High Court adjourns surrender application due to respondent's lack of capacity to instruct counsel under European Arrest Warrant Act.

Neutral Citation [2015] IEHC 698

THE HIGH COURT

[2015 No. 64 EXT]

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

M.T.

RESPONDENT

JUDGMENT of Ms. Justice Donnelly delivered the 11th day of November, 2015.

1. This judgment concerns the capacity of the respondent to give instructions to his solicitor and counsel in these proceedings under

the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”). The background is that the respondent was arrested on 9th

June, 2015 pursuant to a European Arrest Warrant (“EAW”) issued by a United Kingdom (“U.K.”) issuing judicial authority. The EAW

indicates that the respondent had pleaded guilty to an offence of wounding contrary to s. 20 of the Offences against the Person Act,

1861 for which he was sentenced to three years imprisonment. He was released on licence but failed to comply with the conditions of

that licence and in due course the EAW was issued for the purpose of requiring him to serve the remaining 493 days of his sentence.

2. The respondent has been remanded in custody since his arrest on foot of the warrant. At a very early stage in the surrender

proceedings, it was indicated to the High Court that he wished to consent to his surrender to the issuing state. On 23rd June, 2015,

an application under s. 15 of the Act of 2003 for an Order for surrender on consent was commenced. This application reached the

stage where the respondent gave evidence that he had been advised and understood the consequences of his return. When the

respondent was asked to sign a document recording his surrender, however, he refused to do so. The matter was then adjourned for

the purpose of fixing a s. 16 hearing in this matter.

3. Prior to the hearing of the application for surrender under s. 16 of the Act of 2003, concerns emerged in relation to his mental

health. Expert psychiatric reports were obtained by the respondent’s legal representatives from Dr. Conor O’Neill, who is a consultant

forensic psychiatrist at the Central Mental Hospital, Dundrum and visiting psychiatrist to Cloverhill Prison where the respondent was

held on remand.

The Evidence of Dr. O’Neill

His reports

4. In his first report of 16th July, 2015, Dr. O’Neill stated “I formed the opinion that [the respondent] did not meet criteria for fitness

to be tried at the time of his most recent assessment on 3rd July, 2015, due to the gravity of his acute psychotic symptoms. His

capacity to instruct counsel is likely to be impaired by his ongoing paranoid delusional beliefs. This is likely to change following

admission to hospital and appropriate treatment”. On being shown that report, the Court expressed concerns about the issue of

fitness to be tried and also the jurisdiction of the court to deal with this matter should the respondent be found to be unfit to give

instructions.

5. The case was adjourned from time to time over the summer months while a further report was obtained in relation to the

respondent. At an early stage in the detention of the respondent, a request had been made by Dr. O’Neill to have him transferred to

the Central Mental Hospital. Dr. O’Neill indicated in evidence the unfortunate reality was that, although in his view the respondent was

in need of treatment and was near the top of the list for admission, he lost priority due to other even more needy prisoners. Due to

the lack of psychiatric hospital places within the prison service, he was only transferred to the Central Mental Hospital on 21st

October, 2015.

6. In his second report dated 2nd October, 2015, Dr. O’Neill states as part of his conclusions as follows:

“14.1 Regarding Diagnosis and Current Mental State

[The respondent] has an established diagnosis of paranoid schizophrenia. This a serious mental illness and meets criteria

for a Mental Disorder as defined in the Criminal Law (Insanity) Act, 2006.

His condition is complicated by substance misuse and poor compliance with treatment. He is currently actively psychotic

and his condition at the time of the most recent assessment on 29th September, 2015, was such as to meet criteria for a

Mental Disorder as defined in the Mental Health Act, 2001.

14.2 Regarding Fitness to be Tried

I formed the opinion that [the respondent] did not meet criteria for fitness to be tried at the time of most recent

assessment on 29th September, 2015. His capacity to instruct counsel was impaired by his ongoing paranoid delusional

beliefs. He remained guarded, thought disordered and deluded. He reported a history of apparently delusional beliefs

regarding prison staff in the United Kingdom which may be influencing his decision making capacity. This is likely to change

following admission to hospital and appropriate treatment.”

7. Those reports are verified on affidavit. The minister did not seek to have the respondent assessed by a second psychiatrist as is

her prerogative; no criticism of that decision is in any way intended or implied. The minister sought to test the evidence of Dr. O’Neill

by way of cross examination. That hearing took place before me on 16th October, 2015.

The oral evidence of Dr. Conor O’Neill

8. Cross examination elicited that the respondent had given his consent for the preparation of the report in circumstances where he

understood the limits of confidentiality. Dr. O’Neill explained the screening process for persons newly remanded to prison. The

respondent was seen as a person who required psychiatric assessment for a number of reasons. It appears that he was known to the

psychiatric services within the prison system. Indeed much of his longitudinal history was taken from his previous presentations.

9. The respondent was able to provide the doctor with various information about his background and his current family circumstances.

In some of the interviews, it was very difficult to obtain information from him as he was extremely guarded, suspicious, and irritable.

10. Dr. O’Neill said that the respondent had stated on a number of occasions that he does not feel himself to be suffering from an

illness. Dr. O’Neill’s view, and that of his treating team, was that the respondent was suffering from a psychotic illness and was in

need of hospitalisation at that time. When Dr. O’Neill was asked to confirm that the respondent had been in a position to recall the

incident giving rise to the EAW, Dr. O’Neill replied that “this is highly likely to reflect a delusional belief that he has over time described

delusional beliefs relating to prison officers both in Ireland and other jurisdictions, including England, he has described delusional beliefs

that he is being persecuted by people from his own home town, by people in Dáil Éireann and a wide range of other individuals. He is

certainly able to describe these delusional beliefs.”

11. Dr. O’Neill confirmed that the respondent had told him on 3rd July, 2015 that he wished to fight the extradition proceedings and

avoid having to return to the United Kingdom. He said that the respondent had given various accounts of where he would like to stay

if he was not extradited to the United Kingdom. On 29th September, 2015, Dr. O’Neill said that he was aware that an application was

being made for him to be extradited to the U.K. but the respondent was reluctant to go into that in any detail. Dr. O’Neill was asked

by counsel for the minister with respect to delusions concerning extradition proceedings, lawyers or the courts. Dr. O’Neill stated that

the respondent had described, at different times in the recent past, his belief that the officer in the U.K. that he assaulted was a

person who had travelled to or been from his hometown and arranged for his uncle to have an accident in a road traffic accident.

Indeed, Dr. O’Neill had seen the respondent more recently on 7th October, 2015 and he elaborated on that issue. He told him that the

man was in part responsible for the extradition order being applied to him and that he wanted to cause him harm whether in Ireland or

the United Kingdom.

12. Dr. O’Neill said in relation to the capacity issue “my concern was that his capacity to instruct in relation to the extradition matter

and his reason for opposing it is coloured by a delusional belief system that incorporates persons working in the U.K. prison system,

people working in the government system.” His reasoning around matters relating to the extradition matters is significantly impacted

upon by this complicated delusional belief system “that a range of people are trying to cause him harm in a range of different places”.

13. Dr. O’Neill was then asked by counsel, considering that the grounds upon which a person can surrender to another country are

legal grounds, whether the respondent’s capacity was impaired in dealing with those. Dr. O’Neill repeated his beliefs that the

respondent’s views of the conspiracy against him was entirely delusional and that it preoccupied the respondent to a very extreme

extent. In circumstances where much of his cognition and thinking is given over to these delusional matters, Dr. O’Neill was of the

view that it would be very difficult for him to focus on the specifics of complex legal issues at that time. Dr. O’Neill also confirmed that

his opinion had changed from believing that the respondent’s capacity was “likely to be impaired” to “was impaired” in October.

14. Under continued cross examination, Dr. O’Neill confirmed that the respondent was a man who needed to be in hospital under

mental health legislation whether that be under the Criminal Law (Insanity) Act, 2006 or under the Mental Health Acts. In answer to

questions from myself concerning the extent to which his particular mental illness could be said to impair his capacity, Dr. O’Neill said

“[The respondent] is clear that he wants to oppose the extradition order. He has given various reasons for that. Partly they are due

to very understandable reasons. He has described his wish to be near and beside his family and to have access to them and on the

other hand he gives reasons that are delusional and that do not make sense. So, his capacity is certainly impaired by these beliefs”.

15. Dr. O’Neill then went on to say “in my opinion, his capacity is impaired in relation to decision making around the extradition process

because he is deluded as to the reason why the extradition is going ahead. He has told me of his belief that it is being driven, that is

what he told me on the 7th October, this is being driven by the specific officer that he assaulted in the U.K. That he may be brought

back to the U.K. to be harmed. These are delusional beliefs and not based in reality but these are in part, as I understand, the reason

why he is instructing his counsel as he is. On the other hand, there are perfectly understandable reasons that are also contributing to

his decision to instruct counsel in the way he is. They are a combination, as I would see it, of understandable and real beliefs and

delusional beliefs.”

16. Dr. O’Neill also acknowledged that his assessment of fitness was different to the more usual fitness to plead issue in criminal law.

He said that he understood the test as one in terms of capacity to instruct counsel to oppose the extradition order. Dr. O’Neill stated

that the respondent is not at the lower end of mental illness. He is severely unwell and has been for an extended period. As the Court

had run out of time to deal with the issue on the day, the case was put back to 2nd November, 2015 for continued hearing with a

specific focus on the test to be applied in assessing capacity to instruct counsel in an extradition case and also the powers of the

court in an extradition case following on from a finding of unfitness to plead.

The test for incapacity

17. Counsel for the applicant and the respondent made helpful written and oral submissions on the test for incapacity. By and large,

there was no disagreement as to the test to be applied by the court; the disagreement lay in how it should be applied to the

evidence in this case. Both parties relied upon the decision of the High Court in Nolan v. Carrick [2013] IEHC 523 where Dunne J.,

having reviewed Irish and English authority and the presumption of capacity, propounded the following test at para. 117:- “was the

defendant’s cognitive ability impaired to the extent that he did not sufficiently understand with the assistance of such proper

explanation from legal advisors and such experts as the nature of the case may have required, the issues on which his decision was

likely to be necessary, the nature and effect of the decisions made in the course of the litigation, and the consequences of the

decisions made by him for the litigation at that time?”

18. Although EAW proceedings stem from accusations of criminal offences or a conviction on criminal offences, they are not

considered criminal proceedings in this jurisdiction. As has been stated by the Supreme Court in Attorney General v. Parke [2004]

IESC 100 they are proceedings which are sui generis in nature. The court has an inquisitorial role in the proceedings. Insofar as they

are not an exercise of the administration of criminal justice in this jurisdiction, the proceedings should be viewed as taking place on

the civil side.

19. The High Court, in two cases concerning the same respondent (Minister for Justice and Equality v. B.H. [2014] IEHC 403 and

Minister for Justice and Equality v. B.H. (No. 2) (ex tempore, 31st July, 2015) had previously dealt with issues of “fitness to plead” in

EAW cases. The High Court had on each occasion identified ability to instruct lawyers in the proceedings as crucial to any

determination and had indicated that the test under the Criminal Law (Insanity) Act, 2006 was not the appropriate test. In B.H. (No.

2), the High Court stated at para. 44: “[i]n circumstances where the respondent is facing loss of his liberty through the process of

surrender, it is appropriate, where the interests of justice require, that enquiry is conducted into the ability of the respondent to

comprehend what is going on in the proceedings, to make judgments with respect to the various aspects of the proceedings in

respect of which his judgment is required or was required and to give appropriate instructions.”

20. Therefore, the test for capacity is one applicable in civil proceedings. The test identified by Dunne J. in Nolan v. Carrick is a

distilled, yet detailed, version of the tests identified in the two B.H. cases. In the interest of consistency of approach to questions of

capacity, it is appropriate to adopt the Nolan v. Carrick test for capacity as that which applies to a case under the EAW procedure.

The application of the test of incapacity

Submissions

21. At issue is whether Dr. O’Neill’s evidence relating to capacity passes the test for capacity as set out above. Counsel for the

minister submitted that the following were relevant considerations; the respondent’s awareness that the U.K. sought his surrender to

serve a custodial sentence; that he wished to oppose his surrender to the U.K.; that he wanted to serve his time in a prison in

Ireland; that he could provide extensive details of the circumstances in which he came to be serving the sentence in the U.K.; that

he understood the nature and purpose of the reports being prepared by Dr. O’Neill and had no difficulty providing consent; that he

was able to give detailed family history including details of background psychiatric information; that he was open about his non-

compliance of medical treatment; that he was clear as to the fact that he did not want to be in prison and would like to go home but

would be prepared to go to a hospital; that the delusional system that he portrayed was a widespread one and that the U.K. officer

had been in part responsible for “the extradition order being applied for”; and that this officer wanted to cause him harm whether in

Ireland or in England.

22. In light of the evidence of Dr. O’Neill, the relevant parts of which have been set out above, counsel submitted “there is no

suggestion that he has delusions with respect to the extradition proceedings themselves (as opposed to the motivation for the

request for surrender) or that it is not possible for him to focus on the specifics required of him, even if he has delusions as to why his

extradition is sought”. Counsel submitted that, even if his delusional belief with respect to the motivation for surrender are “in part”

the reason why he is instructing his lawyers to defend the proceedings, the evidence is that there are also perfectly understandable

reasons that are also contributing to that decision. In counsel’s submission, notwithstanding these delusions, his entitlement to be

heard in opposing surrender for perfectly understandable reasons or understandable reasons and beliefs, may be vindicated by lawyers

acting on his behalf.

23. Counsel for the minister also submitted that there was no evidence that the respondent is not in a position to provide factual

information that might be relevant to advancing any particular legal defence to the application for his surrender. While it was

accepted that it might arguably be different if a person wished to consent to surrender in a delusional belief as to the consequences

of that surrender, there was no evidence here that the delusional beliefs affected the ability to instruct counsel to defend the

particular circumstances.

24. Counsel on behalf of the respondent submitted that many of the points submitted by the minister in support of her contention

that the respondent had capacity, concerned matters not directly related to the extradition, such as family. It was submitted that

while the respondent was aware he was not taking his medication, this was not consistent with the finding of capacity. In my view

that is correct, the respondent clearly lacks insight and his failure to appreciate that he is mentally unwell may be viewed as a

symptom of his mental ill health.

25. Counsel for the respondent submitted that the key issue was that while the respondent understands that his surrender to the

U.K. is sought, he has a false basis for understanding why that is so. His reasoning and ability to make decisions as to the course of

the proceedings and to instruct his lawyers are directly influenced by his delusional beliefs. Counsel referred to the decision of the

English Court of Appeal in Masterman-Lister v. Brutton & Co. (Nos. 1 and 2) [2003] 1 W.L.R. 1511 which was cited by Dunne J. in

Nolan v. Carrick. A helpful dictum from that case is cited as follows: “[c]apacity requires an ability to make and communicate, and

where appropriate give effect to, all decisions required in the context: this in turn requires the ability to recognise a problem, obtain

and receive, understand and retain relevant information, including advice; to weigh the information (including that derived from

advice) in the balance in reaching a decision, and communicating that decision. In short, it requires an ability to understand the

transaction when it is explained by advisors. Although the court should have regard to the complexity of decisions under consideration

it should not have regard to its own valuation of the gravity of those decisions because it is not for the court to decide in a non

medical treatment case, what is or is not serious in the light of the person before it.”

26. Counsel for the respondent also took issue with the suggestion that EAW surrender applications are dealt with on technical legal

defences only. Counsel pointed to s. 37 of the Act of 2003 which explicitly contemplates that non-technical matters may be relied

upon. She highlighted that the instructions from the respondent so far indicate that he says that while he pleaded guilty to the

offence, he did not have the benefit of any legal advice. It is submitted that while the ramifications of this for the purposes of s. 37

could be explored, it is difficult to see how that could occur in circumstances where the respondent himself is not able to judge

whether or not it is in his own best interest to make those arguments. Other tactical decisions may be made by a respondent in a

case. Furthermore, the respondent’s counsel brought to the attention of the court that the respondent, despite having sat in court

and heard the arguments, believes that his transfer to the Central Mental Hospital has been brought about by the application made by

his own lawyers in the proceedings.

Determination

27. As Dunne J. has set out in Nolan v. Carrick, the question of capacity must be considered in the context of the particular

transaction at issue in the proceedings. The court, by virtue of the circumstances of that case, had been required to look back at a

particular transaction that had taken place in the course of those legal proceedings. It was, therefore, necessary to look at the

decisions made in the context of those proceedings by that defendant.

28. I am of the view that I am also entitled to have regard to the surrounding circumstances in this case regarding the decision I

have to make. I do have regard to the fact that this is a man who initially appeared willing to consent to his surrender but, although

prepared to tell the court he wished to consent to surrender, was not prepared to sign any documentation to that effect. In

hindsight, this reluctance may have been influenced by his wider conspiratorial beliefs which, on the basis of the uncontested

evidence of Dr. O’Neill, are delusional in nature. Viewed in this light it demonstrates an impact on how he was prepared to deal with

these matters as his agreement to surrender was affected by his delusions.

29. That incident is not in any way determinative of the issue. It is more an observation that appears to corroborate the evidence

that I have heard in this case. That evidence is to the effect that the respondent is a man who is severely mentally unwell with a

diagnosis of paranoid schizophrenia and that he has conspiratorial delusions that impact on his ability to deal with this case.

30. A diagnosis of mental ill health in and of itself does not negate capacity. There is a presumption of capacity. Those suffering from

mental ill health, including delusions, may have a capacity to instruct lawyers and generally to take certain decisions as to where their

own best interest lies. The court, when dealing with issues of capacity, must always be scrupulous respect the autonomy of the

person appearing before it. Each person, acting with capacity, is entitled to make decisions and judgments that on an objective basis

may not seem to be in his or her own best interests. It is only on the test outlined above that the court is entitled to hold that a

person lacks capacity.

31. I have taken into account that the respondent also has quite rational and understandable reasons for refusing surrender. In

general, it can be observed that respondents to applications for extradition may decide to consent to surrender for various reasons,

including an understanding or indeed a hope that they will obtain greater benefits in the issuing state if they consent to surrender, be

it bail, reduced sentence or early release. On the other hand, respondents may take a view that they would prefer to remain on bail in

this jurisdiction for as long as possible or, if in custody, they may prefer to serve the sentence already imposed, or a sentence that

may be imposed, in what they may perceive as the more advantageous (to them) prison conditions in Ireland. However, this

respondent’s ability to fully understand the consequences of his decision to oppose surrender is impaired because that understanding

is affected in a very real sense by his delusional belief relating to the U.K. prison officer.

32. As stated above, the Court is conscious that each individual is entitled to autonomy and the freedom to make good or bad

decisions about their own cases. In this case, objectively speaking, it could be a good decision to stay in this jurisdiction, close to

family and to a psychiatric service that has a familiarity with him. It might also be a bad decision as it is possible that he might even

now obtain an earlier release date in the U.K. than might apply if he is detained here. Neither decision is for this Court to make on his

behalf. The respondent is the only person who can make that decision.

33. In the present circumstances, however, the respondent’s delusions touch and concern an important issue relating to the

extradition proceedings. I accept that he has a belief that the extradition proceedings are motivated by the desire of the U.K. prison

officer to harm him and that he has a belief that he will be so harmed if surrendered. On the basis of the evidence of Dr. O’Neill, I

accept that these are delusional beliefs which are the product of his severe mental illness. Unfortunately for the respondent, his

capacity to understand the consequences of his decision to oppose surrender is impaired by his delusional beliefs. His understanding

of the consequences is affected by those delusional beliefs. The apparent rationality and indeed, objectively speaking, other good

reasons for resisting surrender, do not demonstrate that he is not cognitively impaired. His ability to understand consequences of his

decisions are impaired by his delusional beliefs as to the desire of the U.K. prison officer to do him harm.

34. In those circumstances, his ability is impaired to the extent that, even with proper explanation, he does not sufficiently

understand the consequences of the decisions made by him for the litigation at this time. Therefore, on the evidence before me, the

respondent has a cognitive impairment to the extent that he does not sufficiently understand with the assistance of such proper

explanation from legal advisors and other experts the consequences of the decisions made by him in respect of this extradition. In all

the circumstances, I am quite satisfied that the respondent’s ability to make those decisions as to consequences for his surrender is

impaired by reason of the particular delusions he has stemming from his paranoid schizophrenia, to the extent that he no longer lacks

legal capacity.

The consequences of the finding of lack of capacity

35. Again, both parties have made helpful submissions in relation to the power of the court where a finding of lack of capacity is

made. The starting point is s. 13(5) of the Act of 2003. Section 13(5)(a) provides that the High Court shall, if satisfied the arrested

person is the person in respect of whom the EAW has issued, remand the person in custody or on bail (and for that purpose the High

Court shall have the same powers in relation to remand as it would have if the person were brought before it charged with an

indictable offence).

36. The High Court must fix a date for the hearing of the s. 16 matter within a period of 21 days from the first appearance of the

person before the court on arrest. The High Court is not bound to determine the issue as to whether an order for surrender should be

made on that date as s. 16(1) provides that the High Court may upon such date as is fixed under s. 13 or such later date as it

considers appropriate make an order for the person’s surrender. Section 16(2A) also provides for the power of the High Court to

remand the person before it in custody or on bail where no order for surrender is made. That subsection also states that the High

Court shall have the same powers in relation to remand as it would have if the person were brought before it charged with an

indictable offence.

The Criminal Law (Insanity) Act, 2006

37. Under the Criminal Law (Insanity) Act, 2006 (“the Act of 2006”), the court has specific powers to deal with an accused person

who is found unfit to be tried. In particular, under s. 4(3) of the Act of 2006, the court can either commit a person to a specified

designated centre if the person is in need of in-patient treatment or make such order as the court thinks proper in relation to the

accused person for outpatient treatment in a designated centre. Under s. 4(5)(c), if the determination is made by a court other than

the District Court, the proceedings may be adjourned until further order and the court has the option to commit to the specified

designated centre or make the appropriate order for out-patient treatment.

38. Counsel for the minister pointed to s. 13(5) of the Act of 2003 and the reference therein to the power of the court to remand the

respondent. It is the submission of the minister, with which counsel for the respondent agrees, that the limitation set out in s. 13(5)

by the words “for this purpose” is an indication that the entire statutory regime set out under the Act of 2006 does not apply to

proceeding under the Act of 2003. Counsel for the minister submitted that to hold otherwise would be unworkable within the statutory

framework as set out at present. As an example, the powers of the review board are centred on a determination as to whether the

respondent is unfit to be tried in the context of criminal proceedings.

39. I agree with the submissions made to me concerning the applicability of the provisions of the Act of 2006. The limitation of the

powers of remand have been made clear by the use of the phrase “for that purpose”. The powers of remand of the High Court under

the Act of 2003 are for the purpose of ensuring the attendance of a requested person before the court for their s. 16 hearing and his

or her availability for any surrender order that may be made in the particular proceedings.

General power to adjourn

40. Counsel for the minister submitted that the High Court has a general power to adjourn the proceedings under s. 16(1) of the Act

of 2003. Counsel referred to the wide variety of reasons for which this court has granted adjournments. These have included physical

health issues on the part of a respondent. It was submitted on the same basis that the High Court has a power to adjourn by

reference to mental health issues. The respondent asserted that where a finding that there is a lack of capacity to deal with the

proceedings, the court should either refuse to surrender the respondent or strike out the application for surrender or make no order.

41. In relation to the submission that the court should refuse to surrender the respondent, it seems to me that refusal to surrender on

this ground at the present time at least, would be incompatible with the High Court’s duty under s. 10 of the Act of 2003, which

requires that a person shall, subject to and in accordance with the provisions of the Act, be arrested and surrendered to the issuing

state. Section 16(1) clarifies the circumstances in which an order for surrender may be made, thereby limiting the grounds for refusal

of surrender. Lack of capacity, per se, is not a ground for refusal of surrender. That is not to say that a situation may not exist, or

may not be reached, where the surrender of a person is prohibited by s. 37 of the Act of 2003 as being prohibited by a provision of

the Constitution or of the European Convention on Human Rights (“ECHR”). At issue at the present time is whether there is a power to

adjourn his case where he has impaired capacity to instruct his lawyers.

42. In support of the contention that this court has no power to adjourn the matter where a person is incapable of giving

instructions, the respondent has relied on the case of O’C. v. The Judges of the Dublin Metropolitan District and the Director of Public

Prosecutions [1994] 3 I.R. 246. The decision in this case involved circumstances where an issue arose prior to the preliminary

examination of an indictable matter in the District Court as to the capacity of the applicant to follow the proceedings.

43. The Supreme Court held at pp. 251-252 in O’C. that “[a] preliminary examination pursuant to the Act of 1967 is clearly […] a

judicial exercise of considerable importance in a criminal matter to the accused person, as well as to the public. It is the only

method by which, in the absence of a waiver of it by an accused person fully informed and capable of waiving it, a person can be

put on indictment in any court other than the Special Criminal Court. Under those circumstances it is quite clear in my view that it

would be constitutionally quite impermissible that such a proceeding could go forward in circumstances where a person through no

fault of his own was incapable of following the proceedings as they went and of giving instructions in regard to the rights which an

accused person has in such a preliminary investigation. That constitutional impermissibility of such a proceeding outweighs all

considerations that have been put forward in my view as to possible benefits (and they are only possible there being alternative

disadvantages also a possibility), arising from the postponement of the issue. In order to postpone the trial of the issue a judge of

the District Court will be asked or directed to carry out a preliminary investigation in the knowledge that it was quite likely that the

accused person who would be very importantly affected by it was incapable of understanding it or following it. Such a procedure is

in my view quite inconsistent with the Constitution and as such can not be permitted.”

44. In the particular circumstances of that case, the Supreme Court indicated that what should happen was that the matter be

returned to the District Court, the judge to carry out an investigation as to whether the person was fit to plead and if he was, the

matter should proceed as normal. If the conclusion was reached that he was not fit to plead, then the judge had to decline to enter

upon the preliminary examination and should make no order of any description with regard to the further attendance of the accused or

with regard to his custody.

45. Counsel for the respondent submitted that, given the lacuna in the Act of 2003 as regards to explicit provisions regarding a

situation where a respondent is found to be incapable of giving instructions, the court should adopt the position taken by the

Supreme Court in the O’C. case. It is submitted that by analogy with O’C., which prohibited any form of judicial proceedings taking

place when an accused was incapable of following the proceedings or giving adequate instructions, it follows that it would be

incompatible with the constitutional right to fair procedures to allow an application for surrender to proceed when a respondent is

suffering from a similar incapacity. It was submitted that as the conclusion of the Supreme Court was that no order should be made of

any description, that the application for surrender should be dismissed at this stage.

46. The respondent’s counsel took issue with the contention that the proceedings should be adjourned generally or more particularly

adjourned to a specific date to await the outcome of the treatment that the respondent is undergoing. Counsel submitted that the

appropriate course is to let any issue of involuntary incarceration be decided under the relevant provisions of the Mental Health Act,

2001. It was submitted that the respondent should not be left with the surrender proceedings hanging over him in the particular

circumstances of the case.

47. Counsel for the respondent submitted that where there is no current intention to surrender, due to the impossibility of the

proceedings continuing due to the respondent’s incapacity, the provisions of the Act, which are designed to further the purpose of

that system and which include the power to remand, cannot be left hanging over the respondent. More specifically, the powers of

remand and arrest can only be for the purposes of surrender under the Act of 2003 and the Framework Decision. It was submitted

that if there is no current intention to surrender by reason of the incapacity, continued remand and detention would become unlawful

and indeed unconstitutional. Reference is made to the case of Ojo v. Governor of Dóchas Centre & Ors [2003] IEHC 622 in which it

was confirmed that the power under the Immigration Act, 1999, as amended, only arose so long as there was a current intention to

deport.

Analysis and determination by the court

48. The decision of the Supreme Court in O’C. v. The Judges of the Dublin Metropolitan District and the Director of Public

Prosecutions established that it is constitutionally impermissible to engage in a judicial exercise of considerable importance in a

criminal matter in circumstances where the accused is incapable of participating in the proceedings. The particular lacuna identified in

O’C. has been rectified with the passage of the Criminal Law (Insanity) Act, 2006. In those circumstances, the court has, as

previously outlined, powers to adjourn the proceedings and make appropriate orders as to committal or out-patient treatment.

Moreover, the court of trial, be it the District, Circuit or Central Criminal Court, has a power to adjudicate as to whether or not the

accused person did the act alleged and if the court is satisfied that there is a reasonable doubt as to whether the accused did the

act alleged, the court must should order the accused to be discharged. (See s. 4 ss. 8 of the Act of 2006).

49. That power of adjudication is designed to be in ease of a person accused of a criminal offence who, on the evidence before the

court, could never be convicted, but who is not capable of participating in a trial that would reach such a conclusion. Section 4 (ss.

8) is presumed constitutional. The process that the court embarks upon under that subsection can be distinguished from the process

involved in O’C.. That was a preliminary examination, then a required step in every criminal proceedings and one of importance to an

accused person. It was in those circumstances that it was constitutionally impermissible to have that constituent, although

procedural, element of any criminal trial be held without the participation of the accused. The new provision under the Act of 2006 is

exceptional, coming about specifically because of the incapacity of an accused and designed to assist the accused.

50. In the present case, there can be no question of the court being in a position to hear the s. 16 application. That is a hearing that

can only take place when the respondent has capacity in the sense outlined above. The issue is whether the court is entitled to

adjourn the matter pending treatment of the accused person. This is of particular importance having regard to the fact that he is in

custody. It must be acknowledged that circumstances can arise where a respondent is unable either to attend court, or attend with

sufficient ability to instruct counsel, due to physical ill health. Such a person may in fact be in custody. In those circumstances, the

court retains a power to make a continuing remand, either on bail or in custody, for the purpose of facilitating treatment, which will

have as its result the ability of the respondent to participate in the proceedings.

51. Physical ill health may differ from mental ill health in that a respondent may be able to instruct his or her legal advisors as to his or

her circumstances. Indeed, the respondent may desire to have the adjournment. However, physical ill health could mean in a given

case, for example, where an injury is perhaps recent and the person is undergoing treatment by way of surgery or otherwise, that a

respondent’s capacity to instruct lawyers is non-existent or significantly curtailed. In those circumstances, it would appear

uncontroversial that the court retains a power to remand the case further for the purpose of fixing a further hearing date. Such

further date can be fixed immediately but more usually it may be fixed with a view to receiving an update on the condition of the

respondent and getting information as to when the case can proceed. Physical ill health and mental ill health should not, as a matter

of routine, be treated as requiring a different approach. It is the ill health of a particular person that is at issue and not the root of

the reason for the ill health. In the case of an adjournment for physical ill health reasons, it is not and could not be submitted that

this means there is no longer an intention to surrender. It is difficult to see why the mental ill health of a person amounts to evidence

of lack of intention to surrender.

52. I have considered case the Ojo decision upon which counsel for the respondent relies. At issue there was s. 3(1A) of the

Immigration Act, 1999, as amended, which provided that a person subject to a deportation order may be detained in accordance with

the provisions of the Act “for the purpose of ensuring his or her deportation from the State.” In my view, the Ojo decision can be

distinguished from the facts at issue here. In Ojo, there was no court process in being; the power of detention was given by the Act

for a particular purpose, i.e. to give effect to deportation. On the facts of that case, no deportation could take place until the

minister gave a decision on an application for residency by virtue of the applicant’s Irish born child. There was then, in the words of

the High Court (Finlay Geoghegan J.), no “definite or concluded intention to deport.”

53. In the present case, the remand in custody is for the purpose of enabling a s. 16 hearing to be held. That was the purpose of the

initial remand and it has remained the purpose of all of the remands. The power to detain in Ojo was for the purpose of deportation –

there had to be a definitive or concluded intent to deport. On the other hand, a remand (whether in custody or on bail) under s. 13

and s. 16 of the Act of 2003 is to enable a s. 16 hearing to be held.

54. There is no indication in this case that the U.K. authorities no longer seek the surrender of the respondent. It is incumbent upon

the High Court to give effect to that request for surrender provided such surrender is not prohibited under the terms of the Act of

2003. The central authority has a lesser role to play but in so far as it is relevant, there is an intention on the part of the central

authority to ensure that the provisions of the Act of 2003 are applied and that where not otherwise prohibited that surrender be

ordered.

55. What has occurred here is that the respondent is lacking capacity to take part in the surrender application. His ill-health has

affected the ability to hold a hearing into his surrender but it has not affected the current intention to hold such a hearing. He is

being treated at present and the Court had been told that 2-3 months of in-patient care would be necessary before a significant

improvement would be seen. That is undoubtedly a significant length of time for a person to be remanded in custody but it is not an

altogether unusual length of time in the context of the type of adjournments that this court is often asked to grant so that persons

can, even where in custody, prepare their cases.

56. In my view, the High Court has, by virtue of the Act of 2003, a power to adjourn the hearing of a s. 16 (or s. 15) application.

That power includes a power to remand the person in custody or on bail. The power to adjourn envisages remands for a variety of

reasons, perhaps relating to the inability of a case to proceed due to lack of time for instructions, lack of time for the gathering of

evidence, or ill health of a respondent. Ill health can, and does, include mental ill health. Therefore, even though the respondent has

a present lack of capacity to give instructions, there is the possibility and power to remand the proceedings to allow for a period of

treatment.

57. The period of remand must only be for the time period indicated as necessary to provide treatment to the respondent. If there

was no likelihood of recovery, or indeed if the likelihood of recovery was only within a timeframe that would be excessive (by

reference to its inherent length or by reference to the length of the sentence for which a respondent is due to serve in the issuing

state or indeed likely to serve in the issuing state), then the remand in custody would cease to have the necessary causal link to the

application for surrender. In those circumstances, the remand in custody would cease to be for the purpose set out in the Act of

2003 as amended. The situation in this case does not demonstrate the unlikelihood of recovery or that such recovery will only occur

within an excessive period of treatment. Neither of those situations arises at present in this case. In those circumstances, I hold that

I am entitled to adjourn this case. I will remand him in custody to a date to be agreed with counsel but which is to be no later than

the three month period indicated as sufficient for his treatment. I will observe, however, that in future cases the State may have to

be in a position to provide treatment within a reasonable period of time as otherwise the period for an adjournment might be

considered excessive. In this case, by the time the issue was actually heard by the Court, the respondent was already in treatment.

Further Powers of the High Court

58. The High Court, by virtue of its duty and power to enquire into any application for surrender, and also by virtue of its inherent

jurisdiction to control the processes of the court, is entitled to take any necessary steps to assist a respondent who may find him or

herself experiencing a lack of capacity to instruct lawyers. In any application for surrender there are, what may be termed, the more

usual legal matters that the court has to consider under s. 16 of the Act of 2003. Examples are issues such as correspondence, the

format of the warrant and indeed the issue of trial in absentia under s. 45 of the Act of 2003. On this last point, I note the concern

raised by counsel for the respondent as to the respondent’s present instructions that he had no legal advice at the trial.

59. I am satisfied that I have jurisdiction to, and that it is appropriate to, examine these s. 16 matters, in the absence of the

respondent but in the presence of his lawyers. Furthermore, and in ease of the respondent, I propose to exercise my powers under s.

20(1) of the Act of 2003 to ask at this juncture of the U.K. judicial authority to indicate whether he was legally represented at the

time he entered his plea of guilty into this matter. In light of the situation which has arisen regarding capacity to instruct, the

information I have is not sufficient to enable me to carry out my functions.

60. This enquiry is, naturally, without prejudice to the respondent’s right to re-open matters on recovering his capacity to instruct,

should I find that surrender is not prohibited. I propose to conduct this enquiry, in his absence, at an early date in advance of the

date set for the remand of the respondent. Should the Court find that his surrender is indeed prohibited by any of the matters set out

in s. 16, his surrender will be refused and he will be released from custody. This in no way interferes with his right to oppose surrender

or indeed his right to surrender under s. 15. As regards the latter, it should be recalled that the High Court has a supervisory

jurisdiction even where a person consents to surrender.

61. In summary, the Court will exercise its powers of enquiry to consider whether a ground or grounds exists which would prohibit the

surrender of the respondent. This will be conducted in the absence of the respondent who does not have capacity to participate. It

will be in the presence of his lawyers. It is without prejudice to his right to have all s. 16 issues considered afresh if and when he

acquires capacity.

Conclusion

62. For the reasons set out above, I am satisfied that the respondent lacks capacity to participate in the s. 16 application for his

surrender to the U.K.. I am satisfied that I have power to adjourn the s. 16 application to permit him undergo treatment and I do so

adjourn in the circumstances of this case. I also have the power to make enquiry as to whether there are legal grounds apparent from

the papers to show that his surrender is prohibited. In order to facilitate the enquiry I intend to carry out, I am exercising my power

under s. 20(1) of the Act of 2003 to ask the U.K. issuing judicial authority whether the respondent was legally represented when he

pleaded guilty and was sentenced in this matter.