High Court of Ireland Decisions

Judgment Title: Minister for Justice Equality and Law Reform v J.B.F

Neutral Citation: [2006] IEHC 191


High Court Record Number: 2006 18Ext

Date of Delivery: 30/05/2006

Court: High Court

This judgment is circulated in a redacted form to avoid identification of the parties

J. B. F.

It was not until the 28th April 2004 that a domestic warrant was issued for the arrest of the respondent at Coventry Magistrates’ Court, West Midlands, England. According to an affidavit sworn by Peter Frisby, an official in the Department of Justice, Equality and Law Reform in relation to the delay in having the warrant endorsed, the European arrest warrant which issued on the 26th November 2004 was received by the Central Authority in this State on the 24th February 2005. He has averred that thereafter certain advices were sought from counsel in relation thereto at the behest of the Attorney General, and following the receipt of those advices, the Central Authority communicated with the requesting authority in England by letter dated 1st April 2005. It was some nine months later on the 6th January 2006 that a response was received from the English authority.

Thereafter on the 14th February 2006 an application was made to the High Court pursuant to s. 13 of the European Arrest Warrant Act, 2003 (as amended) (“the Act”) for the endorsement of the European arrest warrant for execution.

The respondent was arrested in this jurisdiction by Sgt. M. O’N. of An Garda Siochána on the 17th February 2006 and immediately brought before the High Court on that date, whereupon, having been satisfied as to compliance with the requirements of s. 13 of the Act the respondent was remanded on bail pending the hearing of the present application under s. 16 of the Act, the respondent having also filed and delivered his Points of Objection on the 27th February 2006.

I have set forth this chronology of relevant events as one of these Points of Objection relates to delay/lapse of time, and its consequences for the respondent. I will come to those submissions in due course.

Patrick McGrath BL, on behalf of the applicant, applied for an order for the surrender of the respondent.

Under s. 16(1) of the Act, this Court may make the order sought in this case provided it is satisfied as to a number of matters set out in that section, namely:

(a) that the person before the Court is the person in respect of whom the warrant was issued;
(b) the warrant has been endorsed in accordance with section 13 of the Act for execution;
(c) where appropriate (i.e. in cases of a conviction/sentence imposed in absentia) an undertaking as required by section 45 of the Act;
(d) that the Court is not required to refuse to surrender the respondent under sections 21A, 22, 23 or 24 of the Act;
(e) that the surrender of the respondent is not prohibited by Part III of the Act, or the Framework Decision annexed thereto.

In addition the Court must be satisfied in relation to correspondence of the offences charged, and that the offences referred to in the warrant would carry in requesting state a penalty of the required minimum gravity, namely a maximum term of imprisonment of not less than twelve months, and also, as required by section 10 of the Act as amended, that a decision has been made by the requesting authority to charge and prosecute the respondent with the offences specified in the warrant.

Mr McGrath has submitted that the Court can be satisfied in relation to all of these matters in the case of the respondent. Specifically, in relation to correspondence he submits that the acts alleged against the respondent would, if committed in this State on the relevant date constitute offences of sexual assault under s. 2, sub-section (1) of the Criminal Law Rape (Amendment) Act 1990 which provides:

“Sexual assault.

2. (1) The offence of indecent assault upon any male person and the offence of
indecent assault upon any female person shall be known as sexual assault.”

He submits also that the minimum gravity requirement for such an offence for the purpose of an order of surrender is fulfilled by the provisions of s.2 (2) of the said Act namely:

“ (2) A person guilty of sexual assault shall be liable on conviction on
indictment to imprisonment for a term not exceeding 5 years.”

Mr McGrath has submitted that the narrative of the alleged acts and surrounding circumstances of the alleged offences as contained in the warrant make it clear that what is alleged to have occurred would be an assault accompanied by circumstances of indecency. Mr Kelly on the other hand has submitted that there is nothing alleged in the narrative to disclose an assault, in the sense that there is nothing which suggests that there was no consent on the part of the complainant to what is alleged to have taken place. Mr McGrath submits however that there is ample factual description within the statement from which an inference can be drawn that the complainant did not consent to what was alleged to be taking place. I agree. For example, and without setting out any verbatim content, it is clearly stated that when the acts occurred the complainant got up from where she was in the room and went to sit on a chair away from the respondent, but that he then told her to sit on his lap. She stated that she was scared and did not know what to do. On the way home it is alleged she asked her sister if she had seen what had happened, and that she told her sister to say nothing to their mother because she did not want to cause trouble. In my view there is sufficient narrative from which to infer the necessary lack of consent for the purpose of correspondence on this application.

Mr Kelly raises a second point namely whether there are in fact three offences raised at all in the narrative of facts set forth in the warrant, or only one offence. While it is clear that all the individual acts alleged took place within a short enough space of time on the same date, there are clear grounds for potentially regarding them as separate events. I am satisfied about this from a reading of that narrative. The alleged acts are different both as what was done and as to time. It is not just one continuum of action which is alleged against the respondent.

I can add also that Kieran Kelly BL for the respondent has helpfully conceded that no issue is raised by the respondent in relation to the warrant being duly issued in the requesting state. Neither has any issue been raised as to the identification of the respondent or the manner in which his arrest was carried out and compliance with the requirements of s. 13 regarding what documentation is furnished to the respondent and what he was informed as to his rights and entitlements thereunder.

The respondent raises other objections to surrender on the basis that his surrender is prohibited under Part III of the Act.

Firstly, Mr Kelly submits that his surrender is prohibited under s. 37(1) of the Act, which provides:



“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.”

In this respect, he submits that on the facts of this case the surrender of the respondent would infringe Articles 38, 40.1, 40.3, 41 and 42 of the Constitution. Essentially this submission is grounded on what Mr Kelly regards as the unreasonable and excessive delay on the part of the U.K. authorities and the relevant authorities in this State in the various steps leading up to the arrest of the respondent and the application for his surrender on foot of the European arrest warrant.

This delay is said to cause an infringement of a number of constitutional rights, including under Articles 34.1, and 35.2 of the Constitution. While these articles are referred to in the Points of Objection filed, no written or oral submissions referred to them, and since they are clearly not of any relevance to the present case I do not propose to consider them.

Mr Kelly points to the delay in this application coming before the Court. I will set out the history of the matter as it appears from the respondent’s affidavit.

As I have already set forth the alleged offences are said to have occurred in 26th May 2002. In his affidavit, the respondent has sworn that on the 27th May 2002 he received a phone-call in which he states that he was verbally abused. He does not say from whom the call was received, but goes on to state that on the following day he returned to the complainant’s grand-parents house to find out what the problem was. He states that he was physically attacked on that occasion by the complainant’s grand-parents and that an accusation was levelled against him that he had done something of a sexual nature. He states that he was not aware of that, he went to the police, reported the allegation to them, and was told by the police that no report of any such allegation had been made to them at that stage, and that since it was a family matter he would be well advised to go back to Ireland.

He states that on his return he continued to receive threatening phone-calls and text messages, which included a threat that his house would be burnt down, which caused him to move out of his home. He returned home about August 2004, and then set about dealing with home difficulties that had resulted from his moving out, such as school non-attendance by his sons, and some debts which had built up. He is of the view that in the one and a half years which followed his return he turned things around domestically, ensuring that his sons returned to school. He has stated that he works as a b. d. and has arranged his work around his family requirements. He cooks and helps his sons with homework, and he is of the view that he has built strong bonds with his sons and that they have now a strong family unit. I should perhaps have referred to the fact that he is separated from his wife who resides in Northern Ireland, according to his affidavit. He has also taken out some loans with a Credit Union to address the debts which had built up.

He does not understand how it has taken from May 2002 until the present time to progress matters to the present stage where his surrender is being sought. He has never been questioned about any allegations and has not been invited to interview. He feels prejudiced by this delay and the allegations being made, and he suggests that the delay has resulted in a situation where all he can do by way of defending himself against the allegations at any trial is to deny that anything happened. He believes that if he is surrendered to England he will be in custody awaiting trial and that the family

life which he has succeeded in building up will be destroyed to the detriment of the health, welfare and education of his children.

Any order for surrender is submitted to constitute a breach of constitutional rights guaranteed by Articles 38 and 40 of the Constitution, which as relevant provide as follows:

“Article 38

1. No person shall be tried on any criminal charge save in due course of law……

Article 40

1. All citizens shall, as human persons, be held equal before the law……

Mr Kelly submits firstly that none of the delay can be laid at the door of the respondent. I agree. He is not in any way responsible for any of the delay which has undoubtedly taken place. He submits also that the fact that he has never been asked to make a statement or submit to interview in relation to the allegations is a breach of his right to fair procedures, and that he should have been afforded the opportunity to give an account of the matter before his liberty was removed without any warning when the Gardaí arrived at his door to arrest him on foot of this warrant. The submission is that if the warrant had been executed in a timely fashion the respondent’s constitutional rights would not have been compromised as to the ability to defend himself and having a trial in due course of law in the sense of within a reasonable time.

Mr McGrath for the applicant submits on the other hand that even if there has been some delay on the part of the requesting authority in progressing the matter, and in this respect he acknowledges that there seems to have been a delay of about nine months in providing a response to the Central Authority’s letter of the 1st April 2005, it is nowhere near the sort of length of delay which the Courts have considered to justify a refusal to extradite in the past, and that the respondent has failed to demonstrate a violation of his rights or any factor which would justify a refusal of the order sought.

I cannot regard the sort of delay which occurred in this case as coming anywhere near the sort of length of delay which could give rise to a breach of constitutional right such that would warrant a refusal of the obligation to order surrender under the Act and the Framework Decision. It requires something quite exceptional both in terms of length and consequence/prejudice to bring the s. 37 provisions into play. There is nothing of any significance contained in the respondent’s affidavit as to how he is prejudiced in the ability to defend himself. There is no suggestion that any witness is no longer available, and I suspect that he is in the same position now to defend himself as he would have been at any stage since May 2002.

As regard the submissions related to breach of family rights, the following articles are referred to:

“Article 41

1. 1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

1. The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.”

“The process by which one State transfers a person to the custody of another State for the purpose of standing trial on a criminal charge or serving a sentence, whether it be called extradition, rendition or surrender, is a long established means of cooperation between States with a view to upholding the rule of law and combating all forms of criminal activity whether national or transnational………”

“Whether or not the claimant was brought before the judge at Bow Street as soon as practicable is a question of fact. Two points should be noted. First the criterion is ‘practicable’ rather than the more elastic ‘reasonably practicable’. Second the draftsman has chosen the practicability rather than the more precise criterion of a specified period as, for example, 48 hours in s. 6(3) of the 2003 Act. There will no doubt be cases at the margins where views could reasonably differ whether the applicant was indeed brought before the appropriate judge as soon as practicable. But that is not this case. …….. No one suggests that it was not practicable to bring him to London that day. He could have been brought to Bow Street and the District Judge was very unhappy that he was not……… I have no hesitation in concluding that the applicant was not brought before an appropriate judge as soon as practicable.”