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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Minister for Justice, Equality and Law Reform v. Corrigan [2006] IEHC 101 (22 March 2006)
URL: http://www.bailii.org/ie/cases/IEHC/2006/H101.html
Cite as: [2007] 2 IR 448, [2006] IEHC 101
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- 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.
- A person shall not be surrendered under this Act where –
2006 IEHC 101
This Judgment is circulated in redacted form to avoid identification of parties
RECORD NO. 2005/41 EXT
APPLICANT
RESPONDENT
RECORD NO. 2005/1055 JR
APPLICANT
RESPONDENTS
Judgment of Finnegan P. delivered on the 22nd day of March 2006.
On the 1st September 2005 John Benedict Corrigan was arrested on foot of a European Arrest Warrant. In the proceedings firstly mentioned in the title hereof he objects to his surrender pursuant to section 16 of the European Arrest Warrant Act 2003 on a number of grounds. However on the hearing the grounds relied upon were the following –
(8) The delay on the part of the prosecuting authorities in the issuing State has infringed the Respondent's right to a fair and expeditious trial in due course of law under both the Constitution and the European Convention on Human Rights.
(9) The delay on the part of the Applicant has infringed the Respondent's right to a fair and expeditious trial in due course of law under both the Constitution and the European Convention on Human Rights.
(10) It would be unconscionable, invidious, unfair and/or oppressive to surrender the Respondent given the unconscionable, unreasonable and unexplained delay on the part of the Applicant and the prosecuting authorities in the issuing State.
(11) The surrender of the Respondent ought to be denied pursuant to section 40 of the European Arrest Warrant Act 2003 as the passage of time since the commission of the alleged offence is such that the Respondent could not be proceeded against within the State.
In the proceedings secondly mentioned in the title hereof on the 4th October 2005 Mr. Corrigan was granted leave to apply for Judicial Review. At the hearing the reliefs sought and the grounds relied upon narrowed to the following -
Reliefs
1. An Injunction restraining the first named Respondent herein from surrendering or seeking the surrender of the Applicant on foot of the European Arrest Warrant endorsed for execution within the State on 19th August 2005 on the grounds of inordinate and/or inexcusable delay on the part of the first named Respondent and/or the United Kingdom Police and the prosecuting authorities and/or complainants.
2. A Declaration that the extradition of the Applicant on foot of the said European Arrest Warrant would amount to a breach of his constitutional rights and his rights under the European Convention on Human Rights.
Grounds
1. The offences alleged in the European Arrest Warrant arise from a period between 25 and 27 years prior to the Applicant's arrest. The United Kingdom Police Authorities have been aware of the allegations for a period of at least three years prior to the Applicant's arrest. The delay on the part of the first named Respondent, the United Kingdom Police and prosecuting authorities and/or complainants is as yet unexplained and as such is entirely excessive inordinate and inexcusable.
2. Accordingly the Applicant claims that:-
(a) He has been deprived of a trial in due course of law and with due expedition.
(b) He has been significantly prejudiced by the complainant delay in the bringing of the extradition and presumed subsequent criminal proceedings.
(c) He has been significantly prejudiced by the prosecutorial delay in the bringing of the presumed subsequent criminal proceedings.
(d) He has been disadvantaged in not being given any details of the reason or reasons for the lengthy delay in the making of any complaint against him.
(e) He will be unable to call potentially relevant witnesses in his defence.
(f) By reason of the passage of time the Applicant herein is left only with his plea of "not guilty" by way of a defence to the said charges.
(g) He has been unfairly subjected to anxiety and distress by reason of the various categories of delay as set out above.
(h) The Applicant's personal circumstances are now such that it would be unfair, oppressive and invidious to order his surrender particularly in the light of the delay to date.
(i) The delay since the alleged commission of the offences has been so great as to give rise to an unavoidable and incurable presumption that there has been a prejudice to the fair trial of the accused.
Essentially therefore the issues both in the proceedings pursuant to the European Arrest Warrant Act 2003 and in the Judicial Review proceedings are the same and accordingly both proceedings were dealt with at the same time. In these circumstances in this judgment I propose to refer to the Minister for Justice, Equality and Law Reform, the Minister for Foreign Affairs and the Attorney General as the Applicant and John Benedict Corrigan as the Respondent. The following issues arise out of the two sets of proceedings –
1. Has there been such delay on the part of the prosecuting authorities as to infringe the Respondent's rights under the European Convention on Human Rights Article 6.
2. Has there been such delay on the part of the prosecuting authorities as to infringe the Respondent's rights under the Constitution.
3. Has there been such delay on the part of the Applicant as to infringe the Respondent's rights under the European Convention on Human Rights Article 6.
4. Has there been such delay on the part of the Applicant as to infringe the Respondent's rights under the Constitution.
5. Would it be unconscionable, invidious, unfair and/or oppressive to surrender the Respondent given the unconscionable, unreasonable and unexplained delay on the part of the Applicant and the prosecuting authorities in the issuing State.
6. Should the surrender of the Respondent be denied pursuant to section 40 of the European Arrest Warrant Act 2003 as the passage of time since the commission of the offence is such that the Respondent could not be proceeded against within the State.
7. Should the surrender of the Respondent be denied on the grounds of inordinate and inexcusable delay on the part of the Complainants.
The European Arrest Warrant relates to a total of seven offences.
1. That the Respondent on a day between the 2nd day of December 1967 and the 17th day of May 1968 at Gateshead England indecently assaulted T.R. a male person aged 12 years.
2. That the Respondent on a day between the 18th day of May 1968 and the 17th day of May1969 at Gateshead England indecently assaulted T.R. a male person aged 13 years.
3. That the Respondent on a day between the 2nd day of December 1967 and the 16th day of July 1968 at Gateshead England indecently assaulted G.S. a male person aged 8 years.
4. That the Respondent on a day between the 17th day of July 1968 and the 16h day of July 1969 at Gateshead England indecently assaulted G.S. male person aged 9 years.
5. That the Respondent on a day between the 17th day of July 1969 and the 16th day of July 1970 at Gateshead England indecently assaulted G.S. a male person aged 10 years.
6. That the Respondent on a day between the 18th day of December 1970 and the 17th day of December 1972 at Gateshead England indecently assaulted A.M.M. a male person aged 10 or 11 years.
7. That the Respondent on a day between the 18th day of December 1970 and the 17th day of December 1972 at Gateshead England other than that alleged at 6. indecently assaulted A.M.M. a male person aged 10 or 11 years.
It appears from the European Arrest Warrant that A.M.M. made his witness statement in August 2002, G.S. made his witness statement in April 2003 and T.R. made his witness statement in May 2003.
On Affidavit the Respondent deposes that he first became aware of the allegations made by G.S. in May 1988 when the same were brought to his attention by his Bishop Bishop Lindsay. This was on foot of a complaint made by G.S. to Dr. Miller who is now deceased Dr. Miller having reported the complaints to Bishop Lindsay. In October 2002 he became aware that there was an ongoing Police investigation in relation to the allegations made by G.S. and others and was aware from that time of the possibility of being extradited. This caused him concern and distress and he was in constant fear from October 2002 until his arrest on foot of the European Arrest Warrant on the 1st September 2005. He suffers from high blood pressure and disturbed sleep and he attributes these to his apprehension of arrest. On the day prior to his arrest his sister suffered a severe stroke and while on bail he cared for her.
Richard Edwin Glenister a barrister in the employment of the Crown Prosecution Service swore an Affidavit on behalf of the Applicant. He deposes that on the 14th January 2003 the Northumbria Police submitted a file to the Crown Prosecution Service Northumbria who considered the same and took advice of Counsel before deciding that proceedings should be instituted. On the 21st April 2004 the Crown Prosecution Service in London received papers from the Crown Prosecution Service Northumbria proposing the Respondent's extradition. The Crown Prosecution Service wanted to await the judgment of the Supreme Court in the extradition of Kenneth Dundon following his appeal against an order of the High Court on the 14th May 2004. However Mr. Glenister intended to make an application for a European Arrest Warrant in respect of the Respondent in January 2005 but there were queries on which he needed a response from the Northumbria Police. On the 16th March 2005 the Supreme Court gave judgment in the extradition of Kenneth Dundon. At about the same time the European Arrest Warrant Act 2003 was amended by the Criminal Justice (Terrorist Offences) Act 2004 which came into force on the 8th March 2005 and he required to consider this. Thereafter he submitted an application for the European Arrest Warrant on the 15th July 2005 to Bow Street Magistrates Court and the European Arrest Warrant was issued on the 1st August 2005.
The Applicant also relies on an Affidavit of Jason Elliot Barrister of Inner Temple as to the English law in relation to delay. Unlike this jurisdiction, in England judicial review does not lie in respect of matters relating to trial on indictment. However delay is an issue which can be raised before the trial Judge. His Affidavit may be summarised as follows –
1. The determination as to whether delay has been excessive is purely for the trial Judge.
2. Where a Defendant advances an account at Police interview an application grounded on delay is unlikely to succeed.
3. Where the trial Judge accepts that there have been admissions it is unlikely that the trial Judge will accept that prejudice exists.
4. In the trial witnesses can be cross-examined as to delay.
5. Cross-examination as to delay is seldom beneficial to an accused as there are invariably reasons not related to credibility which can explain delay by a complainant in reporting matters.
6. Rights afforded by the European Convention on Human Rights are available to an accused in England.
7. If an applicant for bail is of good character he could be expected to obtain bail but this cannot be guaranteed.
In his Affidavit Richard Edwin Glenister quotes extracts from the witness statements of each of the three complainants. A.M.M's statement is dated 3rd August 2002 and in it he says that the first person to whom he had spoken of his abuse was Fr. Brown the Respondent's successor at St. Wilfred's church and that this was on the 24th April 2002. He was put in touch with Fr. Tindall. T.R. in his witness statement of 27th March 2003 states that he was telephoned by the Respondent on the 10th February 2003 and in the course of the conversation the Respondent made admissions. It was after this telephone conversation that he decided to make a complaint to the Police. G.S. in his witness statement dated 17th April 2003 states that he disclosed the abuse to his sister when he was 24 – 25 years of age. He suffered from mental health problems which he blames on the abuse. He confronted the Respondent in 1983 – 1984. In 1987 he reported the matter to the Police but they did not take him seriously and did nothing about his complaints. He made several attempts to report the matter to church authorities. In 1987 he reported the abuse to his general practitioner Dr. Malcolm. Dr. Malcolm arranged for a meeting with the Respondent. During the course of the meeting the Respondent admitted the abuse. T.R. made his statement on the 29th May 2003. He disclosed the abuse in 1974 to his girlfriend who is now his wife. He did not wish anyone else to know about it. He disclosed the abuse to his family in 1996. In May 2003 his brother became aware that the Respondent was being investigated and at that time he decided to give a statement to the Police.
In this jurisdiction the Council Framework Decision of 13th June 2002 was given effect to by the European Arrest Warrant Act 2003. The legal foundation for the Framework Decision is the Treaty on European Union (Maastricht 7th February 1992) providing for judicial co-operation in criminal matters, the facilitation of extradition and the adoption of Framework Decisions for the purpose of approximating the laws and regulations of member states. The purpose of the Framework Decision is outlined in Recitals (5), (6), (10) and (11) of the Preamble –
"(5) The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between member states and replacing it by a system of surrender between judicial authorities. Further, 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 co-operation relations which have prevailed up until now between member 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.
(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 "corner stone" of judicial co-operation …
(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.
(11) In relations between member states, the European Arrest Warrant should replace all previous Instruments concerning extradition, including the provisions of Title III of the Convention implementing the Schengen Agreement which concern extradition."
Article 1.2 of the Framework Decision provides –
Article 3 lays down grounds on which the European Authorities of executing member states must refuse execution of a European Arrest Warrant and Article 4 grounds on which they may refuse. Neither Article 3 nor Article 4 are relevant here.
The principle underlying the foregoing provisions is that each member state is expected to accord due respect and recognition to the judicial decisions of other member states. It would be inconsistent with the principle of mutual respect for and recognition of the judicial decisions in other member states for the executing member state to enquire into the merits of a proposed prosecution in the requesting member state.
Finally the Framework Decision in Recital 12 expressly respects fundamental rights and observes the principles recognised in Article 60 of the Treaty.
The Framework Decision was given effect to by the European Arrest Warrant Act 2003. Two sections of the Act are relevant to this application – section 37 and section 40. These provide as follows
"37(1) A person shall not be surrendered under this Act if –
(a) his or her surrender would be incompatible with the state's obligations under -
(i) the Convention, or
(ii) the protocols to the Convention
(b) his or her surrender would constitute a contravention of any provision of the Constitution (other than for the reason that the offence specified in the European Arrest Warrant is an offence to which section 38(1)(b) applies)
"Convention" means the Convention for the Protection of Human Rights and Fundamental Freedoms done at Rome on the 4th day of November 1950, as amended by Protocol No. 11 done at Strasbourg on the 11th day of May 1994 and
"Protocols of the Convention" means the following protocols to the Convention, construed in accordance with Article 16 – 18 of the Convention:
(a) The Protocol to the Convention done at Paris on the 20th day of March 1952
(b) Protocol No. 4 to the Convention securing certain rights and freedoms other than those already included in the Convention and in the First Protocol thereto done at Strasbourg on the 16th day of September 1963.
(c) Protocol No. 6 to the Convention concerning the abolition of the death penalty done at Strasbourg on the 28th day of April 1983.
(d) Protocol No. 7 to the Convention done at Strasbourg on the 22nd day of November 1984.
(a) the act or omission constituting the offence specified in the European Arrest Warrant issued in respect of him or her is an offence under the law of the state, and
(b) the person could not, by reason of the passage of time, be proceeded against, in the state in respect of the second mentioned offence."
Insofar as the European Convention on Human Rights is concerned I believe to be correct the approach adopted in R v Secretary of State Ex Parte Rachid Rimda 2002 EWHC 1278 (ADMIN). Sedley L.J. giving the judgment of the Court had this to say:
"There is however, one issue of law in which it may be helpful to express our view now. This concerns the Home Secretary's reliance on recourse to the European Court of Human Rights to correct any eventual failure on the part of France to accord the claimant a fair trial. The European Court of Human Rights is not a court of appeal, and there is no recourse to it as of right (see Article 28) as Articles 13 and 35 of the Convention make clear, and as the Court itself has gone out of its way to stress (Kidla v Poland (2001) 10 EHRC 269). It is on national authorities that the primary duty both of compliance and of affording redress for non compliance rests. We do not consider that the Home Secretary will be justified, in spite of France's monist system of law, in treating Strasbourg as part of the French legal system."
Insofar as the Constitution is concerned in matters of extradition the Court has always had regard to the constitutional rights of the person sought to be extradited: Larkin v O'Dea (1995) 2 IR 485 and the Minister for Justice, Equality and Law Reform v S.R. the High Court Peart J. 15th November 2005. As with the Convention the duty of the Court is to be satisfied that constitutional rights are not infringed.
Section 40 of the Act of 2003 requires the Court to have regard to the passage of time since the commission of the offence and to determine whether the person sought to be extradited could having regard to the same be proceeded against in the State. Insofar as surrender might infringe a constitutional right of the person sought to be surrendered this is covered by the Act in section 37. Accordingly in applying section 40 of the Act the Court must have regard to other considerations. For this reason in Minister for Justice, Equality and Law Reform v McArdle the High Court 27th May 2005 I considered the approach adopted by the Courts in applying the Extradition Act 1965 section 50(2)(b) as a useful guide to the approach which the Courts should adopt in applying section 40. The Courts should have regard to passage of time in conjunction with all other circumstances of the case with a view to determining if it would be unjust or oppressive to order surrender. I am fortified in this view by the manner in which the Framework Decision was enacted into law in the United Kingdom by the Extradition Act 2003. Section 11(1)(c) prohibits extradition where by reason of passage of time it would be unjust or oppressive to do so. That provision was considered in Kociukow v District Court of Bialystok III Penal Division 2006 EWHC 56. As to the meaning of unjust or oppressive the Court cited with approval Kakis v Republic of Cyprus (1978) 2 All ER 634 and a passage by Lord Diplock –
"Unjust" I regard as primarily directed to the risk of prejudice to the accused in the conduct of the trial itself, "oppressive" as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration: but there is room for overlapping, and between them they cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view be relied upon as a ground for holding it to be either unjust or oppressive to return them. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them."
I propose now to deal with each of the issues which I have identified above.
1. Has there been such delay on the part of the prosecuting authorities as to infringe the Respondent's rights under the European Convention on Human Rights Article 6.
The Convention in Article 6 provides as follows –
"In the determination of his civil rights and obligations or of any criminal charges against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
The European Court has recognised the need for a fair balance between the general interests of the community and the personal rights of the individual: Sheffield v UK (1999) 5 BHRC 83 at para 52. Article 6 is not directed to lapse of time between the commission of an offence and the trial: rather it is directed to ensuring that criminal proceedings, once initiated, are prosecuted without undue delay. In Eckle v Germany (1982) 5 EHRR 1 at para 73 the European Court of Human Rights said –
"73. In criminal matters, the "reasonable time" referred to in Article 6(1) begins to run as soon as a person is "charged"; this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened. "Charge", for the purposes of Article 6(1), may be defined as "the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence."
I have regard to the dates upon which the Complainants gave their witness statements August 2002, April 2003 and May 2003. The application for a European Arrest Warrant was made on the 15th July 2005 and the warrant issued on the 1st August 2005. The European Arrest Warrant was endorsed in this jurisdiction on the 19th August 2005. The Respondent was arrested on the 1st September 2005. On the papers before me there was no official notification to the Respondent of an intention to prosecute him until the time of his arrest on the 1st September 2005. He was not prior to that date interviewed in connection with the alleged offences. In these circumstances the relevant date from which delay should be calculated is the 1st September 2005 and there has been no delay since that date. Article 6 of the Convention has no application in the circumstances of this case.
3. Has there been such delay on the part of the Applicant as to infringe the Respondent's rights under the European Convention on Human Rights Article 6.
4. Has there been such delay on the part of the Applicant as to infringe the Respondent's rights under the Constitution
These issues can be dealt with together. The European Arrest Warrant was issued on the 15th July 2005. It was endorsed for service pursuant to the European Arrest Warrant Act 2003 section 13(2)(a) on the 19th August 2005. The Respondent was arrested on the 1st September 2005. Simply by having regard to these dates I can be satisfied that there was no delay on the part of the Applicant.
2. Has there been such delay on the part of the prosecuting authorities as to infringe the Respondent's rights under the Constitution.
5. Would it be unconscionable, invidious, unreasonable and/or oppressive to surrender the Respondent given the unreasonable and unexplained delay on the part of the prosecuting authorities in the issuing State.
6. Should the surrender of the Respondent be denied pursuant to section 40 of the European Arrest Warrant Act 2003 as the passage of time since the commission of the offence is such that the Respondent could not be proceeded against within the State.
These issues concern firstly the conduct of the prosecuting authorities. In considering lapse of time the starting date for lapse of time is appropriately that upon which the witness statements of the three complainants had been obtained and in this case I am satisfied that the date upon which the last was obtained is the most relevant that is the 17th April 2003. From the Affidavit of Richard Edwin Glenister it appears that prior to this date on the 14th January 2003 the Northumbria Police submitted a file to the Crown Prosecution Service Northumbria who took the advice of Counsel before deciding that proceedings should be instituted. However subsequent to the 14th January 2003 the witness statements of two other complainants were obtained. On the 21st April 2004 almost one year after the receipt of the last statement was obtained the Crown Prosecution Service London received papers concerning the proposed extradition of the Respondent. I have no explanation for this delay. At that time the Crown Prosecution Service wanted to await the judgment of the Supreme Court in the extradition of Kenneth Dundon: Kenneth Dundon's extradition was dealt with in the High Court on the 14th May 2004: the Supreme Court delivered judgment on his appeal on the 16th March 2005. The Crown Prosecution Service did not await the outcome of the appeal but decided to apply for a European Arrest Warrant in respect of the Respondent in January 2005. At that time there were some queries which needed a response from the Northumbria Police. The European Arrest Warrant Act 2003 was amended by the Criminal Justice (Terrorist Offences) Act 2005 which came into force on the 8th March 2005 and this needed consideration. The application for the European Arrest Warrant was made on the 15th July 2005 and the warrant was issued on the 1st August 2005.
In addition to taking into account the foregoing dates I must also take into account the period of time which elapsed since the commission of the alleged offences: PP v Director of Public Prosecutions 2000 1 IR 403. In that case the first interview of the complainant was in November 1995. Thereafter a medical report was sought but was not received until 15th June 1996. The Applicant was available for interview with reasonable diligence but the interview did not take place until the 22nd January 1997. The investigating detective was off duty sick for 19 weeks following March 1997. He was also involved in the investigation of another major crime. The investigating detective would have resumed duties in or about August 1997. It does not appear from the judgment when a file was sent to the Director of Public Prosecutions but it is noted that he acted with commendable expedition: nor is it clear when the prosecution commenced. Geoghegan J. injuncted the Respondent from proceeding with the prosecution: unfortunately however the total period of delay is not recorded in the judgment. There are however mitigating factors in the present case which must also be taken into account. The Respondent was not available for interview having departed from the United Kingdom although it is not the case that he did so with a view to avoiding prosecution. The delay in part was attributable to the authorities awaiting the outcome of the Dundon case: commendably they did not await the outcome of the appeal but decided to proceed and apply for a European Arrest Warrant in January 2005. The effect of amendments contained in the Criminal Justice (Terrorist) Offences Act 2005 which came into force on the 8th March 2005 had also to be considered.
I fully accept what was said by Geoghegan J. in PP v Director of Public Prosecutions at page 411 –
"I think that where there has been a long lapse of time, as in these prosecutions for sexual offences, between the alleged offences and the date of the complaint to the Guards, it is of paramount importance, if the Accused's constitutional rights are to be protected that there is no blameworthy delay on the part of either the Guards or the Director of Public Prosecutions."
In BF v The Director of Public Prosecutions 2001 1 IR 656 the offences were committed in April and May 1995. Almost immediately thereafter the Appellant was interviewed and made a statement. An Extradition Order was not sought from the District Court until November 1997. The Appellant was arrested in the United Kingdom on the 3rd February 1998. Special circumstances considered by the Court in that case were the young age of the Appellant and the fact that his whereabouts were known to or could easily be ascertained by the Gardai. Thus the delay in question was some two years and nine months and the Supreme Court restrained the Respondent from further proceeding with the prosecution.
Apart from delay I am not satisfied that the Respondent has established any prejudice suffered by him in consequence thereof. The Respondent deposes that G.S. made a complaint to a Dr. Miller who in turn reported the complaint to Bishop Lindsay who informed the Respondent of the same. It would appear that this occurred in or about May 1988. Dr. Miller is now deceased but I am not told when he died or indeed whether his evidence if available would be of any assistance to the Respondent: the onus is on the Respondent to satisfy me as to prejudice on the balance of probability and he has failed to do so.
Taking all the circumstances into account and the explanations furnished for the delay between the last statement from the Complainant being obtained in May 2003 to the application for the European Arrest Warrant on the 15th July 2005 a period of two years and two months I find to be excessive delay and that the same has not been justified or excused.
Section 40 of the Act of 2003 preserves the position under Irish law of a person whose surrender is sought where there is prosecutorial delay. It does not enhance the position. As I am satisfied that the Respondent could not by reason of prosecutorial delay in this jurisdiction be tried he could not having regard to section 40 of the Act of 2003 be surrendered.
For completeness sake I should have regard to the combined lapse of time contributed to by complainant delay and prosecutorial delay. Having regard to the lengthy period of complainant delay I am satisfied considering the same together with the prosecutorial delay the Respondent's position has been further adversely affected
7. Should the surrender of the Respondent be denied on the grounds of inordinate and inexcusable delay on the part of the Complainants
That complainant delay is a ground for prohibiting a prosecution for proceeding is well established in Irish law. I am satisfied on the Affidavit of Jason Elliot that the position on the law as applied in England in relation to delay is similar to that in this jurisdiction. There is however one important difference which appears from the Affidavit of Jason Elliot. In the United Kingdom judicial review does not lie in respect of matters relating to trial on indictment. Thus delay is a matter for the trial judge. From this it follows that the issue of delay cannot be tried independently of the issue of guilt or innocence. If the Respondent wished to raise the issue of delay at his trial he would be unable to gain credit which would be available to him for an early plea of guilty. The Respondent is thus disadvantaged in that his position is different from that which would appertain if the offences alleged against him had been committed within this jurisdiction and his trial were to take place here.
That there has been complainant delay in the case of all three complainants is without question. The Court finds itself however in a different position to a Court considering whether proceedings within this jurisdiction should be stayed on the grounds of complainant delay. It does not have the detailed evidence of any explanation for the delay. It has however evidence of the disparity in ages between the complainants and the Respondent. It has evidence of the relationship between them – priest and altar boy. The Affidavit of Richard Edwin Glenister quotes extracts from the witness statements of each of the Complainants and in each case the quotations suggest an explanation for the delay. At trial such explanation might or might not be accepted as sufficient. As with compliance with the European Convention on Human Rights the Court must be satisfied that constitutional rights will be respected. In this case I cannot be so satisfied on the information before me. On this ground also I will not order the surrender of the Respondent.
While the procedure in the United Kingdom whereby issues relating to delay are determined at the trial rather than by way of judicial review may be less favourable to the Respondent that those which would apply in this jurisdiction it must be recognised that in each member state procedures will differ without the difference rendering the trial unfair. What is required by the Framework Decision is the establishment of a system of free movement of judicial decisions in criminal matters and that member states should execute a European Arrest Warrant on the basis of the principle of mutual recognition based on a high level of confidence between member states. To give effect to this policy it is appropriate notwithstanding a difference in procedure that a Respondent should be surrendered unless the difference is such as to infringe a constitutional right.
Having regard to the foregoing the surrender of the Respondent should not be ordered.
Approved: Finnegan P.