio of the Fallon case has no application to the facts or circumstances of this case I am

bound to conclude that the learned High Court Judge was incorrect in concluding that the Fallon case was a basis for requiring the

State to produce the underlying arrest warrant.

Section 20 of the 2003 Act

60. There is one particular matter to which I wish to refer at this point. Section 20(1) of the Act of 2003 provides that the High Court

may, “… if of the opinion that the documentation or information provided to it is not sufficient to perform its function under this Act,

require the issuing judicial authority or the issuing State, as may be appropriate, to provide it with such additional documentation or

information as it may specify, within such period as it may specify”.

61. The section is clearly intended to apply in the circumstances of each particular case and is only relevant if the High Court is of

the opinion that the documentation or information before it in a case is not sufficient to enable it to perform its function. It follows

that if the European Arrest Warrant, in conjunction with any other matters which may be before it, is sufficient to enable the Court to

perform its function, the application of that section does not arise.

62. Moreover, Article 34.2(b) of the Treaty on European Union provides for the adoption of Framework Decisions for the purpose of

approximating the laws and regulations of the Member States. It is also clear from the provisions of the Framework Decision in this

case that it is intended to approximate the laws of Member States with regard to the surrender of persons so that there is in place a

uniform system for such surrender throughout the European Union. The Act of 2003 must be interpreted in the light of the foregoing

and s. 20 would not in my view be a basis for unilaterally requiring additional proofs to be provided or additional conditions to be

fulfilled in every case.

63. No decision pursuant to s. 20 has been made in this case.

64. Recourse to s. 20 is a matter to be decided by a Judge of the High Court in the exercise of his or her discretion in each individual

case provided of course that the essential elements necessary for the exercise of that discretion are present.

(iv) Fair procedures generally

65. I have concluded that neither s. 11 of the Act or Article 8 of the Framework Decision require that a copy of the underlying

domestic arrest warrant be included in or attached to the European Arrest Warrant.

66. I have also concluded that s. 4A and the Fallon case have no application to the circumstances of this case.

67. There remains the general basis on which a copy of the underlying warrant was sought and the general consideration of fair

procedures.

68. The respondent in these proceedings has asserted that he wishes to look at the underlying domestic warrant in order to check

whether there might be any inconsistency between the charge or charges in that warrant and the European Arrest Warrant. The

issued raised is purely speculative. No material or evidential basis has been raised from which it could be inferred that any such

inconsistency exists. Speculation or assertion as to what procedures might or might not have been followed in the issuing State is not

sufficient to raise an issue to be tried in these proceedings.

69. The operative document in an application for surrender pursuant to the Act is the European Arrest Warrant issued by a judicial

authority of the issuing State within the meaning of the Framework Decision. That is the essential basis on which the High Court is

required to act in an application pursuant to s. 16 of the Act.

70. The circumstances in which and the extent to which a Court in this country could review a decision of a judicial authority in

another country as to the correctness of its decision is not a matter which needs to be considered in this case. Suffice it to say that

a mere assertion that there was a defect, let alone a mere statement that there may have been a defect, as in this case, in the

manner in which the European Arrest Warrant was issued is not sufficient to raise an issue and put a Court on inquiry as to that

matter. Apart from the fact that such an approach would make extradition or surrender wholly unworkable, it would be entirely

inconsistent with the provisions of the 2003 Act as well as the objectives and provisions of the Framework Decision itself. So far as

there is an analogy with discovery, to seek it on the basis outlined would be speculative and classically a fishing expedition.

71. In my view the applicant, in the context of this application, has been accorded full and fair procedures. He has of course been

served with a copy of the European Arrest Warrant on foot of which his surrender is sought. It is in the form provided for by the Act

and the Framework Decision. That is the case which he has to meet and he has had an opportunity to do so.

72. Accordingly I would allow the appeal and remit the matter to the High Court as the executing judicial authority for final

determination.