THE SUPREME COURT
Record No. 224/2014
Minister for Justice and Equality
Record No. 225/2014
Minister for Justice and Equality
Judgment delivered on the 25th day of June, 2015, by Denham C.J.
1. The appeals brought on behalf of Barry McArdle and Kenneth Brunnell were heard together, and a single set of written submissions on behalf of both of them was filed with the Court. Robert Barron S.C., with him, Ann-Marie Lawlor B.L., appeared for Kenneth Brunnell, and Mr. Barron S.C. moved the opening oral submissions. Mr. Patrick McGrath S.C., with him Ronan Kennedy B.L., appeared for Barry McArdle, and Mr. McGrath made the closing submissions. Mr. Remy Farrell S.C., with him Siobhán Stack S.C., appeared for the Minister for Justice and Equality in both appeals, and filed a single document of written submissions in relation to both appeals.
2. Barry McArdle and Kenneth Brunnell are referred to collectively as “the appellants”. The Minister for Justice and Equality is referred to as “the Minister”.
3. The appellants are the subjects of European arrest warrants ordered on the 6th July, 2011, in the Netherlands by the Public Prosecutor in Amsterdam, Mr. W.E. Woudman. Both appellants are sought for the prosecution of the offence of murder.
4. On the 28th March, 2014, the High Court (Edwards J.) ordered the surrender of the appellants.
5. A certificate permitting an appeal to this Court was issued on the 28th March, 2014. The points of law certified as involving points of law of exceptional public importance are as follows:-
(ii) If so, is the High Court entitled to presume that the domestic warrant has been the subject of independent judicial oversight or scrutiny for the purpose of a s. 16 hearing?
(iii) If the answer to questions 1 and 2 is yes, was the High Court correct in concluding that the presumption was not rebutted on the evidence in the present case?
6. The facts were stated in the judgment of the learned High Court, which I adopt and set out. In the judgment delivered on the 21st February, 2014, in relation to Barry McArdle, the learned High Court judge stated:-
The respondent does not consent to his surrender to the Netherlands. Accordingly, this Court is now being asked by the applicant to make an order pursuant to s.16 of the Act of 2003 directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him. The Court must consider whether the requirements of s.16 of the Act of 2003, both controversial and uncontroversial, have been satisfied and this Court’s jurisdiction to make an order directing that the respondent be surrendered is dependent upon a judicial finding that they have been so satisfied.”
Keith Francis ENNIS
born in Dublin on August 5th, 1979.
Research has shown that the crime was committed within the period of February 17, 2009 until February 24, 2009
The identity of Barry Mc Ardle became known from an investigation.
The suspicion of McArdle consists in the following:
• He has stayed in the location which may be considered as the scene of the crime;
• He has probably made use of one of the two telephone numbers which are directly involved in the crime;
• He is directly related to the other suspects of this offence;
• Forensic traces;
• Statements that the suspect had committed the crime.
There is no reason, upon a consideration of the underlying facts as set out above, to believe that the ticking of the box relating to ‘murder, grevious bodily injury’ was in error.”
(i) Has a decision been made to charge (indict) the requested person? If so is the charge (indictment) reflected in any summons, indictment or other formal document? If it has please provide a copy of this document.
(ii) If a decision to charge (indict) the requested person has been made, does this mean that a decision has also been made to put the requested person on trial?
(iii) Does a decision to put the person on trial have to be made separately from the decision to charge (indict) him/her and, if so, has a decision been made in this case to put the person on trial?
It would also be helpful if you could provide any other information that you feel might be useful in addressing this issue.”
As you will see, mr. McArdle has authorized a Dutch solicitor, mr. Rammelt, to hes [sic] defence. I can also confer that mr. Brunell also has a Dutch solicitor, mrs. Bouwman.
These summonses commanded the person summoned to appear before the District Court of Amsterdam ‘as defendant on Wednesday 28 March 2012, at 13:30 hours, at the court session of the Full-Bench Criminal Division which will be held at the District Court, [Arrondissementsrechtbank], Parnassusweg 220, Amsterdam, in order to stand trial in respect of the charge set forth below’.
The charge set forth in each instance was in terms that:
‘he at some time in the period from 17 February 2009 to 24 February 2009 inclusive in Rotterdam and/or in Mijdrecht and/or elsewhere in the Netherlands, together and in concert with another or others, at any rate alone, intentionally and with premeditation, took the life of K. Ennis, as the defendant and/or (one or more of) his perpetrator(s) with that intent and after calm consideration and careful deliberation stabbed and/or cut said Ennis with a knife, at any rate with a sharp and/or pointed object, one or several times in his body, causing the death of said Ennis.
(Section 289 Dutch Criminal Code)’”.
12. It appears that difficulties have arisen out of the different legal systems in the issuing Member State and the executing Member State. The learned trial judge addressed this matter at p. 54 of his judgment, as follows:-
In order to be in a position to draw the correct inference(s) it is necessary for the executing judge to have at least a rudimentary understanding of how the criminal justice system in the issuing state works, and some general understanding of the rules of criminal procedure in the issuing state. It may sometimes be necessary to delve more deeply into some aspects of the procedural history of a case than into others, and it may sometimes be necessary to seek additional information on more than one occasion. It will always depend on the circumstances of the case.
Accordingly, when an executing judicial authority states that it needs additional information to enable it to perform its function it is entitled to expect that such a request will be received respectfully and acted upon, if it is possible to do so, in accordance with the issuing judicial authority’s duty to afford mutual recognition to the executing judicial authority’s decision in that regard. Mutual recognition is not a one way system that only governs judicial decisions and communications emanating from the issuing state. It is a reciprocal obligation also governing judicial decisions and communications emanating from the executing state.
It is a matter of particular concern that in response to a straightforward request by this Court for additional information to assist it in establishing the facts in regard to the procedural history of the case, and without the Court having expressed any view whatsoever on the merits or otherwise of the objection that it was considering, that the issuing judicial authority should conclude that, simply by virtue of such a request being made at all, the executing judicial authority had in some fashion pre-judged the substantive issues before it; and, moreover, that it proposed to engage in some form of extra-territorial judicial review of the actions of the Dutch courts and/or prosecuting authorities. That simply was not, and is not, the case, and this Court is at a loss to understand how on any interpretation of the applicant’s correspondence on behalf of the executing judicial authority such a view could reasonably have been arrived at.
This Court is prepared to accept that there has been some level of genuine misunderstanding on the part of the issuing judicial authority, possibly due to the language barrier between us and lack of familiarity with each other’s laws and procedures, particularly where on one side there is a civil law jurisdiction and on the other side a common law jurisdiction, and also on one side an inquisitorial system and on the other side an adversarial system.
Indeed, it now seems likely that at least part of the misunderstanding may be due to the fact that, if I understand Professor Dr. Strijards correctly, only prosecutors are competent before the Dutch courts to give the court guidance as to Dutch law. I have no reason to doubt that that is so. However, this Court was not seeking interpretation of the law, merely a description of it - a fine distinction, perhaps. A more significant point is that the explanation that this Court sought as to Dutch law was (a) requested from a Dutch prosecutor i.e., the issuing judicial authority himself, and (b) it was never intended to be used before a Dutch Court, but rather before the Irish High Court where the Dutch rules of evidence and procedure do not apply. To the extent that the prosecutor’s attention was drawn to the textbook in question, it was thought that that might be of possible assistance to him in circumstances where this Court’s reasonable working assumption was that most academic commentary on the Dutch criminal justice system was likely to be in the Dutch language rather than in English. Moreover, it was expressly stated that no regard would be had to it unless both parties were agreeable, or at least one party had adduced satisfactory evidence in verification of its contents and confirming the accuracy thereof.
If, as I am prepared to accept, there has indeed been a genuine misunderstanding, it only serves to emphasise the need for trust and confidence; such that, where a judicial authority on one side has indicated that it needs additional information, that request will be respected and acted upon by the judicial authority on the other side, even if that need is not readily apparent or understood by that other judicial authority. Moreover, this Court would venture to suggest that if the request is not understood, or, as in this case, is considered to be insufficiently specific, the appropriate response ought to be respectful engagement and a rejoinder requesting some explanation as to why the information is required, and/or a recasting of the request in more specific or closely focused terms, rather than expression of indignation.
Be all of that as it may, the second affidavit of Professor Dr. Strijards was ultimately helpful, and it has provided some assistance to this court in understanding properly the role of the public prosecutor in criminal proceedings in the Netherlands, in particular that the public prosecutor is regarded as being a member of the judiciary.
In addition, the Court has taken due note of the emphatic assertion of the issuing judicial authority that he has charged the respondent, and his co-accused Mr. Brunell, and that ‘[t]here have already been two hearings in the trial against the suspects at the District Court as court of first instance, which will decide on the question of guilt, namely on 28 March 2012 and on 30 August 2012’.
(2) Where a European arrest warrant is issued in respect of a person who has not been convicted of an offence specified therein, it shall be presumed that a decision has been made to charge the person with, and try him or her for, that offence in the issuing state, unless the contrary is proved.”
In the circumstances the Court is not disposed to uphold the abuse of process objection.”
17. The learned High Court judge held (in his judgment on Mr. Brunnell):-
Finally, in resolving this issue in the manner that I have, this Court is not to be taken as having arrived at a definitive view as to whether it is possible at all, having regard to the trust and confidence that underpins the European arrest warrant system, and the principle of mutual recognition, for an executing judicial authority to seek to look behind the designation of an issuing judicial authority by another member state. It is very much an open question.
In the present case, in circumstances where the s. 4A presumption was not rebutted, it was unnecessary to engage with that issue. If, however, the presumption had in fact been satisfactorily rebutted and the Curt had not been satisfied as to the existence of an appropriate antecedent process, it might then have to consider whether it could in fact look behind the designation of this particular issuing judicial authority. As to whether or not it can in fact be done will be a matter for argument and determination in some other case on another day.”
18. Several issues were raised on this appeal:-
(ii) It was submitted that in determining the issue, the learned trial judge was not correct to rely on s. 4A of the European Arrest Warrant Act, 2003, as amended.
(iii) Whether the evidence, in any event, rebutted that presumption.
(iv) Counsel for the appellants submitted that the Framework Decision was innovative and departed from previous extradition arrangements between the States, that it took the executive out of the system. That a fundamental aspect of the Framework Decision is that it is a system of surrender between judicial authorities.
(v) Counsel for the appellants submitted that this is not merely an arrest, but that the appellants may be surrendered out of the jurisdiction.
(vi) Counsel for the appellants submitted that the principle of proportionality is at the heart of the case, and referred to Damache v. The Director of Public Prosecutions  2 I.R. 266.
(vii) Counsel raised the issue of a reference to the Court of Justice of the European Union, raising questions such as: what is the meaning of ‘judicial authority’? Can the words ‘judicial authority’ have different meanings? The formal reference question suggested to the Court on behalf of the appellants was:
“Is Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States to be interpreted as permitting a public prosecutor, who is personally involved in the investigation of an offence, to issue a European Arrest Warrant in respect of that offence where it has not been established that the underlying enforceable judgment, arrest warrant or other enforceable judicial decision having the same effect was issued by an independent judicial authority”.
19. At the centre of the legal issues in this case is the concept of a judicial decision being made in relation to a European arrest warrant. This was expressed in the Framework Decision of the 13th June, 2002, on the European arrest warrant and the surrender procedures between Member States, referred to as “the Framework Decision”.
20. The European arrest warrant provided for in the Framework Decision:-
[Recital (6) Framework Decision]
23. The European arrest warrant is defined in Article 1 of the Framework Decision as follows:-
2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.
3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.”
2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State.
3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law.”
26. Thus, the foundation for the whole scheme is based on the operation of a judicial decision by a judicial authority.
27. The Framework Decision specifically states that “the judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State”. [emphasis added].
28. Thus, the Framework Decision states the grounding principle that the law relevant to the issuing of the European arrest warrant is the domestic law of the issuing State, in this case the Netherlands.
29. In Ireland the matter of an “issuing judicial authority” is addressed in legislation, introduced consequent on the Framework Decision.
30. Section 2(b) of the European Arrest Warrant Act, 2002, as amended, referred to as “the Act of 2002, as amended”, provides a number of definitions. It states that an “issuing judicial authority”:-
31. Further, it is stated in the Act of 2003, as amended, that “judicial authority”
32. Thus, while the definition of “judicial authority” includes a judge or magistrate, it also includes a person authorised to perform functions the same as or similar to those performed under s. 33 by a court in the State.
33. Section 33 of the Act of 2003 Act, as amended, provides that a court may, upon an application made by or on behalf of the Director of Public Prosecutions, issue a European arrest warrant in relation to a person who has satisfied the criteria set out.
34. Section 33 of the Act of 2003 provides for the issuing of a European arrest warrant in Ireland. It is these “functions the same as or similar” that are referred to in the definition of “judicial authority”, and so defines this person by the functions. This reflects Article 6 of the Framework Decision.
35. Thus, the question of whether a person is an issuing “judicial authority” is to be defined by reference to the issuing State, under the executing State’s domestic law.
36. It is necessary to have close regard to the requirement of mutual recognition and confidence on this aspect of the scheme because of the many different legal systems co-operating in the European arrest warrant scheme.
37. It was anticipated that there may be differences of approach in relation to the “judicial authority” chosen in different States.
38. In the Commission Staff Working Document 2007, Annex to the Report from the Commission on the implementation since 2005 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrounding procedures between member states (COM (2007) 407 final], it is stated at p. 17:-
Article 6 has been transposed by all countries with almost no difficulties. All of them have notified the General Secretariat of their relevant authorities.
The Framework Decision does not define what a judicial authority is, this question being left to the national law of Member States. Whilst it is understood that the Minister of Justice is designated by national Danish law as being a judicial authority, it is difficult to view such a designation as being in the spirit of the Framework Decision. Similarly, DE has designated the Federal Ministry of Justice and the Ministries of Justice in the Länder as the competent judicial authority. The latter have very often transferred the exercising of their powers to submit outgoing requests to public prosecutor’s offices in the Länder as well as the regional Courts while their powers to allow incoming requests have generally been transferred to regional public prosecution authorities in the Länder. One of the main advances of the European Arrest Warrant system is the removal of the possibility of political involvement from the surrender proceedings. The Commission therefore considers that the designation of an organ of the Executive as a judicial body will adversely impact on fundamental principles upon which mutual recognition and mutual trust are based.
The competent judicial authority when EE stands as the issuing Member State is the prosecutor when the EAW is delivered in order to conduct criminal prosecutions and the Ministry of Justice when the EAW is delivered in order to execute a custodial sentence. Moreover as national legislation is currently drafted, there is no competent issuing judicial authority designated to deal with instances where a suspect might abscond during the preliminary stages of the criminal proceedings. This is not in line with the Framework decision. However, when EE is acting as the executing Member State, its judicial authorities are district or appeal judges.
In addition, LT has indicated that an EAW for enforcement of a sentence is issued by the Ministry of Justice but only at the request of the judicial authority or the authority executing the sentence, that is the relevant prison department which is, however, under the under the control of the Ministry of Justice. The Ministry of Justice is not a judicial authority, but rather part of the executive. In particular, in the case the issuing of a EAW is asked by the prison department, there is no involvement at all of the judiciary. As to the Office of the Prosecutor General, it is considered as judicial authority in LT because the related provision is inserted in Chapter 9 of its Constitution entitled "The Court" of the judicial Procedure. Hence, there is no strong support to the argument that the Office of the Prosecutor General is a judicial authority in LT. Again, the Framework Decision states that an EAW must be issued or executed by a judicial authority and as a consequence LT’s implementation of Article 6 is contrary to the Framework Decision.
For FI, the Criminal Sanctions Agency shall issue the warrant for the enforcement of a custodial sentence.
Last but not least, whilst CY has indicated that the Office of the Attorney General is neither a political, judicial nor an administrative authority, the Commission is concerned by the role it plays in the issuing of an EAW. Indeed, for a EAW to be issued in a prosecution case, the consent of the Attorney General must be given in writing prior to the EAW being produced before the competent judicial authority. The Commission has not been informed of what would happen to a EAW if the consent by the Attorney General is refused and as a consequence the Commission fears that the Attorney General, in practice, will endorse the role of a judicial authority.”
40. The jurisprudence from the United Kingdom may be of comparative assistance, as it is a common law jurisdiction. However, the statute in the United Kingdom introducing the European arrest warrant is significantly different to the statute in this State. The issue falls to be determined according to Irish law.
Act of 2003, as amended
42. However, as Fennelly J. stated in Dundon v. Governor of Cloverhill Prison  1 IR 518 at p. 544:-
44. Article 6.1 provides that the issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.
45. The term “judicial authority” in the Act of 2003, as amended, is broad as it includes a judge, magistrate, or other person authorised under the law of the requesting State to perform functions the same as or similar to those performed under s. 33 of the Act of 2003, as amended.
46. In this case the issuing judicial authority in the Netherlands was Mr M.E. Woudman, Public Prosecutor (Officier van Justitie) at the Public Prosecutor’s Office in Amsterdam (Openbaar Ministerie Amsterdam), Netherlands.
47. The High Court found helpful the second affidavit of Professor Dr. Strijards in understanding the role of the public prosecutor in criminal proceedings in the Netherlands, in particular that the public prosecutor is regarded as being a member of the judiciary.
48. The learned High Court judge accepted that the Public Prosecutor in Amsterdam is authorised under the law of the Netherlands to perform functions the same as or similar to those performed under s. 33 of the Act of 2003, as amended.
49. The definition of “judicial authority” in the Act of 2003, as amended, is broad. I interpret this definition in the Act of 2003, as amended, as far as possible in light of the wording and purpose of the Framework Decision to achieve the result it pursues. I do not find that the High Court was in error in finding that the Public Prosecutor in the Netherlands is a “judicial authority”.
50. In accordance with the jurisprudence of this Court, and the principles of mutual respect and co-operation, there is a burden on the appellants to address issues which they wish to raise as to the nature of the “judicial authority”. I agree with the learned trial judge that they have not met the burden in this case.
51. The structure and composition of judicial systems in the Member States of the E.U. are varied. In many countries the public prosecutor is an integral part of the judicial structure or judicial corps. This is related to the complete independence of such a prosecutor and the position of that function in a particular national judicial structure. That, of course, has long been the case since it derives from an objective knowledge or examination of such systems. Indeed, it is a common experience in the E.U for European arrest warrants to be issued by national public prosecutors on foot of an underlying warrant, where they are the designated judicial authority for doing so. Article 6 of the Framework Decision requires a Member State to designate a judicial authority in their country for the purpose of issuing European arrest warrants. In this case, the Netherlands has designated the public prosecutor as the judicial authority. As the preamble and terms of the Framework Decision make clear, the process of surrender on foot of a European arrest warrant is based on mutual recognition of judicial acts within the E.U. There is a presumption that when a European arrest warrant is issued, and stated to be issued, by a public prosecutor or judge of a Member State acting as the judicial authority designated by the Member State, he or she is the judicial authority within the meaning of the Framework Decision and the Act implementing it. If there are cogent grounds established in a particular case which could lead the Court to concluding that the issuing authority was not a judicial authority that would be a different matter. No such grounds have been established in this case. What is clear is that a public prosecutor who is designated as a judicial authority by a Member State for the purposes of surrender on foot of European arrest warrants cannot, by reason only of the fact that he or she is a public prosecutor, as opposed to a judge of a court, be considered not to be a person who may issue a European arrest warrant within the meaning of the Framework Decision.
The status of a public prosecutor in this context, as already pointed out, is a function of national legal systems. It is not unique to the system of surrender under the Framework Decision and is also relevant to extradition generally. For example, the European Convention on Extradition, 1957, refers in Article 1 (on the obligation to extradite) in its English version to the “competent authorities” in the requesting state. The corresponding French version refers to “autorités judiciaires”. The official explanatory memorandum points out “The term ‘competent authorities’ in the English text corresponds to ‘autorités judiciaries’ in the French text. These expressions cover judiciary and the office of public prosecutor, but exclude the police authorities.” Thus, absent reasons to conclude otherwise, the public prosecutor in this case must be treated as being the judicial authority concerned for the purposes of the European arrest warrant.
52. There is well established jurisprudence in this Court as to the principles of mutual respect and co-operation in operating the European arrest warrant scheme. In this regard it is important to state that the respect and co-operation required is indeed mutual. The learned trial judge records certain comments and observations made by the public prosecutor of the Netherlands which are neither the norm in these matters or helpful. The Court endorses everything said by the learned trial judge in this regard.
53. Consequently, for the reasons given, I would dismiss the appeal.
54. It is manifest in the operation of the European arrest warrant in Member States of the European Union that a public prosecutor may be designated as a judicial authority. In the circumstances, having regard to the principles set out in Cilfit, Case 283/81  ECR 3415 that there are no grounds for a reference to the European Court of Justice.