Supreme Court dismisses appeal against surrender order under European Arrest Warrant Act 2003.

THE SUPREME COURT

[Record No: 167/2008]

Denham J.

Kearns J.

Macken J.

Between/

The Minister for Justice, Equality and Law Reform

Applicant/Respondent

and

Charles Hall

Respondent/Appellant

Judgment delivered the 7th day of May, 2009 by Denham J.

1. This matter arises under the European Arrest Warrant Act, 2003, as amended. It is an appeal by Charles Hall, the

respondent/appellant, "the appellant", from the order and judgment of the High Court (Peart J.) on the 30th May, 2008,

which ordered that the appellant be surrendered to such person duly authorised by the United Kingdom to receive him.

2. The order relates to five offences. Two convictions under which the appellant is sought to serve sentences of

imprisonment for receiving stolen goods. Also, the appellant is accused of three offences being: (i) escape from lawful

custody, and, in the alternative, (ii) stealing a Land Rover, or (iii) receiving it as stolen goods.

3. The High Court ordered the surrender of the appellant to the United Kingdom.

4. The appellant has appealed against that order. The grounds of the appeal are:-

1. The learned trial judge erred in law and in fact in finding that the arrest of the appellant was valid.

2. The learned trial judge erred in finding that an objection to surrender based on delay cannot be considered by the Court.

3. The learned trial judge erred in law in finding that the family and personal circumstances of the appellant cannot be

factors which the Court can take into account when considering whether or not an order should be made under s.16 of the

European Arrest Warrant Act, 2003.

5. The Arrest

The first issue raised on the appeal is the arrest of the appellant. It was submitted on behalf of the appellant that the

European Arrest Warrant was executed while the appellant was being detained, having been arrested in relation to a separate

and unrelated matter. This unrelated matter has not been proceeded with by the State. It was alleged that the detention of

the appellant in Tallaght Garda Station was for the sole purpose of executing the European Arrest Warrant. It was claimed

that the State never had the intention to proceed with the unrelated matter and that the appellant's arrest and detention was

unlawful. Reference was made to The State (Trimble) v. Governor of Mountjoy Prison [1985] I.R. 550.

6. There was affidavit evidence before the High Court as to the circumstances of the arrest of the appellant on the unrelated

matter. Garda McGuinness deposed that the appellant had stated that his car had been stolen and he gave a name of Alan

Rees as the person who had taken the vehicle. Garda McGuinness spoke with Alan Rees who admitted taking the vehicle

and described where he had left it, beside Cruagh Woods. Garda McGuinness located the car and the keys. Later Garda

McGuinness took a statement from Alan Rees who outlined the circumstances of his taking the vehicle and admitted taking

the vehicle without permission of the owner. Mr. Rees also stated that he received threatening phone calls from the

appellant, threatening that if he, the appellant, did not get his car back he would kill Alan Rees. Garda McGuinness sought

instructions, which resulted in directions to prosecute Mr. Rees contrary to s.112 of the Road Traffic Act, 1961, as

amended, and to prosecute the appellant for an offence contrary to s.5 of the Non-Fatal Offences Against the Persons Act,

1997 for threats made to Mr. Rees. According to the affidavit evidence Mr. Rees was charged on the 11th November, 2007.

Garda McGuinness was contacted by Sergeant Linehan of the Garda Extradition Unit who had noticed on the PULSE

system that

Charles Hall was a victim of a crime. Sergeant Linehan told Garda McGuinness that there was a European Arrest Warrant in

existence for Charles Hall which they wished to execute. Garda McGuinness explained that they planned to arrest Charles

Hall on the 13th November, 2007, for a charge. On the 13th November, 2007 the appellant arrived in Tallaght Garda

Station at an arranged time, he was charged with an offence under s.5 of the Non Fatal Offences Against the Person Act,

1997, and he received bail to appear before Tallaght District Court. Sergeant Linehan arrested the appellant outside Tallaght

Garda Station and executed the European Arrest Warrant.

7. The High Court held:-

"In my view there is absolutely no room for the suggestion that Sgt Linehan and the Gardai at Tallaght Garda Station

conspired to produce a situation where the [appellant] would be conveniently available for arrest there on the 13th

November 2007, by concocting a charge against him so that they could arrest him and make him available to Sgt Linehan.

The fact that the charge was later dropped or not proceeded with is not of itself evidence of anything of the kind suggested

by the [appellant]. In any event, it is perfectly clear that there was no mystery about the [appellant's] whereabouts. Sgt

Linehan could easily have made his arrest by finding the [appellant] at his home address. It is a completely unwarranted and

unsubstantiated allegation of an unlawful conspiracy on the part of members of An Garda Síochána, and I reject it

completely."

8. In oral submissions counsel for the appellant said that there was no suggestion of a conspiracy by the garda. It was never

the intention to make that case. He submitted that the learned trial judge had erred in referring to an allegation of an

unlawful conspiracy.

9. I am satisfied that the submissions on the issue of the arrest lack substance. The learned trial judge had evidence before

him as to the sequence of events prior to the appellant's arrest on the European Arrest Warrant. He was entitled to rely on

the evidence, as he did, and to determine that the arrest was valid. Insofar as there was a reference by the High Court to an

allegation of conspiracy, that does not undermine the determination of the validity of the arrest.

10. While factors may be analysed in relation to an arrest and may be relevant to the legality of a detention, no factors exist

in this case so as to undermine the validity of the arrest of the appellant. Counsel on behalf of both parties submitted that

there was no conspiracy, thus this ground could not succeed in the circumstances of this case. Consequently, I would

dismiss the appeal on this ground.

11. Delay

Counsel for the appellant submitted that the relevant time for consideration ran from the commission of the offences, or at

the latest from the escape of the appellant from lawful custody in 2000, until June, 2005, when West Mercia Magistrates

Court issued the domestic warrants. The European Arrest Warrant was issued in the City of Westminster on the 1st

October, 2007. Counsel submitted that the delay clearly exists and that there has been no explanation. Counsel submitted

that this delay gave rise to a basic injustice.

12. The facts do illustrate a delay. The appellant was convicted and sentenced to 30 months imprisonment for two offences

of handling stolen goods at Shrewsbury Crown Court on the 6th March, 2000 and was sent to prison to serve his sentence.

13. The appellant has alleged that while in prison he and his family received threats from persons who stated that the

appellant owed them a significant amount of money. The appellant and his wife deposed that on the 10th April, 2000 there

was an attempt to kidnap their son, and that the persons who made the attempt said they would be back for the child if the

money was not paid.

14. On the 12th April, 2000 the appellant left the open prison unlawfully and travelled to Ireland. His wife and children also

travelled to the State.

15. On the 17th June, 2005, and 21st June, 2005, West Mercia Magistrates Court issued the warrants grounding this matter.

On the 1st October, 2007 a European Arrest Warrant was issued by a District Judge of the City of Westminster Magistrates

Court under s.142 of the Extradition Act 2003, seeking the surrender of the appellant from Ireland. The warrant was

transmitted to the Central Authority in the State in November, 2007, and the appellant was arrested on the 13th November,

2007.

16. On behalf of the appellant it was submitted that there is unexplained prosecutorial delay in this case. It was submitted

that the prosecutorial delay has prejudiced the appellant in his ability to defend himself: many names and dates have been

forgotten and it was stated that it would be impossible for him to re-create his business records. It was submitted that the

surrender of the appellant would be unjust, oppressive and/or invidious and contrary to the appellant's right to fair

procedures: that the appellant's right to a fair trial would be seriously prejudiced by the prosecutorial delay.

17. The High Court relied on The Minister for Justice, Equality and Law Reform v. Stapleton [2008] 1 I.R. 664. In

written submissions to this Court counsel on behalf of the appellant referred also to Minister for Justice, Equality and

Law Reform v. Corrigan [2007] 2 I.R. 448, where the High Court held that the duty of the High Court in matters of

extradition was to be satisfied that constitutional rights were not infringed, that the courts should have regard to the passage

of time in conjunction with all the other circumstances of the case with a view to determining if it

would be unjust or oppressive to surrender. This decision is subject to the decision in Minister for Justice, Equality and

Law Reform v. Stapleton.

18. The learned High Court judge was correct to consider and apply The Minister for Justice, Equality and Law Reform

v. Stapleton [2008] 1 I.R. 649. Stapleton states the appropriate legal principles to be applied.

19. The extradition system introduced pursuant to the European Arrest Warrant Act 2003 has established an entirely new

scheme of extradition. The Act of 2003 requires to be interpreted, so far as possible, in accordance with Council Framework

Decision 2002/584/J.H.A., on the European Arrest Warrant and the surrender procedures between Member States, 2002

O.S. (L.190) 1, "the Framework Decision". This scheme is based on mutual trust and cooperation and the mutual

recognition of judicial decisions in the States of the European Union. Consequently when a court makes a decision under the

Act of 2003, in accordance with the Framework Decision, it does so on the assumption that the courts of the requesting

state will respect fundamental rights and freedoms. Therefore, issues such as delay and the right to a fair trial are more

appropriately raised in the requesting state, if there is a remedy available in that state. There is no doubt that in the United

Kingdom there are procedures to raise the issue of delay, of prosecutorial delay, and the right to a fair trial. It is more

appropriate that these issues be raised in the jurisdiction of trial.

The Court is required to have regard to and to balance the constitutional rights of a requested person with the obligations

under the Europea Arrest Warrant scheme of the Framework Decision.

20. The High Court held:-

"It is quite clear by now that an objection based on delay is not one which this Court can regard as a ground which prohibits

surrender to the issuing state, and that any fears that the respondent has that he cannot now obtain a fair trial are matters to

be ventilated in the courts of the issuing state, and not here. This follows clearly from the judgment of Fennelly J. in

Minister for Justice, Equality and Law Reform v. Stapleton [2008] 1 I.R. 669. It would be inappropriate for this Court

therefore to examine and express any view on whether the matters referred to by the respondent could amount to a

sufficient prejudice to prohibit his trial, since if at all these will be the subject of a determination before a court in the issuing

jurisdiction."

21. There may be situations where a court in this requested State would consider the issue of a delay, it would depend on

the circumstances. However, in general, issues such as prosecutorial delay and its consequences, are more appropriately

litigated in the requesting state, which is the state of trial. This presumption is based on the existence of remedies, such as

access to judicial review or a process to review an allegation of abuse of process. It is grounded on the foundation of mutual

trust of the European Arrest Warrant scheme. It all depends on the circumstances of the case. In the circumstances of this

case the principle described in Stapleton applies and the issue of delay is a matter for the Courts in England. I would

dismiss this ground of appeal and affirm the decision of the High Court.

22. I would emphasise that no decision is made in this judgment, nor should any inference be raised, as to the issue of delay.

The matter of prosecutorial delay and any prejudice to a fair trial are matters which may be litigated in the United Kingdom.

23. Hardship in the circumstances

Counsel on behalf of the appellant, in both written and oral submissions, described hardship in the appellant's circumstances.

These included his wife and children, a foster child, an elderly mother, and an ill father.

I have sympathy for the appellant in all the matters raised by counsel. There is always hardship for a family if a person goes

to prison. However, the situation described is most unfortunate. To an extent the appellant is the author of his own

misfortune in that he escaped from lawful custody in the United Kingdom and came to this State. I am not forgetting his

description of the threats to his family, but there were other courses open to him apart from fleeing the jurisdiction. This

submission by counsel is really a plea in mitigation and it is more appropriate to be made to a trial court. In the

circumstances of this case these are not grounds upon which to refuse to surrender the appellant. Consequently I would

dismiss this ground of appeal also.

24. Conclusion

For the reasons given I would dismiss the appeal of the appellant on all the grounds of appeal.