Supreme Court dismisses appeal against surrender under EAW due to appellant's own conduct causing prosecutorial delay.

THE SUPREME COURT

Appeal No. 50/2007

Kearns J.

Macken J.

Finnegan

BETWEEN

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

APPLICANT/RESPONDENT

and

ROGER MICHAEL GARDENER

RESPONDENT/APPELLANT

Judgment of Mr Justice Finnegan delivered on the 30th day of July 2007

This appeal from the judgment and order of Peart J of the 6th February 2007 that the appellant be surrendered to the United Kingdom

of Great Britain and Northern Ireland on foot of a European Arrest Warrant dated the 18th August 2006 has to a very considerable

extent been overtaken by events. The appeal was listed for hearing on the 26th July 2007 immediately after this court delivered its

judgment in Minister for Justice, Equality and Law Reform v Stapleton. With commendable expedition counsel had already considered

that decision.

The relevant facts in this case can be briefly stated. The European Arrest Warrant relates in total to ten offences as follows:-

doing an act intended to pervert the course of justice.

conspiracy to commit arson.

attempting to obtain property by deception.

three offences of rape.

four offences of indecent assault on a female.

The first three offences are alleged to have been committed between the 7th August 2000 and the 9th September 2000. The

offences of rape and indecent assault are alleged to have been committed between the 25th October 1987 and the 26th October

1989. The first three offences were listed for trial at the Crown Court at Newport, Wales, on 4th June 2001: the appellant did not

attend. Thereafter revised charges were formulated and the warrant in respect of these charges is the basis for the European Arrest

Warrant. In relation to the charges of rape and indecent assault a preliminary hearing was listed for the 1st June 2001 at Crown Court

at Newport. Again the appellant did not attend.

The appellant’s case on this appeal is that the prosecutorial delay in relation to the first three offences between the 4th June 2001

and the date of the European Arrest Warrant the 18th August 2006 and in relation to the charges of rape and indecent assault

between the 25th May 2001 and the date of the European Arrest Warrant, the 18th August 2006, is unexplained and of such duration

that there is a presumption of prejudice. However it was acknowledged on behalf of the appellant that no specific prejudice could be

shown and further that the appellant could not satisfy the requirement in P.M. v D.P.P. [2006] 2 I.L.R.M 360 that an applicant seeking

an order of prohibition restraining his trial on grounds of prosecutorial delay in this jurisdiction must bring something more into the

balance than the blameworthy delay relied upon.

Two matters arise out of the decision of this court in the Minister for Justice, Equality and Law Reform v Stapleton Supreme Court

26th July 2007 Fennelly J which are fatal to this element of the appeal. Firstly where, as here, the respondent is the principal culprit

in relation to the delay upon which he relies, he having failed to attend court for the purposes of the criminal proceedings against him,

he is disabled from relying on that delay. Secondly and more importantly the issue of delay is one to be dealt with in the court of trial

unless the respondent can establish by clear and cogent evidence a clear and fundamental defect in the system of justice of the

requesting state such that the refusal of the application for surrender is necessary to protect his constitutional rights. In this case

the appellant has not sought to establish any such defect in the system of justice in the United Kingdom of Great Britain and Northern

Ireland. See also Minister for Justice Equality and Law Reform v Brennan Supreme Court Murray C.J. 4th May 2007 and Minister for

Justice Equality and Law Reform v Altaravicius (2006)3 I.R. 148

On behalf of the appellant it was also submitted that the learned trial judge was in error in not requiring the issuing judicial authority

to provide additional documents and information pursuant to section 20 of the European Arrest Warrant Act 2003. The section gives

power to the High Court, if it is of the opinion that the documents or information provided to it is not sufficient to enable it to perform

its functions under the Act, to require the issuing judicial authority to provide it with such additional documentation or information as

it may specify. It was submitted to the learned trial judge on behalf of the appellant that he should exercise his discretion to obtain

documents and information explaining the delay which had occurred following the appellant’s failure to attend court on the 4th June

2001 and the 25th May 2001. Such documents or information might disclose something on which the appellant could rely of in

opposing his surrender. The learned trial judge declined to exercise the discretion and I am satisfied that he was quite correct to do

so. It is quite clear that the trial in respect of the first three offences was due to proceed on the 4th June 2001, that the appellant

failed to attend and that the trial could not then proceed. The criminal proceedings in relation to the rape and indecent assault

charges were at an earlier stage: however the appellant failed to attend a preliminary hearing on the 25th May 2001 and that hearing

did not then proceed. The appellant had moved to Ireland. In these circumstances the proximate cause of the delay in respect of all

the charges has been the appellant’s own conduct. He makes no specific allegation of culpable delay against the prosecuting

authorities but relies merely on the passage of time. Thus the only evidence before the learned trial judge as to the cause of the

delay was that it was due to the appellant’s own conduct. The documents and information, which it was suggested to the learned

trial judge that he should seek, are not relevant to any issue raised by evidence as a ground of opposition to the application for his

surrender. It would be inappropriate for the documents and information in question to be sought on the basis of the appellant’s bare

assertion. To do so would be contrary to the scheme and spirit of the framework decision which underlies the 2003 Act – the mutual

recognition of judicial decisions, judicial co-operation and a high level of confidence between member states. Before the discretion

conferred by section 20 is exercised there must be something appearing on the application itself or some issue raised by the

respondent on cogent evidence which satisfies the court that it should do so. Such is not the case here.

For the foregoing reasons I would dismiss the appeal.