High Court of Ireland Decisions

 
THE HIGH COURT

HC 303/04

[2004 No. 6 EXT]

IN THE MATTER OF KENNETH DUNDON AND IN THE MATTER OF A EUROPEAN ARREST WARRANT

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 14^th day of May, 2004

This matter comes before the Court pursuant to the provisions of s. 16 of the European Arrest Warrant Act, 2003 (hereinafter referred to as the Act of 2003) and is the first application coming before this Court pursuant to the provisions of this Act.

The Act of 2003, in its long title is stated to be

"An Act to give effect to Council Framework Decision of 13^th June, 2002 on the European arrest warrant and the surrender procedures between member States; to amend the Extradition Act, 1965 and certain other enactments; and to provide for matters connected therewith."

The terms of the Council Framework Decision are set forth at the schedule to the Act of 2003 in both the Irish language and the English Language at part (A) and part (B) respectively. The recitals to the Framework Decision indicate that the objectives of the European Union lead to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. In the fifth recital it is stated, inter alia,

"the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Members States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice."

The sixth recital reads as follows:-

"(6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the 'cornerstone' of judicial cooperation."

The seventh recital reads as follows:-

"(7) Since the aim of replacing the system of multilateral extradition built upon the European Convention on Extradition of 13 December 1957 cannot be sufficiently achieved by the Member States acting unilaterally and can therefore, by reason of its scale and effects, be better achieved at Union level, the Council may adopt measures in accordance with the principle of subsidiarity as referred to in Article 2 of the Treaty on European Union and Article 5 of the Treaty establishing the European Community. In accordance with the principle of proportionality, as set out in the latter Article, this Framework Decision does not go beyond what is necessary in order to achieve that objective."

The eighth recital reads as follows:-

"(8) Decisions on the execution of the 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."

The ninth recital reads as follows:-

"(9) The role of central authorities in the execution of a European arrest warrant must be limited to practical and administrative assistance."

The tenth recital reads as follows:-

"(10) The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof."

The twelfth recital reads as follows:-

"(12) This Framework Decision respects fundamental rights and

observes 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. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of these reasons. This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media.

In Article 1 of the Framework Decision it is stated under the heading, definition of the European arrest warrant, an obligation to execute it as follows:

"1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

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."

Article 2 of the Framework Decision indicates the scope of the European arrest

warrant and the fact that it may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least twelve months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months. In para. 2 of Article 2 certain offences are listed and in respect of these it is stated that if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State shall under the Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to the European arrest warrant. Amongst the offences specified in this regard are the offences of murder, and grievous bodily injury.

Article 3 of the Framework Decision refers to grounds of mandatory non-

execution of the European arrest warrant and Article 4 specifies grounds for optional non-execution of the European arrest warrant. Article 6 of the Framework Decision specifies:-

"1. 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.

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."

Article 17 specifies strict time limits and procedures for the decision to execute the European arrest warrant. It indicates, in principle, that save in the case where the requested person consents to his surrender the final decision on the execution of the European arrest warrant should be taken within a period of sixty days after the arrest of the requested person. It is further provided that where in specific cases the European arrest warrant cannot be executed within the time limits laid down, the executing judicial authority shall immediately inform the issuing judicial authority thereof, giving the reasons for the delay. In such case, the time limits may be extended by a further thirty days.

Paragraph 6 of Article 17 specifies that reasons must be given for any refusal to execute a European warrant.

Article 27 of the Framework Decision provides at paras. 1 and 2 thereof as follows:

"Possible prosecution for other offences

1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender.

2. Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for

which he or she was surrendered."

Paragraph 3 specifies certain exceptions to para. 2. At para (g) thereof it is specified "where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4."

Pursuant to Article 34 of the Framework Decision Ireland was required to take the necessary measures to comply with the provisions of the Framework Decision by 31^st December, 2003.

The content and form of the European arrest warrant are set forth in Article 8 of the Framework Decision which are to be set out in accordance with the form contained in the annex to the Framework Decision.

THE FACTS

On 29^th January, 2004, a judge of the Magistrates Courts, Frances Jane McIvor of Thames Magistrates' Court at 58 Bow Road, London, E3, England issued a European arrest warrant in her capacity as a competent judicial authority for the arrest and surrender for the purposes of conducting a criminal prosecution and sentencing following conviction and the executing of a custodial sentence or detention order. This warrant was issued for the arrest of the requested person being entitled, Mr. Dundon (hereinafter referred to as Mr. Dundon) in these proceedings.

The warrant was endorsed for execution pursuant to an order of this Court dated 2^nd February, 2004. Mr. Dundon was arrested at Limerick District Court on 11^th February, 2004 by Sergeant Michael Heffernan who is a member of the An Garda Síochána attached to the crime branch at Garda Headquarters. He informed Mr. Dundon that he had in his possession a European arrest warrant for his arrest which he showed to him having explained to him the nature of the charge alleged therein. The offence specified in the warrant is that of murder carrying a sentence of life imprisonment. The warrant contains material including a description of the circumstances in which the offence alleged against Mr. Dundon is stated to have been committed including the time and place of the commission. On the face of the warrant it is indicated that an Aine McCarthy who is a partner of Mr. Dundon is the only person who stated that she saw an assault on the deceased and that it was Mr. Dundon who perpetrated the stabbing of the deceased and apparently named Mr. Dundon as the person responsible for the death of the deceased.

In the European arrest warrant the offence of murder is defined in accordance with English law. It is indicated that it is triable only on indictment and the ingredients of the offence as set forth and the fact that a person convicted of murder is required to be sentenced to life imprisonment.

Section 16 of the Act of 2003 provides at subs. 1 thereof as follows:

"(1) Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under section 15 (9), the High Court may, upon such date as is fixed under section 13, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her provided that-

(a) the High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued,

(b) the European arrest warrant, or a facsimile or true copy thereof, has been endorsed in accordance with section 13 for execution of the warrant,

(c) such undertakings as are required under this Act, or facsimile or true copies thereof, are provided to the court,

(d) the surrender of the person is not prohibited by section 22, 23 or 24, and

(e) the surrender of the person is not prohibited by Part 3 or the Framework Decision (including the recitals thereto)."

At subs. 12 it is indicated that an appeal against an order under this section or decision not to make such an order may be brought in the Supreme Court on a point of law only.

Section 22 of the Act of 2003 provides at subs. 1 (b) thereof that a person shall not be surrendered under the Act of 2003 unless:-

"(b) an undertaking in writing is given to the High Court by the issuing judicial authority that the person will not be proceeded against, sentenced, or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his or her personal freedom, for an offence committed before his or her surrender other than the offence (in respect of which he or she is surrendered) specified in the European arrest warrant concerned."

At subs. 2 thereof it is provided as follows:

"(2) The surrender of a person under this Act shall not be refused on the ground that it is intended to proceed against him or her in the issuing state for an offence (other than the offence specified in the European arrest warrant) alleged to have been committed by him or her before his or her surrender provided that-

(a) upon conviction he or she is not liable to a term of imprisonment or detention, or

(b) in circumstances where upon conviction he or she is liable to a term of imprisonment or detention and such other penalty as does not involve a restriction of his or her personal liberty, the High Court is satisfied that the said other penalty only will be imposed should he or she be convicted of the offence."

Section 24 of the Act of 2003, provides as follows:

"(1) A person shall not be surrendered under this Act unless the issuing judicial authority gives an undertaking in writing that the person will not be extradited to a third state without the consent of the High Court and the Minister.

(2) The issuing judicial authority may request in writing the High Court to consent to the extradition to a third state by the issuing state of a person surrendered to the issuing state under this Act.

(3) The High Court shall not give its consent to a request under subsection (2) unless the extradition of the person concerned to the third state in respect of the offence concerned would be permitted under the Extradition Acts 1965 to 2001, were a request for such extradition to be received by the State from the third state."

Part 3 of the Act of 2003 specifies, under the heading of Prohibition on Surrender, circumstances under which a person shall not be surrendered under this Act. At s. 37 (1) it is provided as follows:-

"A person shall not be surrendered under this Act if – …(c) there are reasonable grounds for believing that –

(i) the European arrest warrant was issued in respect of the person for the purposes of facilitating his or her prosecution or punishment in the issuing state for reasons connected with his or her sex, race, religion, ethnic origin, nationality, language, political opinion or sexual orientation."

(ii) in the prosecution or punishment of the person in the issuing state, he or she will be treated less favourably than a person who-

(I) is not of his or her sex, race, religion, nationality or ethnic origin,

(II) does not hold the same political opinions as him or her,

(III) speaks a different language than he or she does, or

(IV) does not have the same sex orientation as he or she does

or

(iii) were the person to be surrendered to the issuing state-

(I) he or she would be sentenced to death, or a death sentence imposed on him or her would be carried out, or

(II) he or she would be tortured or subjected to other inhuman or degrading treatment."

When this matter first came before this Court pursuant to s. 16 there was not before this Court any undertaking as specified in s. 22 or s. 24 of this Act. In the circumstances the matter was adjourned by me to enable such undertakings to be produced before this Court. The matter was adjourned for hearing until 7^th May last by which time there was produced to this Court further documentation from the issuing judicial authority in the United Kingdom. The issuing judicial authority has certified that she has received written undertakings made by the Parliamentary Under Secretary of State, being the competent authority under s. 96 of the Extradition Act, 2003 and the Director of Public Prosecutions as head of the Crown Prosecution Service of England and Wales. The issuing judicial authority ordered that these undertakings be forwarded to the appropriate authorities in this State by way of an annex to part (f) of the European arrest warrant issued by her under the Extradition Act, 2003 on 29^th January, 2004.

The undertaking from the Parliamentary Under Secretary of State is to the effect that Mr. Dundon shall not be extradited to a State other than a Member State of the European Communities or Gibraltar without the consent of this Court and the Minister for Justice, Equality and Law Reform. It is stated that this undertaking is given in accordance with Article 28 (4) of the Framework Decision.

The undertaking from the Director of Public Prosecutions is to the effect that if Mr. Dundon is surrendered to the United Kingdom that he will not be proceeded against, sentenced or detained for the purposes of executing a sentence or detention order or otherwise restricted in his personal freedom or otherwise subjected to a penalty for an offence committed before his surrender other than the offence of murder or any of the following lesser offences in respect of the death of the deceased which are disclosed in the information contained in the warrant and which it is indicated would be alternative verdicts opened to a jury at his trial, namely manslaughter, wounding with intent, unlawful wounding and assault occasioning actual bodily harm. Information is given in relation to each of these offences and the penalty that may be imposed consequent upon the conviction for any such offence.

An affidavit has been sworn by Richard Edwin Glenister who is a barrister employed by the Crown Prosecution Services as a crown prosecutor. He deposes to United Kingdom law and to the fact that a person surrendered to the United Kingdom by Ireland shall not be surrendered to another Member State of the European Community pursuant to a European arrest warrant in respect of an offence committed or alleged to have been committed before his surrender by Ireland to the United Kingdom save only where the central authority of Ireland gives its consent. He also refers to the undertaking of the Parliamentary Under Secretary of State whom he identifies as Caroline Flint. He indicates that under United Kingdom law the Parliamentary Under Secretary of State properly exercises the delegated functions of the Secretary of State pursuant to the Extradition Act, 2003. He indicates therefore, that she is the competent authority to give the undertaking which has been transmitted.

An affidavit has been sworn by Detective Inspector Jonathan Macdonald who describes himself as the investigating officer with responsibility for the an inquiry into the murder in question and alleged against Mr. Dundon. He indicates that the European arrest warrant was issued in respect of Mr. Dundon. due to the fact that there is evidence against him that the Crown Prosecution Service would support a realistic prospect of conviction for murder. He indicates that Mr. Dundon has failed to return on police bail and has absconded to Ireland, thus necessitating the issue of the European arrest warrant.

He indicates that Mr. Dundon is not being prosecuted on account of race or ethnic origin or any imputed political opinions but is being prosecuted because there is evidence that he committed the offence specified in the European arrest warrant. He indicates that other persons of Irish nationality and background have been arrested and bailed in respect of the offence and there have been no complaints from either Mr. Dundon himself or others with respect to their treatment. He indicates that Mr. Dundon will not be treated any less favourably in the prosecution of the offence in the United Kingdom than any other person, regardless of race, ethnic origin or political opinion who is the subject of a prosecution.

An affidavit has been sworn by Anne McCarthy, who describes herself as the estranged wife of the Mr. Dundon. She indicates that she made a statement to the English police in respect of a murder investigation conducted by them. She indicates that she implicated Mr. Dundon in the incident. She states that she made this statement to the English police in circumstances where she was willing to answer all and any questions simply to secure her immediate release from the interrogation process. She states that she has no recollection or recall of any of the events that led to the charges against Mr. Dundon. She states that her lack of recollection may be due to her dependence on alcohol and her dependence on drugs prescribed and unprescribed. She describes herself as an alcoholic and says that when she signed documentation in the South Court Hotel in Limerick she did so having been questioned by the English police and having consumed alcohol purchased for her by the police. She retracts this statement which she states she made which implicates Mr. Dundon.

SUBMISSIONS

On behalf of the Minister for Justice, Equality and Law Reform, who is the Central Authority in this State for the purposes of the Act of 2003, pursuant to s. 6 (1) thereof, it is submitted that in the first instance the issue of identity having already been dealt with by this Court and not being put in issue, does not arise at this stage of the proceedings. Counsel refers this Court to the provisions of the Framework Decision annexed to the Act of 2003 and submits that whole of the Act may be relied upon by this Court in its consideration of any provision thereof. Counsel refers to the requirements of s. 16 of the Act of 2003, and further refers this Court to the provisions of Statutory Instrument Number 4 of 2000 entitled the European arrest warrant Act, 2003 (Designated Member States) Order, 2004 under which the Minister for Foreign Affairs in exercise of the powers conferred on him by s. 3 of the Act of 2003, ordered inter alia, that the Member States specified in the schedule to the order are designated for the purposes of the European arrest warrant Act, 2003. Amongst the Members States specified is the United Kingdom. Counsel further proved before me by reference to the Iris Oifigiúil of 13^th February, 2004 the publication therein of the fact that the Minister for Foreign Affairs had made the said statutory instrument.

Counsel referred to s. 11 (1) of the Act of 2003 relating to the matters to be specified in the European arrest warrant.

Counsel further refers to the provisions of s. 12 subs. 8 which provide as follows:

"(8) In proceedings to which the Act applies, a document that purports to be-

(a) a European arrest warrant issued by a judicial authority in the issuing state,

(b) an undertaking required under this Act of a judicial authority in the issuing state,

(c) a translation of a European arrest warrant or undertaking under this Act, or

(d) a true copy of such a document.

shall be received in evidence without further proof."

Under subs. 11 thereof it is provided

"In this section 'undertaking' includes a statement under s. 11 (3). In this regard s. 11 (3) provides as follows:

"(3) Where a European arrest warrant is issued in the issuing state in respect of a person who has not been convicted of the offence specified therein, the European arrest warrant shall be accompanied by a statement in writing of the issuing judicial authority that-

(a) the person has been charged with, and a decision to try him or her for, the offence concerned has been made, or

(b) where the person has not been charged with the offence concerned, a decision to charge him or her with, and try him or her for, the offence concerned has been made

by a person who in the issuing state, or part thereof, performs functions the same as, or similar to, those performed in the State by the Director of Public Prosecutions."

Counsel submits that the onus is on the respondent to prove objectively the existence of any circumstances giving rise to reasonable grounds for believing that the European arrest warrant was issued in respect of him for the purposes of facilitating his or her prosecution or punishment in the issuing State for reasons connected with his or her sex, race, religion, ethnic origin, nationality, language, political opinion or sexual orientation or in the prosecution or punishment of the person in the issuing State, he or she will be treated less favourable than a person who is not of his or her sex, race, religion, ethnic origin or nationality, or does not hold the same political opinions as him or her.

Counsel refers to the provisions of s. 22 of the Act of 2003, and submits that these relate to the provisions of Article 27 of the Framework Decision. Counsel refers to the undertaking provided in this case and to the provisions of s. 22 (1) (b) of the Act of 2003.

Counsel refers to the essential obligation to surrender contained in s. 10 of the Act of 2003, which provides as follows:

(10) Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person-

(a) against whom that state intends to bring proceedings for the offence to which the European arrest warrant relates, or

(b) on whom a sentence of imprisonment or detention has been imposed and who fled from the issuing state before he or she-

(i) commenced serving that sentence, or

(ii) completed serving that sentence,

that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision be arrested and surrendered to the issuing state."

Further reference is made to the provisions of s. 22, subs. 6 (i) dealing with an undertaking in writing given by or on behalf of the issuing judicial authority. Counsel refers to the Framework Decision as providing for forms of undertaking. Counsel refers to an affidavit sworn by the respondent Mr. Dundon on this application. In his affidavit he states at para. 4 thereof, his belief that the European arrest warrant was issued for the purposes of facilitating his prosecution or punishment in England for reasons connected with his race and ethnic origin or imputed political opinions. At para. 5 of the affidavit he states his belief that in the prosecution against him he will treated less favourably than an English man or other person of a different race, ethnic origin or imputed political opinion would be. He describes himself and an Irish man and settled traveller. He states that he has experienced regular harassment from the police and authorities during his time in England. He states that he has been subjected to numerous and groundless searches and general intimidation from the English police authorities. He states his belief that the harassment which he has experienced is inextricably bound up with his identity as an Irish man and a traveller. He expresses his belief that he will be persecuted and he expresses further belief that the warrant was issued particularly for this purpose. He further addresses the circumstances of the charge and contests his innocence of the allegations. He also comments upon Aine McCarthy referred to in the warrant. He also alleges intimidation by the police in England. He expresses the belief that the police and the English justice system is out to get him.

Counsel comments upon the fact with regard to the matters stated by Mr. Dundon, many of the averments are without particulars whatsoever. Counsel submits by reference to the authority of Shannon v. Fanning [1984] I.R. 569 that the onus of proof rests with the respondent. In that particular case, the Supreme Court indicated that the onus of proof lay on the plaintiff to prove that there were substantial reasons for believing that, if removed to Northern Ireland, he would be prosecuted or detained for a political offence or an offence connected with a political offence. This matter was addressed by O'Higgins C.J. at p. 582 of the judgment. In conclusion counsel refers to the provisions of the twelfth recital to the Framework directive and to the reference therein to objective elements upon which there are reasons to believe that the arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that the persons' position may be prejudiced for any of these reasons. It is submitted that what is contained in the affidavit of the respondent is essentially subject in form and fails to conform with the requirement of objective elements.

On behalf of the respondent it is submitted by Mr. Michael O'Higgins, S.C. that three substantive matters arise as follows:-

1. Whether what have been produced amounts to undertakings from a judicial authority in compliance with the requirements of s. 22 and s. 24 of the Act of 2003.

2. It is submitted that with regard to the apprehensions expressed by the respondent in his affidavit that a number of issues have not been addressed at all and it is submitted that insofar as there are conflicts between what is stated by him and the affidavits sworn on behalf of the issuing authority that the conflicts cannot be resolved on the basis of the affidavits before the courts.

3. It is submitted that the effect, if any, of the case being made out in the warrant in light of the retraction by Anne McCarthy of her statement to the English police is a situation where, without having seen anything, it is proposed to sustain the prosecution of the respondent. It is submitted that there is no prima facie case made out. It is submitted that in the light of the withdrawal of the statement of Anne McCarthy that that part of the case has gone and that in substance there is no evidence against the respondent.

With regard to the undertakings in question, counsel submits that these undertakings are not of a judicial authority. Counsel further submits that if the Court is not disposed to accept this submission that the form of the undertaking is irredeemably bad insofar as the terms of the undertaking are concerned.

Counsel submits that there is an obligation to ensure that there has been compliance with the Act of 2003. Counsel refers to a number of authorities dealing with statutory interpretations. Counsel refers to Rahill v. Brady [1971] I.R. 69 and a portion of the judgment of Budd J. at p. 86 of the report where he stated as follows:-

"The term 'special event' is not defined in the statute and it must, therefore, be interpreted according to the ordinary rules for the construction of a statute. In the absence of some special technical or acquired meaning, the language of a statute should be construed according to its ordinary meaning and in accordance with the rules of grammar. While a literal construction generally has prima facie preference, there is also the further rule that in seeking the true construction of a section of an Act the whole Act must be looked at in order to see what the objects and intention of the legislature were; but the ordinary meaning of words should not be departed from unless adequate grounds can be found in the context in which the words are used to indicate that a literal interpretation would not give the real intention of the legislature."

Counsel refers further to the judgment of Hamilton C.J. in Lawlor v. Flood [1999] 3 I.R. 107 at 130 where under the heading statutory interpretation, he quoted with approval from the judgment of Blaney J. in Howard v. Commissioners of Public Works [1993] I.L.R.M. 665 at 690 where he adopted the following passage from Craies on Statute Law (7^th ed., 1971 at p. 65):-

"The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law giver. The tribunal that has to construe an Act of a legislature, or indeed any other document, has to determine the intention as expressed by the words used. And in order to understand these words it is natural to enquiry what is the subject matter with respect to which they are used and the object in view."

In the same case at p. 693 Blaney J. stated

"It was also submitted that it would be an absurd situation if the commissioners had to comply with s. 84 and also obtain planning permission, but where, as here, the provisions of the sections are quite clear [my emphasis] the court is obliged to give effect to them even if the effect of doing so may not appear to be entirely reasonable. 'Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be. The interpretation of a statue is not to be collected from any notions which may be entrained by the court as to what is just and expedient; words are not be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should not be embraced or excluded. The duty of the court is to expound the law as it stands, and to 'leave the remedy (if one be resolved upon) to others'. Maxwell on the interpretation of statutes at p.29. "

Counsel submits that the words at issue in these proceedings and in particular the provisions of s. 22 (1) (b) in relation to an undertaking are precise and unambiguous and it is submitted that no hardship or absurdity results from the construction contended for.

Counsel refers to Director of Public Prosecutions v. Tivoli Cinema Limited [1999] 2 IR 260 where at p. 268 of the report Barron J. stated inter alia, as follows:-

"The sections are penal sections in that they provide a criminal sanction. Accordingly, before a criminal sanction can be applied the defendant is entitled to know by clear and unambiguous language that such sanction will be applied in specific circumstances."

Counsel refers to Director of Public Prosecutions v. Kemmy [1980] I.R. 160 where at p. 164 of the report O'Higgins C.J. stated inter alia:-

"Where a statute provides for a particular form of proof or evidence on compliance with certain provisions, in my view it is essential that the precise statutory provisions be complied with. The Courts cannot accept something other than that which is laid down by the statute, or overlook the absences of what the statute requires. To do so would be to trespass into the legislative field. This applies to all statutory requirements; but it applies with greater general understanding to penal statues which create particular offences and then provide a particular method for their proof."

Counsel further refers to Aamand v. Smithwick [1995] 1 I.L.R.M. 61 in which the Supreme Court held (1) that the Extradition Act, 1965 is a penal statutory code involving penal sanctions on a individual and must therefore be strictly construed and, secondly, that an individual should not be subjected to detention and extradition unless the statute provides so unambiguously.

Counsel further refers to the Sloan v. Culligan [1992] I.L.R.M. 194 in which the Supreme Court indicated that a provision of the extradition (European Convention on the Suppression of Terrorism) Act, 1987 should be strictly construed. At p. 200 Finlay C.J. stated, inter alia as follows:-

"With regard to the general construction of s. 3, I am satisfied two principles apply. Firstly, I am satisfied that insofar as it is a section which may impose upon an individual a liability to be delivered out of the jurisdiction for the purpose of standing trial or of serving a sentence, where, were it not for the provisions of the section such an order might not be made that it should be strictly construed." The section in question was one restricting the ambit of what might be regarded as a political offence or as an offence connected with a political offence.

Dealing with second point raised by counsel for the respondent concerning the affidavit of Anne McCarthy, counsel submits that the prosecution could not be mounted in the absence of her evidence. With regard to the third point raised counsel refers to the affidavit of the respondent and submits that it has not been sufficiently addressed. Counsel further refers to the fact that documentation in the instant case has been furnished in the name of the Attorney General. He refers to the provisions of s. 6 of the Act of 2003 which indicates that the Minister shall be the central authority in the State for the purposes of this Act. Counsel also refers to the fact that under this section at subs. 2 thereof it is provided that the Minister may by order designate other persons to perform such functions of the central authority in the State as are specified in an order to be made. Counsel refers to the fact that no such order has been made by the Minister appointing the Attorney General as a designated person for the purposes of this section.

Finally, counsel refers to the endorsement of the European arrest warrant in the instant case which has been endorsed by the Registrar of the Court rather than by the Judge of the Court.

In reply it is submitted by Mr. O'Connell on behalf of the Minister that the term 'undertaking' appearing in the Act has not been defined. Counsel refers to the fifth and tenth recitals to the Framework Decision reflecting the cooperation between Member States and a high level of confidence between Member States. Counsel refers to Article 27 para. 2 and submits that s. 22 follows from this. Dealing with the terms of the undertaking, it is submitted by counsel that a personal undertaking of the judge is not required. Counsel submits that what has been furnished is a judicial noting in a proper form of a promise for the purpose of the protection of the person being surrendered. Counsel submits that to construe the section as requiring a personal undertaking, in other words applying a literal approach to the interpretation would amount to an absurdity. In this regard counsel refers to Bennion, Statutory Interpretation (4^th ed., where it is stated, inter alia, at Section 312 at page 813:

"Section 312. Presumption that 'absurd' result not intended.

(1) The court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by Parliament. Here the courts give a very wide meaning to the concept of 'absurdity', using it to include virtually any result which is unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a disproportionate counter-mischief.

(2) In rare cases there are overriding reasons for applying a construction that produces an absurd result, for example where it appears that Parliament really intended it or the literal meaning is too strong."

It is submitted by counsel that the magistrate in this case had no authority to give a personal undertaking. Counsel stresses that judicial authorities do not make executive decisions such as whether to prosecute in any given case. With regard to the undertakings required in s. 24, counsel submits that the same principles apply. In this regard counsel refers to para. 4 of the affidavit of Mr. Glenister insofar as it is indicated that the Parliamentary Under Secretary of State properly exercises the delegated functions of the Secretary of State pursuant to the Extradition Act, 2003. And where it is further indicated that the Parliamentary Under Secretary of State is the competent authority to give the undertaking which has been transmitted.

Dealing with the further submissions made by counsel it is submitted that there is no requirement for a prima facie case to be established. It is submitted that the warrant indicates on its face the circumstances in which the offence is alleged to have been committed. Counsel indicates the applicant could be proceeded against for other offences. In this regard he refers to the twelfth recital to the Framework Decision. Dealing with the contentions of the respondent as to why he should not be surrendered it is submitted that there is a want of any objective element demonstrated in the affidavit of the respondent. Finally, counsel confirms that he acts for the central authority and not for the Attorney General and in this regard it is submitted that no delegation such as envisaged by s. 10 of the Act of 2003 is required.

CONCLUSIONS

In the first instance when this matter came before the court there appeared to be some confusion in relation to who was the moving party. However, it was clarified by counsel that they acted for and on behalf of the Central Authority being the Minister for Justice, Equality and Law Reform. In that regard I indicated that his name should be inserted on the documentation before the court. It is true that some of the documentation contained the name of the Attorney General but I am satisfied that in no circumstance should I dispose of this case based upon that matter as the substance of the case has been put forward to the court by the Central Authority being the Minister for Justice, Equality and Law Reform. A practice direction has been made by the President of the High Court dated the 8^th January, 2004. It is indicated in the practice direction that the warrant which is endorsed for execution pursuant to an order of this Court is signed by the Registrar of the Court and is to be in the form: " This warrant is endorsed for execution pursuant to Order of the High Court dated the day of 20 ,

Signed:_______________________

Registrar"

The same practice direction provides that where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent and shall require the person, at such time and in such manner as prescribed by the Court, but not, without leave of the Court, later than ten days after the date on which the person is then appearing, deliver to the solicitor for the Central Authority and to the High Court Registrar, Points of Objection should the person wish to contest his or her surrender. The practice direction makes it clear that the points of objection shall contain, and contain only, a statement in summary form of the material facts in which the person relies for his or her defence but not the evidence by which they are to proved. In the instant case a notice of objection was filed by the respondent's solicitor but specifies no facts or other material upon which objection is taken but simply indicates, in the broadest terms possible, that objection is taken to the proceedings and to the making of any order pursuant to s. 16 of the Act of 2003. I am not satisfied that this form in any way meets the requirements of the practice direction and it is clear than an objection should indicate with some clarity the points at issue in the context of the proposed surrender of the person arrested.

Dealing with the issue of the form of the warrant in the instant case, I am satisfied that it conforms with the requirements both of the Act of 2003, and by extension thereto, the terms of the Framework Directive. There is no requirement that a prime facie case be established and in this regard I do not consider it as material to the issues arising before this Court whether or not Anne McCarthy has retracted any statement previously made by her to the police in the United Kingdom, or even whether she is a competent or compellable witness in any prosecution of the respondent.

With regard to the apprehensions of the respondent I believe that these have been addressed in essence by Mr. Macdonald in his affidavit. Furthermore insofar as there may be any conflict between what he states and what is stated by the respondent I cannot resolve the matter in favour of the respondent insofar as I accept the submissions made by counsel on behalf of the Minister that the onus rests upon the respondent to establish circumstances showing that there are reasonable grounds for believing in the context of s. 37 of the Act that the European arrest warrant was issued in respect of the respondent for the purposes of facilitating his or her prosecution or punishment in the issuing State for reasons connected his race, ethnic origin or political opinion in the context of the instant case. I am also satisfied that the respondent has failed to establish any reasonable grounds whereby this Court could conclude that, in the prosecution or punishment of the respondent in the United Kingdom, he will be treated less favourably than any other person. I am satisfied that the respondent has failed to establish on the basis of objective elements any basis for the refusal to surrender pursuant to the provisions of s. 37 of the Act of 2003. I believe that his affidavit is essentially subjective in nature and furthermore such other matters which may not be entirely subjective are in the form bald assertions without any factual basis being demonstrated.

This now leads me to consider what has been the central aspect of the submissions made on behalf of the respondent and that is whether there has been compliance with the provisions of s. 22 (1) (b) and s. 24 of the Act in the context of the undertakings provided to this Court.

At the heart of the European Framework Decision is what has been described as the 'cornerstone' of the judicial cooperation based upon the establishment of a system involving co-operation between the judicial authorities of the Member States.

Article 5 of the Framework Decision under the heading "Guarantees to be given by the issuing Member State in particular cases" indicates that in certain circumstances the issuing judicial authority may be required to give an assurance deemed adequate to guarantee to the person who is subject of European arrest warrant that he or she will have an opportunity to apply for a re-trial of a case in the issuing Member State and to be present at the judgment where the European arrest warrant has been issued for the purposes of executing a sentence or a detention order imposed by a decision rendered and if the person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which lead to the decision rendered in absentia. None of the other sections of Article 5 have any application to the circumstances of this case. It is clear that the requirements in s. 22 relating to an undertaking to be given to the High Court and further the requirement for an undertaking in s. 24 are not reflected in the text of the Framework Decision itself. Accordingly, no assistance can be gained in relation to the interpretation of the sections by reference to the Framework Decision.

The issue arising in this case is whether the undertakings in question required in these sections is to be understood as an undertaking to be given personally by the judge or court concerned that is the issuing judicial authority. I accept as correct, the submission made to this Court that the courts have no function in a decision whether someone will be proceeded with or prosecuted for an offence. It is clear that such a decision is vested in the prosecuting authorities and the issuing judicial authority is not such. It is hard to envisage in these circumstances how the issuing judicial authority could give an undertaking itself of the nature required. I accept that if the sections are to be construed in the manner contended for by counsel for the respondent that I would have to hold that no such undertaking has been furnished.

At no stage in the context of these proceedings has any indication been given that Ireland has notified the General Secretariat of the Council that in its relations with other Member States and in particular with the United Kingdom that consent is presumed to have been given for the prosecution, sentencing or detention with the view to carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender other than that for which he or she was surrendered. In this regard I am unclear as to what steps may have been taken by Ireland pursuant to the provisions of Article 27 para. 1. However, it is to be noted that in the context of the second paragraph to that Article, in principle a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered. One of the exceptions referred to in para. 2 of Article 27 is where the executing judicial authority, in this case, the High Court which surrendered the person gives it consent in accordance with para. 4. Paragraph 4 refers to a request for consent being submitted to the executing judicial authority. No such request has been made in this case and in the circumstances the question of this Court consenting to the respondent being prosecuted, sentenced or otherwise deprived of his liberty for an offence committed prior to his surrender other than that for which he is surrendered is required does not arise.

It is to be noted that in the context of the situations mentioned in Article 5 of the Framework Decision it is provided in the final sentence of para. 4 of Article 27 that the issuing Member State must give the guarantees provided for therein. In other words there is no requirement in the Framework Decision in those cases for the issuing judicial authority itself to give the guarantees provided for, save in regard to para. 1 of Article 5. This is reflected in s.45 of the Act of 2003. It is further to be noted that the undertaking referred to in s. 22 subs. 1 (b) is an alternative to a situation where under the law of the issuing state a person who is surrendered to it pursuant to a European arrest warrant shall not be proceeded against, sentenced, or detained for the purposes of executing a sentence or detention order or otherwise restricted in his or her personal freedom for an offence committed before his or her surrender other than the offence specified in the European arrest warrant.

It is to be noted that in the instant case evidence has been given in relation to the law in the United Kingdom precluding such activity.

I believe that a literal approach to the provisions of s. 22 and s. 24 gives rise to an absurdity and that the Court should apply a purpose of interpretation to these sections. In this regard I accept the submissions of counsel for the Minister and I also have regard to cases applying such a rule such as Director of Public Prosecutions (Ivers) v. Murphy [1999] 1 IR 98. In applying such an approach I believe that this Court must act upon the undertakings furnished by the issuing judicial authority which have been received in turn from the Director of Public Prosecutions and from the Parliamentary Under Secretary of State. I am also satisfied, having regard to the terms of the Framework Decision itself and in particular Article 28 para. 1 thereof, that if this Court is to decide on the surrender of the respondent that it is entitled in its decision to indicate that no consent for the surrender of the respondent to a Member State other than the executing Member State for an offence committed prior to his or her surrender is given. I am furthermore satisfied that having regard to the provisions of Article 27 that it is clear that in the instant case the respondent may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than for which he is being surrendered. In light of the fact that no question arises of this Court giving its consent otherwise.

I also take the view that in light of the fact that it is proposed to proceed against the respondent for the offence of murder that this necessarily entails that in the context of the matter going to a jury that a verdict may be returned in relation to a lesser offence as indicated in the undertaking furnished by the Director of Public Prosecutions.

In conclusion I will make an order directing that the respondent be surrendered to such other person as is duly authorised by the issuing state, that is the United Kingdom, to receive him. I will hear counsel in relation to the form of any order to be made by this Court.

Approved: Ó Caoimh J.