RECORD NUMBER 2015/408
RYAN P.
FINLAY GEOGHEGAN J.
PEART J.
BETWEEN:
MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT/APPLICANT
APPELLANT/RESPONDENT
RECORD NUMBER 2015/409
BETWEEN:
MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT/APPLICANT
APPELLANT/RESPONDENT
JUDGMENT OF MR JUSTICE PEART DELIVERED ON THE 2nd DAY OF MARCH 2016
1. For convenience I will refer to the persons whose surrender is sought as the respondents, even though they are the appellants before this Court. I will refer to Minister as simply that.
2. The same point arises for determination in each of the above appeals, and involves a consideration of the nature and scope of the discretionary jurisdiction given to the High Court by s. 20 (1) of the European Arrest Warrant Act, 2003 as amended (“the Act”) to require an issuing judicial authority which has transmitted a European arrest warrant to the State for execution, to provide it with necessary additional information or documents for the purpose of performing its functions under the Act, and in particular as far as these cases are concerned, in order to determine the applications for surrender under s. 16 (1) of the Act
3. Section 20, subs. (1) provides:
“(1) In proceedings to which this Act applies the High Court may, if of the opinion that the documentation or information provided is not sufficient to enable it to perform its functions under this Act, require the issuing judicial authority or the issuing state, as may be appropriate, to provide it with such additional documentation or information as it may specify, within such period as it may specify.”
4. Before it may make an order for surrender under s. 16 (1) of the Act the High Court must be satisfied, as provided in s. 16(1)(c) thereof, that “the European arrest warrant states, where appropriate, the matters required by section 45 (as inserted by section 23 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012)” [underlining added].
5. Section 45 comes into play where the person whose surrender is sought has been convicted in absentia by a court in the issuing state in other words where he was not present for his trial, and his surrender is then sought so that he can be returned to serve that sentence in the issuing state. The section does not apply in all cases where a conviction and sentence has occurred without the respondent being present, for example where he/she has deliberately not turned up for a trial of which he has been properly notified. The section exists to ensure that in certain other circumstances where the person was not present for his trial, he may not surrendered unless the High Court can be satisfied that if surrendered the respondent will be provided with the opportunity of a retrial at which he can be present.
6. As originally enacted, s. 45 provided that a person could not be surrendered where he had not been present for his trial, and had not been notified of the date and place of his trial, or was not permitted to attend his trial, unless the issuing judicial authority provided the High Court with an undertaking in writing that upon being surrendered the person would be retried or given the opportunity of a retrial, be notified of the date and place of the retrial and be permitted to be present. That provision gave rise to a number of difficulties after the EAW arrangements commenced, including for some member states whose laws did not enable such undertakings to be provided. Eventually a new Framework Decision 2009/299/JHA was adopted by Member States and this attempted to address the previous difficulties experienced. Following the adoption by member states of the 2009 Framework Decision, a new s. 45 was substituted for the original section.
7. This new s. 45 now provides that a person may not be surrendered if he or she did not attend his or her trial resulting in the sentence in respect of which the European arrest warrant is issued, unless the warrant indicates “the matters required by points 2,3 and 4 of point (d) of the form of warrant in the Annex to the Framework Decision [of 13 June 2002] as amended by the 2009 Council Framework Decision 2009/299/JHA, as set out in the table to this section”. The section then sets out that ‘Table’ which consists of a number of paragraphs with boxes to be ticked as appropriate to the case at hand. If the issuing judicial authority correctly completes the Table by confirming certain facts by ticking the box(s) appropriate to the facts of the case, no difficulty should arise, and the High Court is thereby be enabled to be satisfied that the matters required by s. 45 of the Act to be stated in the warrant have been stated, as required by s. 16(1)(c) of the Act. Where the warrant is properly completed by the appropriate box(s) being ticked, no problem should arise.
8. Where, however, the Table has not been properly completed because the appropriate box(s) have not been ticked by the issuing judicial authority problems will arise, because the High Court has no power to make the order for surrender unless s. 16(1)(c) is complied with. One possibility in such circumstances is that the High Court might simply refuse the application for an order of surrender on the basis that the issuing judicial authority has not complied with the requirements of the Framework Decision and s. 16 of the Act, and order the discharge of the respondent. The issuing judicial authority might in such circumstances start again by transmitting another warrant in due course which would not contain the same defects, and the process would start all over again. Another possibility, and one which was adopted in these cases, is that the Minister and/or the High Court might exercise the jurisdiction provided by s. 20 of the Act by requiring the issuing judicial authority to provide the missing information or documentation to enable the High Court “to perform its functions under the Act”, as the section provides.
9. The underlying relevant factual background against which each of these appeals must be considered is the same. I will summarise it briefly as it is not in dispute. The surrender of each respondent is being sought for a second time, the applications having been refused by Edwards J. in November 2012 on foot of earlier warrants transmitted by the issuing judicial authority.
10. On the 1st July 2014 a second warrant in each case was endorsed for execution here following its earlier transmission by the issuing judicial authority. Their surrender is being sought so that they can serve in Italy a sentence of 10 years and six months imprisonment following their conviction in absentia on certain drugs charges. On the following day, the 2nd July 2014, the Minister, as the Central Authority, communicated with the issuing judicial authority and requested that it complete and furnish the form required for the purposes of s. 45 of the Act. This had been omitted in the warrants transmitted. By the time each respondent was arrested on foot of the endorsed warrants on the 8th December 2014 the form duly completed had still not been received from the issuing judicial authority. Nevertheless each respondent was arrested and brought before the High Court in the usual way, and they were remanded on bail from time to time pending the hearing of the applications for surrender. The hearing was fixed for the 20th July 2015.
11. By that date the information had still not been received, and the Court was informed that not having received a response to its request for this form made on the 2nd July 2014, a reminder had been sent on 22nd May 2015. It appears that a partial response was received following that reminder, and it was still not possible to satisfy the court of the matters referred to in s. 16(1)(c) of the Act in relation to s. 45 of the Act. A further request was sent by the Minister on the 1st July 2015 which was marked “urgent”, and a response was requested “no later than 10/07/2015”. Yet again, it appears there was no response, and on the 10th July 2015 a further reminder was sent urging a response in advance of the hearing date on the 20th July 2015. By the 15th July 2015, not having received a reply a further letter was sent, and even by the 20th July 2015 itself no response had been received from the Italian judicial authority.
12. It is not surprising in such circumstances that the respondents submitted to the High Court that since the requirements of s. 16(1)(c) had not been fulfilled for the purposes of the application for surrender despite the best efforts of the Minister as the Central Authority, surrender was prohibited and the High Court should refuse to make the order sought.
13. It was against this background that the trial judge on the 20th July 2015 determined that rather than refuse the application for surrender at that point, she would make an order directing the Minister qua Central Authority to once more request the missing information, and adjourned the matter to the 30th July 2015. On that date the information had still not been received, and the applications for surrender were again adjourned, this time to a date in Michaelmas Term 2015, and the trial judge renewed the order made under s. 20 of the Act. I presume that the applications for surrender have been further adjourned in order to await this Court’s decision on the appeal against the s. 20 orders. An order in each was drawn up in relation to the directions to the Central Authority to request the information, and since it is only in respect of an order made under s. 16 of the Act (i.e. the granting or refusing of an order for surrender) that only a limited appeal exists where a point of law of exceptional importance must be identified as arising from the decision to surrender, the respondents, without the need to obtain leave to appeal, lodged an appeal against the orders made under s. 20 of the Act.
14. It would be easy to get an impression from the above facts that the Italian judicial authority was being deliberately uncooperative in relation to what is its own request for surrender, and question why the High Court here should be so accommodating in the face of continued delay in the receipt of information which it deemed necessary before any order for surrender could be made. However, the ex tempore decision of the trial judge makes clear that she was conscious of the differences between criminal procedures in Italy and these pertaining in this jurisdiction, and that there might be confusion giving rise to these delays. She was also aware that the request for information last made by the Central Authority in July had not actually specified that the 20th July 2015 was the date fixed for the hearing of the s. 16 application. She expressed her concern at the delays that had occurred. Despite that, however, she considered in all the circumstances that “it is appropriate for me … to make one final request”. She decided that she would exercise her powers under s. 20 and she directed the Central Authority to make it clear to the Italian judicial authority that the information was required before any surrender order could be made, and she adjourned the matter until the 30th July 2015 to await a response, and at the same time confirming her order of the 20th July 2015. As I have stated, however, that response had not been received by the 30th July 2015 and the matter was further adjourned to Michaelmas Term 2015, and presumably adjourned again to await this Court’s decision.
15. The question of whether it is appropriate that an order would be drawn up and perfected when the Court is exercising its power under s. 20 to request additional information is something to which I shall return in due course. The order as drawn states:-
“The Court pursuant to Section 20 of the above Act doth direct the Central Authority to send to the Republic of Italy the Issuing judicial Authority a letter requesting additional information”.
16. Quite apart from the fact that the order is silent as to what additional information is to be requested by the Minister in such a letter, the Central Authority under the Act is the Minister for Justice and Equality, and one ponders the potential consequences were the Minister for whatever reason to fail to comply with the order. It calls into question the appropriateness of making such an order at all. In addition, s. 20 is silent as to the making of any order under the section. The section merely provides that “the High Court may … require the issuing judicial authority … to provide it with … additional information ….”. I will return to this question later.
17. But on the main issue in these appeals, the respondents submit that the purpose of s. 20 is not to plug gaps in an otherwise deficient warrant to enable an order for surrender to be made. They refer to the wording of s. 20 and in particular to the fact that the power to request further information exists where the information provided “is not sufficient to enable [the High Court] to perform its functions under the Act”. Counsel submits that the absence of necessary information for the purpose of s. 45 of the Act does not prevent the High Court from performing its functions under the Act, since its functions must include to refuse to make an order for surrender where the requirements of s. 16(1) are not satisfied. In other words, where the issuing judicial authority has failed to complete the warrant in a manner which satisfies the High Court as to the matters referred to in s. 45, the Court’s function, indeed duty, is to refuse to make the order sought since surrender is prohibited in such circumstances. It is submitted that the trial judge lacked jurisdiction under the section to seek further information, since she was able to perform her functions under the Act, i.e. to refuse the order sought on the basis that the warrant did not comply with the Act. In support of this submission the respondents have referred to the judgment of Murray C.J. in Minister for Justice v. Altaravicius [2006] 3 IR 148 where at pages 161-2 he stated:-
“There is one particular matter to which I wish to refer at this point. Section 20 (1) of the Act of 2003, as amended, provides that the High Court may ‘if of the opinion that the documentation or information provided to it is not sufficient to perform its functions under the Act require the issuing judicial authority or the issuing state, as may be appropriate, to provide it with such additional documentation or information as it may specify, within such period as it may specify’.
The section is clearly intended to apply in the circumstances of each particular case and is only relevant if the High Court is of the opinion that the documentation or information before it in a case is not sufficient to enable it to perform its function. It follows that if the European arrest warrant, in conjunction with any other matters which may be before it, is sufficient to enable the court to perform its function, the application of that section does not arise.” [underlining added]
18. A further argument made by the respondents is that even if it be concluded that s. 20 gives the High Court the power to seek the additional information in order to fill an information gap in these warrants, it is a discretionary power, and in circumstances where the issuing judicial authority had been asked for this additional information on so many occasions without response or at least without a complete response, the trial judge ought not to have exercised the power under s. 20 as she did on the 20th July 2015 and again on the 30th July 2015, and ought instead to have simply refused to make the orders for surrender, and discharged the respondents for a second time.
19. The respondents point to the fact that the Council Framework Decision of 13 June 2002 specifies in Article 17 that “A European arrest warrant shall be dealt with and executed as a matter of urgency” and goes on to indicate that “the final decision on the execution of the … warrant should be taken within a period of 60 days after the arrest of the requested person”. Noting that the arrests in these cases took place on the 18th December 2014, and that they followed upon a refusal of surrender on foot of the earlier warrants in each case where the respondents had been arrested on 24th April 2012, Counsel submits that the additional delay being caused by the numerous and unsuccessful attempts by the Court to gain the additional information from the issuing judicial authority to address the defect in the manner in which the warrant has been completed in respect of s. 45 of the Act has breached the ambition of the Framework Decision as to urgency, and has breached the respondents’ right to fair procedures and due process recognised in the Recitals to the Framework Decision, and in particular Recital (12) which provides as relevant herein:-
(12) This Framework Decision respects fundamental rights and the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof ……… . This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process ……….”
20. In support of the submission that the Court’s function under s. 16 of the Act includes to refuse to make an order for surrender where the requirements of the Act are not met by the issuing state, the respondents have referred to the judgment of Murray J. (McMenamin J. concurring) in Minister for Justice and Equality v. McPhilips and McGinley [2015] IESC 47 where the issue arose as to whether an order by the High Court refusing to make an order for surrender under s. 16(1) of the Act was a decision covered by the requirement in s. 16(11) of the Act that there may be an appeal against an order under s. 16 only if a point of exceptional importance is certified for the purpose of an appeal. Both judges agreed that an order refusing to order surrender was one that required a certificate for the purpose of an appeal, and indeed, though dissenting, Charleton J. was of the same view on this point. It is urged that there was sufficient before the High Court to fulfil its function to refuse to make the orders sought since the information before the Court (or the lack of it perhaps) was sufficient for that function to be performed.
21. In pressing the argument that in the face of defect in these warrants in relation to meeting the requirements of s. 45 of the Act, including the failure of the issuing judicial authority to respond to the overtures by the Central Authority to it to supply the further information sought by the High Court, the proper fulfilment of the Court’s function under s. 16 of the Act would have been to refuse the application for the surrender orders, the respondents refer to this Court’s judgments in Minister for Justice v. Palonka [2015] IECA 69 where this Court determined that since the issuing judicial authority had not properly completed the warrant in accordance with the prescribed Table and therefore failing to meet the requirements of s. 45 of the Act, and therefore omitting some necessary information, surrender was prohibited under Part III of the Act. I should note however that in Palonka the issue was not whether that lacuna in the warrant could be made good by the provision of additional information obtained under a request made under s. 20 of the Act. Nevertheless, the decision emphasises the need for a strict compliance with the requirements of s. 45, and in such circumstances the respondents submit that the High Court should not have strained so much to obtain the information which was being apparently being withheld, and should have refused to make the orders sought, and should have refused to exercise once more its discretionary power under s. 20 and further delay the matter in contravention of the exhortations of expedition contained in the Recitals of the Framework Decision and the specified time limits within which a decision on surrender is to be concluded.
22. The Minister submits that as she is the designated Central Authority under s. 6 of the Act, she by virtue of s. 12 of the Act provides necessary administrative assistance in relation to the transmission of European arrest warrants, and she refers to the provisions of s. 20(2) also whereby the Central Authority may request further information from an issuing judicial authority where of opinion that such information is necessary to enable the High Court to perform its functions under the Act. This function is consistent with Recital (9) to the Framework Decision of 13 June 2002 which provides that “The role of central authorities in the execution of a European arrest warrant must be limited to practical and administrative assistance”.
23. In answering the appellants’ submission that the Court did not have the necessary jurisdiction to invoke s. 20 to seek further information on the basis that there was sufficient information before it on the 20th July 2015 to perform its function (or one of its functions) under the Act namely to refuse to make the order sought, the Minister refers to s. 10 of the Act which provides, as relevant: -
“Where a judicial authority in an issuing state issues a European arrest warrant in respect of a person ……… that person shall, subject to and in accordance with the provisions of this Act be arrested and surrendered to the issuing state”.
24. This section, it is submitted, indicates that the core function of the Court is to make an order for surrender once satisfied that the requirements of the Act are met. In other words, the Court’s first task is to determine whether the provisions of the Act have been complied with, and necessarily therefore, where the Court may need further information to enable it to be certain in this regard, it may seek further information under s. 20 before it simply refuses to make the order for surrender. In such circumstances, it is submitted that there was in these cases a clear jurisdictional basis for the High Court to exercise the power under s. 20 to enable the Court to perform its first function, namely to consider whether or not an order for surrender could or could not be made.
25. The Minister also refers to the inquisitorial nature of proceedings under the Act as has been stated on a number of occasions, including by Macken J. in Minister for Justice, Equality and Law Reform v. McGrath [2006] 1 IR 321 at p. 334 when she stated:-
“ … This is not an enquiry in which there is an onus on the applicant to prove beyond reasonable doubt that the respondent is the person sought to be surrendered. Nor is it appropriate, as was stated by Denham J. … to adapt the civil standard of proof ‘on the balance of probabilities’ although this might be close to what is apt. In my view the obligation on the court is to take full account of the warrant and the accompanying materials and affidavits filed and make all appropriate enquiries which I consider necessary, including, pursuant to the Framework Decision requesting further information from the issuing authority …”.
26. The Minister has referred also to a passage from my own judgment in Minister for Justice v. Palonka [2015] IECA 69 to same effect, emphasising the ‘sui generis’ nature of extradition proceedings and EAW surrender applications
27. In relation to whether the High Court was correct on the 20th July 2015 and again on the 30th July 2015 to again adjourn the case and again request the information in the face of no responses to previous requests, the Minister submits that in so far as this was a matter of discretion to be exercised in the particular circumstances, this Court should not lightly interfere with the exercise of that discretion. But the Minister refers to the detailed consideration by the trial judge as to whether the issuing judicial authority should be permitted a further opportunity, and submits that it is clear from the decision that very careful consideration was given to the matter by the trial judge.
Conclusions
28. The Minister is in my view correct to point to the sui generis nature of these proceedings under the Act which gives effect to the Framework Decision of 13 June 2002. What this means is that these applications are ‘of their own nature’. By that I mean that they are not adversarial in nature as are most other cases which come before the courts for decision, be they criminal or civil in nature. Extradition proceedings, including surrender applications under the EAW arrangements are what is described as ‘inquisitorial’ in nature. It is the High Court which is tasked with enquiring or considering for itself whether or not the requirements of the Act are met before it decides either to make the order sought, or to refuse to make the order sought if, in the light of all the facts and all information made available to it, the Court is satisfied that the requirements of the Act are not met and/or that surrender is prohibited under Part III of the Act.
29. That is not to say that the parties do not have an input into the process. The Framework Decision makes clear that the arrangements are such as respect fundamental rights, including the right to due process. The respondent following arrest is entitled to be provided with legal representation if he/she is not in a position to provide that assistance from his/her own resources. The respondent is entitled to be heard. But nevertheless, it remains the case that it is the Court that is on enquiry as to whether the requirements of the Act are fulfilled.
30. Section 20 clearly enables the High Court to seek further information from the issuing judicial authority where it considers that this is needed to enable it to reach a decision as to whether the requirements of the Act are met in any particular case. Sometimes such information has been sought in order to gain further information as to the details of the offence alleged against the respondent so that the Court can make a decision as to whether the offence has a corresponding offence in this State in accordance with s. 5 of the Act. It is often the case that an issuing judicial authority will give a brief description in the warrant of what acts on the part of the respondent gave rise to the offence with which he/she is charged and for which surrender is sought. That brevity may not provide enough factual information to enable the Court to decide if what the respondent is alleged to have done in the issuing state was done by him in this State it would amount to an offence here. Section 20 therefore provides a useful jurisdiction or power to seek further information in that regard. Similarly, in the present case certain information was missing because the s. 45 Table had not been properly completed by the issuing judicial authority which meant that the Court could not on the papers before it be satisfied that the requirements of s. 45 were met. I appreciate that this particular information gap is of a somewhat different character than mere brevity in the description of the facts giving rise to the offence in the example which I have give. Rather, it was a failure to complete a box-ticking exercise as prescribed in the standard form of warrant. Nevertheless, that failure gives rise to a lack of information, which the High Court considered might be capable of being provided.
31. In my view, the Court has jurisdiction under s. 20 of the Act to seek further any information it considers necessary in order to decide whether an order for surrender should be made. The Court’s first function under s. 16 is to decide whether or not an order should be made. Its next function is then to either make or not make the order sought following that examination of the application. But its first task is to examine the application in the light not only of the facts available but also in the light of information it might obtain by request of the issuing judicial authority for further information under the very clear power provided by s. 20.
32. The fact that an absence of information could enable the Court to determine the application simply by refusing it does not mean that the power to seek further information should not be exercised. It is a matter of discretion in any particular case. I agree with the submission made by the Minister that s. 20 would appear to serve no purpose if, where some necessary information had not been provided, the Court’s function should be performed by simply refusing the application. Clearly that can be seen as the performance of a function under the Act, but it would render the section nugatory. In my view, the High Court had jurisdiction under s. 20 to seek further information in order to complete its examination of the application, which included being satisfied whether the requirements of s. 45 are met. The information provided was insufficient to complete that task, and could be sought, even though the lacuna resulted from a failure to properly complete a box-ticking exercise.
33. I am also satisfied that the High Court may seek the assistance of the Central Authority in the administrative task of transmitting its request for the additional information being sought under s. 20 to enable it to perform its functions under the Act. That type of assistance is clearly anticipated and permitted by the provisions of Article (9) of the Framework Decision of 13 June 2002.
34. The next issue is the question of whether the trial judge correctly exercised her discretion to seek the information on the 20th and 30th July 2015 in circumstances where previous requests had gone unanswered. There is no doubt that such a discretion exists. In so far as it is necessary to refer to authority in that regard, I refer to the statement by Murray C.J. in his judgment in Minister for Justice v. Altaravicius, already cited above, and where at p. 162 he stated:-
“Recourse to s. 20 is a matter to be decided by a judge of the High Court in the exercise of his or her discretion in each individual case provided of course that the essential elements necessary for the exercise of that jurisdiction are present.”
35. The Court of Appeal should be slow to interfere with the exercise of that discretion by a High Court judge where the “essential elements necessary for the exercise of that jurisdiction are present”. It must be recalled that the essential element for the exercise of the discretion is that the judge, as the High Court, is ”of the opinion that the documentation or information provided is not sufficient to enable it to perform its functions under this Act” This requires the existence of facts which support the formation of such an opinion. Any further element will depend upon the particular facts. In the present cases the exercise of the discretion required consideration of the prior unanswered requests and delay. In these cases there were facts to support the opinion formed that the information was not sufficient. Further it is clear that she came to a fully reasoned decision to make a further request on the 20th July 2015 and again 10 days later. She considered the nature of the discretion under s. 20 and correctly concluded that she could seek the information if it was required to enable her to perform her functions under the Act. She considered the fact that requests had previously been made by the Central Authority, and the delays that the lack of full response was causing, but in the end she concluded that it was nevertheless appropriate to make “one final request”. In my view, particularly given the detailed reasoning contained in the note of her decision, this exercise of her discretion is not one with which the Court of Appeal should interfere.
36. I would like to conclude with some remarks of a general nature about s. 20 and whether it is necessary or indeed appropriate that when exercising the discretion in s. 20 to seek additional information, the High Court would make an order directing the Central Authority to send a request for additional information to an issuing judicial authority.
37. Firstly the words of s. 20 do not envisage the making of such an order. Section 6 of the Act designates the Minister for Justice as the Central Authority for the purposes of the Act, or such other person as the Minister may by order designate as the Central Authority. No such order has been made as yet. According to the Framework Decision the role and functions of the Central Authority are confined to practical and administrative assistance to the executing judicial authority, namely here the High Court. This is entirely consistent with what is stated in Recital (8) of the Framework Decision:-
“(8) Decisions on the execution of a European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender”.
38. Order 98 of the Rules of the Superior Courts is silent as regards s. 20. No rule provides a procedure for the making of an order under that section.
39. Section 20 provides simply that the High Court “may … require the issuing judicial authority … to provide it with such additional documentation or information as it may specify …”. In other words it is the High Court that is making a request of the issuing judicial authority for that additional documentation or information. There is nothing in the Framework Decision or the Act which would prohibit the High Court from transmitting directly a request to the judicial authority in the issuing state which issued the warrant and requesting the material being sought. That could be done by means of communication such as telephone, fax, or email by the High Court itself, but it may also be done, upon request by the High Court, by the Central Authority pursuant to its recognised role of assisting with practical and administrative matters. Given the fact that the Framework Decision recognises the role of the Central Authority as being confined to practical and administrative assistance, it is clearly envisaged within that role for the Central Authority that the High Court might ask the Central Authority to assist in transmitting its request (i.e. that of the High Court) to the issuing judicial authority. It should not, and does not, require an order to ensure the Minister’s cooperation in her capacity as the Central Authority, and the section does not envisage or enable such an order to be made.
40. The present case is an example of why such an order should not be made in circumstances where one is clearly unnecessary. The Minister’s administrative assistance in the transmission of the request for additional information should be achieved by less formal means. The exercise by the Court of the discretion under s. 20 forms part of the inquisitorial process by which it may reach its decision on the application for surrender under s. 16 of the Act. The scheme of the Act, and the Framework Decision to which it gives effect envisages that this process be completed prior to any appeal. Absent some exceptional circumstance, any appeal should await the determination of the s. 16 application. The making of an unnecessary order under s. 20 has the potential to cause an unnecessary and undesirable delay in the Court’s determination of the application for surrender.
41. An order made for the purposes of seeking information under s. 20 can, as such, be the subject of an unrestricted right of appeal even though the section makes no reference to the making of such an order, and therefore runs counter to the objective of the Framework Decision, and therefore of the Act which gives it effect in the State, firstly to “remove the complexity and potential for delay inherent in the [previous] extradition procedures” and replace them with “a system of surrender between judicial authorities” [my emphasis added].
42. The bringing of an appeal against such an order at a stage in the proceeding prior to the making of any order under s. 16 of the Act causes an inevitable and entirely unnecessary delay in the completion of a hearing of the application for surrender. It interrupts the proceedings. It delays a decision on surrender for many months as this case has demonstrated, despite the best judicial efforts to minimise those delays. I say that, notwithstanding that delay has been caused by the issuing judicially authority’s failure to have provided the information in a more timely fashion. All that delay runs counter to the objectives and purpose of the EAW arrangements envisaged by the Framework Decision, and should be avoided.
43. For the reasons set forth, I would dismiss this appeal, so that these applications for surrender can proceed to a conclusion.
