High Court of Ireland Decisions

Judgment Title: MJE -v- Adams

Neutral Citation: [2011] IEHC 366


High Court Record Number: 2010 68 EXT

Date of Delivery: 03/10/2011

Court: High Court

Introduction
The respondent’s rendition is sought by the United Kingdom of Great Britain and Northern Ireland (hereinafter “the U.K.”) on foot of a European arrest warrant issued by a competent judicial authority in Northern Ireland on the 26th January, 2010, so that he may be prosecuted in Northern Ireland for the eighteen alleged offences particularised in said warrant. That warrant was subsequently endorsed for execution in this jurisdiction by the Irish High Court (Peart J.) on the 3rd March, 2010.

The respondent was arrested on the 4th March, 2010, by Sergeant James Kirwan at the Bridewell Garda Station, Dublin 7, but does not consent to his surrender to the issuing state. Accordingly, this Court is now being asked by the applicant to make an order pursuant to s. 16 of the European Arrest Warrant Act 2003, as amended, (hereinafter referred to as “the Act of 2003”) directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him. In the circumstances the Court must enquire whether it is appropriate to do so having regard to the terms of s. 16 of the Act of 2003.

The respondent, as is his entitlement, does not concede that any of the requirements of s. 16 aforesaid are satisfied. Accordingly, as no such concessions have been made, the Court is put on inquiry as to whether the requirements of s. 16 of the Act of 2003, both controversial and uncontroversial, have been satisfied. This Court’s jurisdiction to make an order directing that the respondent be surrendered is dependant upon a judicial finding that the requirements have been so satisfied.

Insofar as specific points of objection are concerned, a lengthy and detailed points of objection document has been filed, and it is appropriate at this stage to quote in full the substantive points of objection raised:-

“2. The Respondent is entitled to be provided with professional legal advice and representation. Allied to that (in light of prevailing jurisprudence regarding the onus on the requested person) is the facility for his legal representatives to procure evidence required to substantiate any points of objection. The Respondent (sic) has failed and/or refused to provide resources to the Respondent pursuant to the Attorney General’s scheme to professionally accumulate the material written and broadcast concerning the Respondent herein concerning the charges the subject matter of the European Arrest Warrant. Unless and until the Respondent is provided with the required facility he is not being provided with meaningful legal representation and advice.

3. The Respondent contends that the European Arrest Warrant procedure and the Framework Decision did not contemplate the surrender of a person in 2010 for offences which are alleged to have occurred prior to 1983, in circumstances where a file was submitted to the Director of Public Prosecutions on the 14th of April 1987, and thereafter there followed a delay of 12 years before a direction of no prosecution issued on the 7th May 1999. The Respondent, if surrendered, would be deprived of a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law as provided for in Article 6 of the ECHR. The surrender of the Respondent offends the principle of proportionality.

4. The surrender of the Respondent on the basis of the European Arrest Warrant herein would be otherwise than in accordance with section 11 of the European Arrest Warrant Act, 2003 (as amended), and Article 8 (e) of the Framework Agreement in that the said warrant does not specify, adequately or at all, the date and location of the alleged offences.

5. The surrender of the Respondent on the basis of the European Arrest Warrant herein would be otherwise than in accordance with section 5 and section 38 of the European Arrest Warrant Act, 2003 (as amended), insofar as same pertains to offence no. 1, in that the facts which purport to constitute the basis of this alleged offence of indecent assault do not correspond to an offence in the State.

6. The Respondent intends that the issue of whether or not the Respondent will be subjected to an unfair trial is a matter of adjudication by the Irish courts and it is contended that the Minister for Justice v. Stapleton was wrongly decided. This is particularly so when the charges are of such antiquity, vague in location and time, where a decision was previously taken not to prosecute in 1999, where there have been significant changes disadvantageous to the Respondent, in relation to both the trial procedure (anonymity of accused/challenges to jurors) and the extradition procedure (absence of a right of appeal without certification) and where the delay in laying charges has permitted a situation to develop where the Respondent who had moved on with his life has now been widely condemned and viewed as a guilty man. The 8th recital to the Framework Decision acknowledges that the decisions on the execution of the European Arrest Warrant must be subject to sufficient controls and requires that a judicial authority of the Member State where the request of the person has been arrested must take the decision on his or her surrender. The scrutiny of the executing judicial authority is required to safeguard the integrity of the extradition process itself.

7. The surrender of the Respondent is prohibited by part three of the European Arrest Warrant Act 2003 (as amended), in that the surrender of the Respondent would be incompatible with the State’ obligations under the Convention (in particular Article 6) and/or the Constitution (in particular Article 38). The Respondent should not be surrendered to the issuing State to be subjected to a trial in circumstances were such trial cannot occur otherwise than in breach of Article 6 of the Convention and in breach of his constitutional rights and specifically in circumstances where he does not enjoy the presumption of innocence. The issuing State has failed to ensure that the Respondent will obtain a fair trial by causing, allowing or permitting untrue assertions of his guilt to be disseminated throughout the media, by inter alia, a member of the legislative assembly and member of Parliament and President of the leading political party. The issuing State has failed to take any steps to prevent this occurrence and has failed to ensure that persons in the position of the Respondent retained their anonymity and/or are not the subject of widespread condemnation in advance of trial.

8. The surrender of the Respondent is prohibited by Part 3 of the European Arrest Warrant Act 2003 (as amended), in that the surrender of the Respondent would be incompatible with the State’s obligations under the Convention and/or the Constitution, by reason of the delay since the alleged offences and the consequent prejudice suffered by the Respondent. All the charges the subject of the request allegedly occurred prior to 1983. An investigation file was submitted to the Director of Public Prosecutions on the 14th of April, 1987. There was then a delay of 12 years before a direction of no prosecution issued on the 7th of May, 1999. No further steps were taken in furtherance of a prosecution until 2007. The delay has prejudiced the Respondent. (1) Since the alleged occurrence of these offences, the issuing State effected a change in the law and determined that those persons facing rape charges were no longer entitled to retain their anonymity. (2) Further by delaying in bringing charges the laws of contempt of court have not been available to protect the integrity of the trial process and the Respondent's right to a fair trial by an impartial adjudicator(s). In consequence thereof the Respondent has been widely condemned as a guilty man throughout all forms of media by persons of repute and holding public positions of authority. The Respondent consequently faces a real risk of an unfair trial. (3) The unfairness is compounded by the fact that the Respondent faces a jury trial and there have been substantial changes to the law in the issuing State regarding jury selection. The defence used to have the right to 12 peremptory challenges and unlimited challenges for cause. All peremptory challenges have been abolished and such scant information is supplied to the defence concerning the jurors that challenges for cause shown are theoretical. This unfairness is acute given the polarisation of the community in Northern Ireland and where the Respondent is a person of known political affiliation. (4) The delay has also prejudiced the Respondent in that he no longer has the right to appeal the decision of the High Court in the absence of certification, a situation which would not have obtained had the issuing State Acted with any degree of reasonable expedition.

9. The surrender of the Respondent is prohibited by Part 3 of the European Arrest Warrant Act, 2003 (as amended), in that the European Arrest Warrant was issued in respect of the Respondent for the purposes of facilitating his prosecution and/or punishment in the issuing State for reasons connected with his political opinion and/or he will be treated less favourably than a person who does not hold the same political opinions as him. The Respondent has been uniquely disadvantaged by virtue of his association with Sinn Fein and leading politicians therein. His association has resulted in both widespread and damning media reporting of the matter. The prosecution of the Respondent at this time can properly be regarded as being politically motivated. His association with Sinn Fein has resulted in the Respondent being treated differently than other persons accused of criminal offences both by his own political party and also by those in opposing parties seeking to take advantage of and generate political capital from his familial and political association with Sinn Fein.

10. Further and/or in the alternative, arising from matters outlined above, there are reasonable grounds for believing that the Respondent will be subject to inhuman and/or degrading treatment if returned to the issuing State. The Respondent fears on reasonable grounds that he will be subjected to 24 hour lock-up if imprisoned either on remand or otherwise.

11. The judicial decision underpinning the request for extradition was made on the 26th of January 2010, and the European Arrest Warrant, which was purportedly based upon that decision was issued on the 26th of January, 2010. Both orders are deemed to have taken effect at the same time on the 26th of January, 2010. Therefore when the European Arrest Warrant took effect there was no pre-existing judicial decision on which it could be grounded. Consequently the European Arrest Warrant is defective and not in accordance with the Framework Agreement.”

(a) the person before it is the person in respect of whom the relevant European arrest warrant was issued;

(b) the European arrest warrant has been endorsed for execution in accordance with s. 13 of the Act of 2003;

(c) as the person named in the European arrest warrant is wanted for prosecution no issue can arise as to trial in absentia such as to require an undertaking under s. 45 of the Act of 2003;

(d) the European arrest warrant is in the correct form;

(e) the High Court is not required under ss. 21A, 22, 23, or 24 of the Act of 2003 (as inserted by ss. 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005) to refuse to surrender the respondent.

Evidence on Behalf of the Respondent
The respondent has filed a number of affidavits setting out the evidential basis for his objections. There are two affidavits sworn by the respondent personally, dated the 5th July, 2010, and the 6th October, 2010, respectively. The respondent also relies upon an affidavit of his solicitor in this jurisdiction, Mr. James McGuill, sworn on the 6th July, 2010, and on an affidavit of his solicitor in Northern Ireland, Mr. Philip Breen, sworn on the 15th July, 2010.

Rather than summarise the evidence adduced on behalf of the respondent at this stage, the Court will refer to it where necessary in dealing with specific points of objection.

Evidence on Behalf of the Applicant
The applicant has also filed a number of affidavits setting out the evidential basis for his responses to certain of the respondent’s objections. In that regard, the applicant relies upon an affidavit of Mr. Gerald Eric John Simpson, a barrister practising for many years in Northern Ireland both as junior counsel and as Queen’s Counsel, sworn on the 24th March, 2011. He also relies upon an affidavit of a governor in the Northern Ireland Prison Service, a Mr. Alan Craig, sworn on the 19th April, 2011.

Once again, rather than summarising the evidence adduced on behalf of the applicant at this stage, the Court will refer to it where necessary in dealing with specific points of objection.

Correspondence and Minimum Gravity
For convenience, I propose to deal first with correspondence and minimum gravity, as these are issues which are largely, but not entirely, uncontroversial. The controversy such as it is relates to whether offence no 1 mentioned within Part E of the European arrest warrant can be said to correspond with an offence in Irish law. There is a specific point of objection relating to this (point of objection no. 5). However, quite apart from any specific objection raised, the Court must be “satisfied” that the requirements of the Act of 2003, with respect to both correspondence and minimum gravity, are met in respect of all of the offences covered by the warrant.

As previously stated, the European arrest warrant, dated the 26th January, 2010, is a prosecution type warrant and the respondent is wanted in Northern Ireland for trial on indictment on eighteen individual proposed counts or charges. It appears from Part B of the European arrest warrant that there are eighteen underlying domestic (i.e. Northern Irish) arrest warrants, also dated the 26th January, 2010, relating to five alleged rape offences; seven alleged indecent assault offences; and six alleged offences of gross indecency with or towards a child.

The eighteen alleged offences in question are particularised and listed no.’s 1-18 inclusive in Part E of the European arrest warrant. Further, at Part E. I. of the European arrest warrant, the box relating to “rape” is ticked. Accordingly, the issuing state has sought to invoke Article 2.2. of the Framework Decision in respect of at least some of the eighteen offences in question. The exact position is then clarified at Part E. II. of the European arrest warrant where it is indicated that the offences not covered by Part E. I. (i.e. the offences in respect of which Article 2.2. of the Framework Decision is not being invoked) are the offences relating to indecent assault and gross indecency with or towards a child, i.e., those listed as offences no.’s 1, 2, 3, 5, 6, 8, 9, 11, 12, 14, 15, 16 and 17, respectively. Accordingly, Article 2.2. of the Framework Decision is being invoked in respect of the remaining five offences, i.e., no.’s 4, 7, 10, 13 and 18, respectively, all of which allege rape.

Part C of the European arrest warrant indicates that in the issuing state “a person guilty of rape shall on conviction on indictment be liable to imprisonment for life”. Therefore, as the five offences in question (i.e., offences no.’s 4, 7, 10, 13 and 18, respectively) are each punishable by imprisonment for a maximum period of not less than 3 years, s. 38(1)(b) of the Act of 2003 applies, and, in circumstances where the legal requirements with respect to minimum gravity are clearly met, correspondence does not require to be demonstrated in respect of those five offences.

Both correspondence and minimum gravity requirements must be established with respect to the remaining thirteen offences.

In relation to the seven alleged offences numbered 1, 2, 5, 8, 11, 14 and 16, respectively, the applicant invites the Court to find correspondence under the law of this jurisdiction with the offence of indecent assault of a female at common law for which, as far as the time line relevant to this case is concerned, a penalty was provided by statute, either by s. 6 of the Criminal Law (Amendment) Act 1935 (where the offence occurred prior to the 6th June, 1981, which was the date of commencement of the Criminal Law (Rape Act) 1981), or by s.10 of the Criminal Law (Rape) Act 1981 (where the offence occurred on or after the 6th June, 1981), said penalty in both cases being in substitution for the two year penalty originally provided by s. 52 of the Offences Against the Person Act 1861.

While making no formal concession on the correspondence issue, the respondent has not, save with one exception, sought to cavil or otherwise engage with the applicant’s contention that the Court can be satisfied as to correspondence on the basis suggested. The exception in question relates to offence no. 1. The alleged offence in question, as particularised in Part E, alleges that the respondent “on a date unknown between the 23rd day of March 1977 and the 31st day of May 1978 in the County Court Division of Belfast, indecently assaulted a female, namely Áine Adams, contrary to s. 52 of the Offences Against the Person Act, 1861”.

The alleged facts relating to this offence are identified both in Part E of the warrant itself and, with some further particularity, in additional information furnished by the issuing state in correspondence responding to queries raised by the Irish Central Authority.

Insofar as Part E of the warrant is concerned, it is stated therein:-

“In the course of the video taped interviews and in her written statement Aine Adams did not detail every incident of abuse carried out on her by her father. She did recall some specific incidents and variously:

…….


(iii) described a specific incident which had happened when her brother Liam Adams was ill and the family were living at Whiterock Drive, Belfast, Northern Ireland. She described how her father got into her bed and started touching her. She stated that there was “just touching” on this occasion.

…….”

“This charge relates to an incident which Áine describes in her video interview on 6th December 2006 when she says that she remembers that one night when her brother Liam was sick her father came into her and there was “just the touching”. In the context of her immediate description of subsequent incidents of rape it can be inferred that this touching was indecent.”

“Charge 1 is based on an allegation made by Áine Adams that on one occasion when her brother Liam Adams was ill and the family were living at Whiterock Drive, Belfast, Northern Ireland, her father Liam Dominic Adams came into her and started touching her. In the context of her immediate description of subsequent incidents of rape in her interviews and statements it can be inferred that this touching was indecent.”

The applicant, however, contends that the Court is entitled to consider as a whole all of the information provided in the European arrest warrant itself, and the subsequent letters containing additional information. Dealing specifically with offence no. 1, the applicant submits that when regard is had to the totality of the information provided, it is reasonable, having regard to the context and circumstances within which the allegation of touching was made, to infer that the alleged touching in question was an indecent touching.

The Court has also considered the seven alleged indecent assault type offences as particularised in Part E and in considering the underlying alleged facts, has considered the totality of the information furnished both within the warrant itself and in additional information. The Court is satisfied that, for the purposes of determining the issue of correspondence, the information provided in each instance is sufficiently detailed and specific to enable it to understand the nature and substance of what is being alleged. In that regard, I am satisfied that in each instance, including alleged offence no. 1, it is being alleged in substance that Áine Adams, a female person, was assaulted by the respondent in circumstances of indecency. Accordingly, the Court is satisfied that each of the alleged offences numbered 1, 2, 5, 8, 11, 14 and 16 in Part E of the European arrest warrant correspond with the offence of indecent assault of a female at common law.

Insofar as minimum gravity is concerned, the maximum penalty for indecent assault of a female in the issuing state under the relevant statutory provision (s. 52 of the Offences Against the Person Act 1861) is two years imprisonment. Accordingly, the requirements of s. 38 (1)(a)(i) of the Act of 2003, with respect to minimum gravity, are satisfied in the case of each indecent assault offence, i.e., the alleged offences numbered 1, 2, 5, 8, 11, 14 and 16 in Part E of the European arrest warrant.

In relation to the remaining six offences numbered 3, 6, 9, 12, 15 and 17, respectively, namely the alleged offences of gross indecency with or towards a child, the applicant again invites the Court to find correspondence with the offence of indecent assault of a female at common law. Although the respondent has raised no specific objection to the suggested basis for correspondence, this aspect of the matter has caused the Court some difficulty.

Section 5 of the Act of 2003 refers to the “act or omission that constitutes the offence” as being the basis for correspondence. In Minister for Justice, Equality and Law Reform v. Altaravicius (No. 2) [2007] 2 IR 265 the approach of Supreme Court in Attorney General v. Dyer [2004] 1 IR 40 was endorsed in relation to s. 5 of the Act of 2003. The court acknowledged (at p. 280 of the report) the principles identified by Fennelly J. therein:-

“1. In considering whether correspondence has been established, the court looks to the facts alleged against the subject of their quest, as opposed to the name of the offence for which he or she is sought in the requesting state, and considers whether these facts or this conduct would amount in this State to a crime of the necessary minimum gravity;

2. In considering correspondence therefore the court is concerned not with the name of the offence for which he or she is sought in the requesting country but the criminal conduct alleged in the request or warrant, and;

3. In the absence of anything suggesting that the words used in a warrant had a different meaning in the law of the requesting state, the question of correspondence was to be examined by attributing to such words the meaning they would have in Irish law.”

“Any person who commits an act of gross indecency with or towards a child, or who incites a child to such an act with him to another, shall be guilty of an offence and shall be liable

(a) on conviction on indictment to imprisonment for a term not exceeding two years;

(b) on summary conviction to a fine not exceeding one hundred pounds or to imprisonment for a term not exceeding six months or to both.”

Whilst s. 52 of the Offences Against the Person Act 1861, enacted under the heading “Rape, Abduction and Defilement of Women”, provided for a maximum penalty of two years imprisonment on conviction “of any indecent assault upon any female”. This penalty has been extended on several occasions. The Court has indeed already identified s. 6 of the Criminal Law (Amendment) Act 1935 and s. 10 of the Criminal Law (Rape) Act 1981 as relevant in that regard. The former extended the term of imprisonment in respect of such offences to five years (in the case of a second or subsequent offence) and the latter extended it to ten years. However, the offence itself has remained a creature of the common law. In spite of changes to the law on sexual crime, with the essential “rebranding” of the gender-specific offences of gross indecency (male) and indecent assault (female) to form the gender-neutral and conduct-based offence of “sexual assault” under s. 2 of the Criminal Law (Rape)(Amendment) Act 1990, the offence has clung to its common law roots. It is noteworthy in that regard that s. 2 of the Criminal Law (Rape)(Amendment) Act 1990 states that “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”.

A definition for the offence emanates from the case law of the 1990s: in Doolan v. D.P.P. [1993] I.L.R.M. 387, O’Hanlon J. provided a definition for the offence of “indecent assault”, stating at p. 392 that:-

“An indecent assault involves the use of unlawful force, threatened or perpetrated against another person, it was an offence at common law, and in my opinion, it was permissible for parliament to prescribe a special range of penalties for assault, or assault and battery, of this particular kind without having to spell out the creation of a new statutory felony or misdemeanour in the process.”

“It is clear…that the offence of indecent assault remains but…it became known as sexual assault. It still remains a common law offence for which punishment is provided by statute.”

The offence itself consists of an assault accompanied by circumstances that are objectively indecent. Traditionally, the law did not differentiate between an adult and a child victim. However, the introduction of s. 14 of the Criminal Law Amendment Act 1935 provided that consent did not constitute a defence where the complainant was under 15 years.

The key question in this instance is whether the definition of indecent assault provided by O’Hanlon J. in Doolan would apply to circumstances where the accused invited the child to touch him indecently without the threat or use of unlawful force on the victim. In Fairclough v. Whipp [1951] 2 All E.R. 834 the respondent exposed himself to a nine year old girl and invited the child to commit an indecent act. The court held that an invitation to someone to touch the invitor could not amount to an assault on the invitee and therefore there had been no assault, and consequently, no indecent assault on the girl by the respondent. Goddard L.C.J held at p. 834:-

“I do not know of any authority which says that where one person invites another person to touch him that can be said to be an assault. The question of consent or non-consent only arises if there is something which can be called an assault and, without consent, would be an assault. If that which was done to this child was of an indecent nature and would have been an assault if done against her will, it would also be an assault if it was done with her consent because she could not consent to an indecent assault. Before we decide whether there has been an indecent assault we must decide whether there has been an assault, and I cannot hold that an invitation to somebody to touch the invitor can amount to an assault on the invitee.”

In R. v. McCormack [1969] 2 Q.B. 442 it was held that the insertion by a man of his finger into the vagina of a girl under 16 constituted an indecent assault, “however willing and co-operative the girl may be”. The appellant had shared a bed with the child and his conviction was upheld, notwithstanding the absence of the traditional hostility requirement.

In Faulkner v. Talbot [1981] 3 All E.R. 468, in which a woman was charged with indecent assault on a 14 year old boy, it was held that the traditional definition of indecent assault under English law, which required the presence of a threat or hostile act, was no longer fundamental to a conviction. Lane L.C.J. noted at p. 471 that: -

“An assault is any intentional touching of another person without the consent of that person and without lawful excuse. It need not necessarily be hostile or rude or aggressive.”

“There is thus no assault if the defendant, without force or threats or touching with his own hands, induces a child to undress before him, or to touch him (the defendant) indecently.”

The same is true of s. 2 of the Criminal Law (Sexual Offences) Act 2006, which prohibits the “defilement of a child under 15 years of age”. It provides at s. 2(1) that “any person who engages in a sexual act with child under the age of 15 years” shall be liable on indictment to imprisonment for life or a lesser term of imprisonment, whilst s. 2(2) outlines that “attempts” to engage in such a sexual act also constitute an offence.

Further, the alleged offences with which we are concerned pre-date the coming into force of s. 246 of the Children Act 2001, which created the offence of “cruelty to children”. Section 246(1) provides that “it shall be an offence for any person who has the custody, charge or care of a child willfully to assault, ill-treat, neglect, abandon or expose the child, or cause or procure or allow the child to be assaulted, ill-treated, neglected, abandoned or exposed, in a manner likely to cause unnecessary suffering or injury to the child's health or seriously to affect his or her wellbeing”. It should also be noted that s. 246(6) states that “a child’s health or wellbeing includes a reference to the child’s physical, mental or emotional health or wellbeing”, whilst s. 246(7) provides that “ill-treatment of a child includes any frightening, bullying or threatening of the child, and “ill-treat” shall be construed accordingly”. The use of the word “includes” indicates that the examples given are non-exclusive and so, while frightening, bullying or threatening of a child are given as examples of ill-treatment, it allows for the possibility that a child can also be ill-treated in other ways not specifically instanced. This Court considers that where an adult male, for his own sexual gratification, places the hand of a female child on his genitals, that constitutes sexual abuse regardless of how seemingly willing or ostensibly untroubled the child might be, and accordingly it is ill-treatment of the child. Clearly, if it had been in force at the material time, s. 246 would arguably have covered the situation in this case, i.e., where the defendant invites or causes the victim in a non-threatening way to touch him. However, because the alleged offences in this case pre-date the coming into force of s. 246 the Court is not directly concerned with it.

It is, however, noteworthy that s. 246 of the Act of 2001 is very similar in its terms to s. 12 of the Children Act 1908, which was in operation until it was repealed by Schedule 2 of the Act of 2001. Section 12 provided an opportunity to punish “any person over the age of sixteen years, who has the custody, charge or care of any child or young person, wilfully assaults, ill-treats, neglects abandons or exposes such child or young person, or causes or procures such child or young person to be assaulted, ill-treated neglected, abandoned or exposed, in a manner likely to cause such child or young person unnecessary suffering or injury to his health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement)”.

The Court has been unable to find much consideration in case law of the notion of “ill-treatment” under s. 12 of the Act of 1908, or more recently under s. 246 of the Act of 2001. However, the decision of Attorney General v. Leneghan (Unreported, High Court, Finnegan P., 19th April, 2004) addressed the issue of correspondence in the context of s. 246 of the Act of 2001. The English authorities had sought the extradition of the respondent on foot of, inter alia, a warrant which charged that he “being a person having the responsibility for a child under sixteen years, willfully assaulted, ill-treated, neglected, abandoned or exposed that child in a manner likely to cause her unnecessary suffering or injury to health”. The applicant relied on s. 246 of the Act of 2001 as an offence corresponding to that specified in the warrant.

Finnegan P. held that there was the necessary correspondence between the offence charged in the warrant and an offence under Irish law and that the accused’s extradition was appropriately dealt with under the provisions of Part III of the Extradition Act 1965. There was sufficient similarity between s. 246 of the Act of 2001 and the statement of the offence in respect of which extradition was sought and thus there was sufficient correspondence in terms of the phrases contained in each. Accordingly, the factual basis of the offence charged set out in the English warrant, giving the words their ordinary and natural meanings, corresponded with an offence in Irish law created by s. 246 of the Act of 2001.

Having carefully considered the alleged facts underpinning the six offences numbered 3, 6, 9, 12, 15 and 17, respectively in this case, the Court is not satisfied that they correspond with the offence of indecent assault of a female contrary to common law as contended by the applicant, because it has some doubt as to whether the facts, if proven, would establish the assault component of that offence. However, I am satisfied that these facts, if proven before a court in this jurisdiction, would correspond in each instance with the offence of wilful ill-treatment of a child by a person, over the age of 16 years, who has the custody, charge or care of that child, in a manner likely to cause such child unnecessary suffering or injury to her health, contrary to s. 12 of the Act of 1908, which provision was still in force in Ireland at the relevant time.

Moreover, as each of the six offences in question carries a potential prison sentence of up to two years I am also satisfied that the minimum gravity requirements of s. 38(1)(a)(i) of the Act of 2003 are satisfied in the case of each of these offences.

Specificity of Times, Dates and Places
The respondent has also objected (point of objection no. 4) that the alleged facts underpinning each of the charges are insufficiently specific with respect to timing, date and place. This latter complaint relates to all eighteen alleged offences and is not confined to offence no. 1.

In reply, the applicant contends that lack of detail or non-specificity with respect to timing, date and place is not unusual in historic sexual offence cases. These are matters that a defendant may legitimately raise at his or her trial. However, in the context of an application for the respondent’s surrender on foot of a European arrest warrant, lack of detail or non-specificity with respect to timing, date and place is only relevant if it would prevent this Court from determining the nature of what is alleged and whether the facts as alleged would, if proven at a criminal trial in this jurisdiction, correspond to an offence under Irish law.

In support of this, the applicant cites a passage from this Court’s judgment earlier this year in Minister for Justice and Equality v. Zych [2011] IEHC 161, (Unreported, High Court, Edwards J., 15th April, 2011), where I said:-

“It is clear that neither date nor time is of the essence of the offence. The bracketing of the offence as having occurred within a 45 month time frame is akin to the preferring of a sample charge in this jurisdiction in a case of historic sexual abuse where the complainant is unable to specify any date or time with particularity. This Court is not concerned with whether, in terms of any trial that may have taken place, the preferring of such a widely framed charge was a fair procedure. The Court is not entitled to look behind the conviction. It is solely concerned with correspondence and the description of the offence as having occurred within a forty five month time bracket does not present this Court with any difficulty in understanding what is alleged. Accordingly, I would dismiss the objection raised as being of no materiality in terms of the validity of the warrant dated the 18th of September, 2008.”

Insofar as the seven indecent assault offences are concerned, i.e. no.’s 1, 2, 5, 8, 11, 14 and 16, respectively, the Court has already stated, and re-iterates, that the information provided in each instance was sufficiently detailed and specific to enable it to understand the nature and substance of what is being alleged and, accordingly, to be satisfied on the issue of correspondence. In the circumstances, the alleged lack of specificity with respect to time, date and place in the particulars relating to all or any of these offences is not relevant in the context of the present proceedings.

The same is true with respect to the six alleged offences consisting of gross indecency with or towards a child, i.e. no.’s 3, 6, 9, 12, 15 and 17, respectively. Once again, the information provided in each instance was sufficiently detailed and specific to enable the Court to understand the nature and substance of what is being alleged and, accordingly, to be satisfied on the issue of correspondence. Accordingly, the alleged lack of specificity with respect to time, date and place in the particulars relating to all or any of these offences is again not relevant in the context of the present proceedings.

The Timing of Issuing of the European Arrest Warrant
At point no. 11 of the respondent’s points of objections he complains that the European arrest warrant is defective and not in accordance with the Framework Decision because he alleges there was no pre-existing judicial decision on which it could be grounded.

This Court has no hesitation in rejecting this objection as being not well founded in the circumstances of this case. In doing so, I have had regard to the contents of the European arrest warrant itself and to the provisions of Parts 1 and 2 of the Act of 2003, and the relevant provisions of the Framework Decision to which they are intended to give effect, particularly the provisions of Articles 1, 2 and 8 thereof.

By way of a general overview, it can be stated that Article 1 of the Framework Decision defines the European arrest warrant and the obligation to execute it. Article 2 then deals with the scope of the European arrest warrant and specifies what is required to be satisfied in terms of correspondence and minimum gravity. Article 8 then specifies the content and form of the European arrest warrant.

However, when Article 1.1 is considered with greater particularity, it is to be observed that it specifies that:-

“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.”

Consistent with this, Article 8(c) of the Framework Decision, which specifies the content and form of the European arrest warrant, requires that the warrant shall contain “evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming with the scope of Articles 1 and 2”.

In the present case, the European arrest warrant does refer at Part B thereof, under the heading “Decision on which the warrant is based”, and subheading “1. Arrest warrant or judicial decision having the same effect”, respectively, to “18 warrants of arrest issued on the 26th day of January 2010 by the Presiding District Judge (Magistrate’s Courts) in Northern Ireland in respect of 5 offences of rape, 7 offences of indecent assault, and 6 offences of gross indecency with or towards a child.” Accordingly, the warrant does contain “evidence of…an arrest warrant…coming with the scope of Articles 1 and 2”.

The respondent’s complaint, such as it is, appears to be based (a) upon the fact that the respondent had not yet been formally charged when the European arrest warrant was applied for, and (b) also upon the fact that the eighteen underlying domestic arrest warrants were issued on the same day, and indeed in the course of the same hearing in which the European arrest warrant was issued.

Insofar as the first point is concerned, it is legitimate to issue and employ a European arrest warrant “for the purposes of conducting a criminal prosecution”. The preferral of charges is part of the process of criminal prosecution. Accordingly, it is not necessary that formal charges should have been laid before a European arrest warrant is applied for. It is sufficient if a decision to lay charges has been made by the prosecuting authorities. Conversely, it would not be sufficient if the criminal investigative process, i.e. the gathering of information to be taken into account in considering whether or not to prosecute the requested person was ongoing. That was not the case here. The evidence before this Court, as set out in the European arrest warrant and in the additional information supplied subsequently, establishes that at the time the European arrest warrant was applied for the criminal investigative process was complete and that a decision had been taken by the prosecuting authorities in the issuing state to prefer eighteen specific charges against the respondent. The fact that these charges had not actually been laid when the European arrest warrant was applied for is of no consequence.

As regards the second point, there is no requirement in either the Framework Decision or the Act of 2003 that a significant, or indeed any, period of time should elapse between the issuing of a domestic arrest warrant or warrants and the issuing of a European arrest warrant in a case such as the present. Indeed, in circumstances where the subject person is known to be out of the jurisdiction of the issuing state and is unlikely to return voluntarily to face prosecution, it is entirely reasonable and foreseeable that both types of warrant would be applied for on the same occasion and that a European arrest warrant could issue shortly (perhaps just seconds) after the issuing of the domestic warrant or warrants on which it is to be based. The important thing is that the European arrest warrant should have been sought for, and only for, one or more of the specified Article 1.1 objectives; and that the purpose for which it was sought should be apparent from the face of the document, for the benefit of the executing judicial authority. The Court is satisfied that the European arrest warrant in the present case fulfils those requirements.

Section 37 Objections

Trial issues - generally
In the course of making oral submissions to the Court, leading counsel for the respondent, Mr O’Higgins S.C., helpfully and appropriately grouped a number of s. 37 type objections pleaded in the points of objection under the heading “Trial Issues” (by which he meant issues with the potential to adversely affect a trial of the respondent in Northern Ireland in the event that he is surrendered). These included the issues of delay, pre-trial publicity and changes in the law of Northern Ireland relating to jury selection. The Court will deal with each of these issues separately later in this judgment, but before doing so it is appropriate to record and consider certain submissions made by counsel for the respondent concerning recent jurisprudence in this area and what he says are the legal principles governing the jurisdiction of this Court to adjudicate on these “trial issues”.

Counsel for the respondent referred the Court in the first instance to the decision of the Supreme Court in Minister for Justice, Equality & Law Reform v. Brennan [2007] 3. I.R. 732. He anticipated, correctly, that the applicant would seek to rely upon, and that this Court would wish to be addressed concerning, paras. 39 and 40 respectively of the judgment of Murray C.J. (Macken and Finnegan JJ. concurring) where he said:-

“[39] The manner, procedure and mechanisms according to which fundamental rights are protected in different countries will vary according to national laws and constitutional traditions. The checks and balances in national systems may vary even though they may have the same objective, such as ensuring a fair trial. There may be few, if any, legal systems which wholly comply with the precise exigencies of our Constitution with regard to these matters. Not all for example will provide a right to trial by jury in exactly the same circumstances as our Constitution does in respect of a trial for a non-minor offence. Rules of evidence may differ. The fact that a person would be tried before a judge and jury in this country for a particular offence could not in my view, be a basis for refusing to make an order for surrender solely on the grounds that in the requesting state he or she would not be tried before a jury. The exceptions which we have to the jury requirement, as in trials before the Special Criminal Court, acknowledges that a fair trial can take place without a jury even though it is constitutionally guaranteed for most trials in this country.

[40] That is not by any means to say that a court, in considering an application for surrender, has no jurisdiction to consider the circumstances where it is established that surrender would lead to a denial of fundamental or human rights. There may well be egregious circumstances, such as a clearly established and fundamental defect in the system of justice of a requesting state, where a refusal of an application for surrender may be necessary to protect such rights. It would not be appropriate in this case to examine further possible or hypothetical situations where this might arise. The sole matter which I wish to make clear here is that the mere fact that a trial or sentence may take place in a requesting state according to procedures or principles which differ from those which apply, even if constitutionally guaranteed, in relation to a criminal trial in this country does not of itself mean that an application for surrender should be refused pursuant to s. 37(2) of the Act.”

The Court was then referred to the Supreme Court’s judgment in Minister for Justice, Equality & Law Reform v Stapleton [2008] 1 IR 669 (Fennelly J., with Murray C.J., Denham, Geoghegan and Kearns JJ. concurring).

In the Stapleton case the respondent’s surrender was resisted on the grounds of delay. Mr Stapleton had succeeded in the High Court essentially on two grounds. First, the learned High Court judge was not persuaded, despite evidence adduced by the applicant suggesting the contrary, that an application by the respondent to the courts of the issuing state to have his trial stayed on the grounds of lapse of time would enjoy the same prospects of success as a similar application made before the courts of this jurisdiction. (In that regard the learned judge had, following a review of certain English jurisprudence to which he had been referred, formed the view that the courts of the issuing state do not have the same regard as do the courts of this jurisdiction for what he described as a free standing right to an expeditious trial, even in the absence of actual prejudice.) Secondly, he held that the respondent’s right to an expeditious trial was one that he was “entitled to invoke and have protected on the first occasion on which it becomes relevant for argument, and that it is not a matter to be postponed so that it can be ventilated at some date in the future in another country, and after the respondent has been returned in custody to that place” - see Minister for Justice, Equality & Law Reform v. Stapleton [2006] 3 IR 26 at pp. 49 and 50).

The applicant appealed successfully to the Supreme Court which held that the learned High Court judge was mistaken in seeking parity of criminal procedure in the issuing member state. In regard to that, Fennelly J. said at pp. 690-692):-

“[73] The trial judge was mistaken in seeking parity of criminal procedure in the issuing member state. It is apparent that, even under the long established extradition jurisprudence, as it applied between some member states prior to 2004 and, as it still applies between this country and third countries, such a comparison was not required. Extradition does not demand that there be parity of criminal procedures between contracting states. It is notorious that criminal procedures vary enormously between states. Indeed, it is obvious that they approximate much more closely between this country and the United Kingdom than between either of those states and the great majority of member states practising the civil law system, where, for example, there is no tradition of cross-examination of the sort practised in our courts, and which is here regarded as totally fundamental to the rights of the defence.

[74] Since the hearing of this appeal, this court has given judgment in the case of Minister for Justice v. Brennan [2007] IESC 21, [2007] 3 IR 732 where Murray C.J. considered the correct approach to the balancing of constitutional rights against the obligations of the state pursuant to the framework decision…

[75] I cannot see that any of the differences discerned by the trial judge between the right to seek prohibition of trial in the English courts and our own could amount to the establishment of infringement of the right to fair trial, or fair procedures, whether by reference to the Convention or to the Constitution. They certainly do not amount, to repeat the words of Murray C.J., to ‘a clearly established and fundamental defect in the system of justice of [the] requesting State’.”

The Supreme Court also held that the learned High Court judge was mistaken in holding that the respondent was entitled to have his right to a speedy trial protected on the first occasion on which it becomes relevant for argument. It further stated that:-

“…on the facts of the case, it is demonstrably more efficient and more convenient that those matters be debated before the courts of the country where the respondent is to be tried. The prosecuting and police authorities as well as other witnesses are available to and amenable to the jurisdiction of the courts of that country. Documentary evidence, of the type demanded by the respondent, will be more readily available there. If not, its absence may be more readily explained. There may, in addition, be arguments or points of domestic law, whether based on precedents or otherwise, which the respondent can advantageously argue or rely upon which may not be available to him in this jurisdiction and of which an Irish court might not necessarily be aware. I would echo and adapt the words of Simon Brown L.J. in Woodcock v. Government of New Zealand [2003] EWHC 2668 (Admin), [2004] 1 WLR 1979 and say that the English courts ‘will have an altogether clearer picture than we have of precisely what evidence is available and the issues likely to arise.’”

Counsel for the respondent suggests that the Supreme Court’s views as expressed in Stapleton have been subject to a very important refinement and qualification in the case of Minister for Justice, Equality & Law Reform v. Hall [2009] IESC 40, (Unreported, Supreme Court, 7th May, 2009). The Hall case applied Stapleton. In that case the delay had been in executing the warrant itself. There had been no explanation for the delay and the Supreme Court accepted there had been a delay. Giving judgment on behalf of the Court, Denham J., Kearns and Macken JJ. concurring) repeated the requirement that the Irish courts must proceed on the basis that the courts of the requesting state would respect fundamental rights and freedoms and that issues such as delay and the right to a fair trial are more appropriately raised before the courts of the requesting state, if there is a remedy available in that state. The learned judge continued at p. 7 of the unreported judgment:-

“19…

The Court is required to have regard to and to balance the constitutional rights of a requested person with the obligations under the European Arrest Warrant scheme of the Framework Decision.

20. The High Court held:-


‘It is quite clear by now that an objection based on delay is not one which this Court can regard as a ground which prohibits surrender to the issuing state, and that any fears that the respondent has that he cannot now obtain a fair trial are matters to be ventilated in the courts of the issuing state, and not here. This follows clearly from the judgment of Fennelly J. in Minister for Justice, Equality and Law Reform v. Stapleton [2008] 1 IR 669. It would be inappropriate for this Court therefore to examine and express any view on whether the matters referred to by the respondent could amount to a sufficient prejudice to prohibit his trial, since if at all these will be the subject of a determination before a court in the issuing jurisdiction.’

21. There may be situations where a court in this requested State would consider the issue of a delay, it would depend on the circumstances. However, in general, issues such as prosecutorial delay and its consequences, are more appropriately litigated in the requesting state, which is the state of trial. This presumption is based on the existence of remedies, such as access to judicial review or a process to review an allegation of abuse of process. It is grounded on the foundation of mutual trust of the European Arrest Warrant scheme. It all depends on the circumstances of the case.”

Counsel also referred to this Court’s judgment in Minister for Justice, Equality & Law Reform v. Adam (No. 1) [2011] IEHC 68, (Unreported, High Court, Edwards J., 3rd March, 2011), where I stated:-

“The Supreme Court has said in Minister for Justice, Equality and Law Reform v Hall [2009] IESC 40 that “issues such as delay and the right to a fair trial are more appropriately raised in the requesting state, if there is a remedy available in that state.” There is “a presumption” “based on the existence of remedies” that issues such as prosecutorial delay and its consequences, are more appropriately litigated in the requesting state, which is the state of trial. The respondent must look in the first instance to the courts of the Czech Republic for his remedy, assuming there is an effective remedy available to him in that state. However, it is also implicit in Denham J’s judgment, that in the event of no effective remedy being available in the requesting state to a person in the position of the respondent him then it might, depending on the circumstances, be appropriate for the Irish courts to seek to provide him with an effective remedy.”

Counsel for the respondent then posed the question: in what circumstances would an Irish court look at issues which purport to establish breaches of fair trial rights under the Constitution and/or under the Convention where a remedy is available in the issuing state?

Before indicating counsel’s suggested answer to this question, it should be recorded that he was prepared to concede on behalf of his client that a remedy is available before the courts of Northern Ireland by means of which his complaints with respect to delay, and also with respect to pre-trial publicity, might be ventilated. However, he contended that his client has no remedy with respect to his complaint concerning changes in the law of Northern Ireland relating to jury selection.

According to counsel for the respondent, the answer to the question posed is that “it depends on the circumstances of the case”. Generally speaking, the Irish courts won’t do so. Usually an Irish court would not be in as good a position to assess the argument as the local court. Before an Irish court could carry out such an assessment it would need, counsel submitted, to be satisfied that it would not be unduly hampered by the fact that it is not the trial court. The complaint being made, i.e., the breach of rights alleged, would have to be self-evident, and not relate to matters that are peculiarly local. The respondent’s contention is that the complaints that he raises relating to delay, pre-trial publicity and procedural changes are all in this category.

In response to the above, leading counsel for the applicant, Ms. Aileen Donnelly S.C., submitted that there is nothing so unusual or remarkable about the circumstances of the respondent’s case as to take it outside of the application of the principles laid down by the Supreme Court in the Brennan and Stapleton cases, respectively. Ms. Donnelly submitted that there can be no doubt as to the authority of the Chief Justice’s remarks in paras. 39 and 40 of the Brennan judgment, having regard to the copious subsequent references to it by the Supreme Court in cases such as Stapleton; Minister for Justice, Equality & Law Reform v. Gardener [2007] IESC 40, (Unreported, Supreme Court, 30th July, 2007); Minister for Justice, Equality & Law Reform v. S.M.R. [2008] 2 IR 242; and Hall. Insofar as the respondent relies on Hall, and in particular Denham J.’s statement that “it all depends on the circumstances of the case”, counsel for the applicant has contended that that statement is totally reconcilable with, and does not represent an extension of, the views of the Supreme Court as expressed by Murray C.J. in para. 40 of his judgment in Brennan. In saying that “it all depends on the circumstances of the case”, Denham J. was not promoting a lower threshold for judicial intervention by a court here than that suggested by Murray C.J. in Brennan. Rather, Denham J.’s reference to “the circumstances of the case” is to be understood in the light of the former Chief Justice’s remarks as meaning that, before an Irish court will consider intervening by refusing surrender on account of “trial issues” (to use counsel for the respondent’s phrase), “egregious circumstances” require to be demonstrated “such as a clearly established and fundamental defect in the system of justice of a requesting state”, and only where that type of intervention “may be necessary to protect such rights” (i.e. the respondent’s constitutional and fundamental rights, including, but obviously not confined to, his fair trial rights). Clearly, intervention to protect a respondent’s rights should not be necessary in any case where that respondent can pursue an effective remedy in regard to his complaints before the courts of the issuing state.

This Court has considered the parties respective submissions on the question of its jurisdiction to intervene by refusing surrender on account of “trial issues”. In the Court’s, view the law is as contended by counsel for the applicant. The Supreme Court has stated that what is required to be demonstrated are, in the words of the former Chief Justice, “egregious circumstances, such as a clearly established and fundamental defect in the system of justice of a requesting state, where a refusal of surrender may be necessary to protect such rights”. I do not believe that in her judgment in Hall Denham J. was seeking to promote a lower threshold for judicial intervention than that suggested by the former Chief Justice.

It is therefore clear that this Court, in considering an application for surrender, does have jurisdiction to refuse to surrender a respondent on account of “trial issues” if to do so would contravene a provision of the Constitution or breach the respondent’s fundamental rights. However, whether a court will be disposed to exercise its undoubted jurisdiction in that regard will “depend on the circumstances of the case”. The judgments in Brennan, Stapleton, Hall and the other cases cited to this Court make it clear that although the jurisdiction exists it should be exercised rarely and only exceptionally. Accordingly, intervention can only be legitimately contemplated where the circumstances in question are “egregious” (and the former Chief Justice has given an example of what might constitute such circumstances) and it is also considered that intervention may be necessary to protect a respondent’s fundamental rights. Issues of this sort require to be approached in this cautious way because the European arrest warrant system is built upon a foundation of mutual trust and confidence. It is to be presumed that a requesting state, including its courts, will respect a respondent’s fundamental rights and that a requesting state can and will provide an effective remedy or means by which “trial issues”, if they arise, can be addressed locally. That presumption, like all presumptions, is capable of being rebutted, but its effective rebuttal would require very clear and unequivocal evidence to the contrary.

Moreover, insofar as Hall, Adam (No. 1) and other cases may have been concerned with the existence, or adequacy, of a possible remedy before the courts of the requesting state, it is entirely logical that the reluctance of the Irish courts to intervene should be predicated on the presumed availability of such a remedy. It is hard to see how, if an effective remedy is available to a respondent before the courts of the requesting state, the “trial issues” of which he complains, whatever they might be, could amount to egregious circumstances; or indeed how, where an effective remedy is available locally, a refusal of surrender might be necessary to protect the respondent’s rights on account of those issues. It seems to this Court that, as a matter of logic, intervention to protect a respondent’s rights should not be necessary in any case where that respondent can pursue an effective remedy before the courts of the issuing state. Of course, to make that last statement is to shine a spotlight of what will be the central battle ground in many cases, and it is one of the battle grounds in this case, viz the existence, or alternatively, the effectiveness of a local remedy.

It is contended on behalf of the respondent that no local remedy at all is available to him in respect of that component of his case, which is based upon changes in the law of Northern Ireland relating to the selection of jurors. Moreover, while it was accepted that the respondent’s complaints in relation to delay and pre-trial publicity are capable of being ventilated before the courts in Northern Ireland, counsel for the respondent was careful not to go further and indicate an acceptance that these remedies would be effective and satisfactory for his client. Of course, effectiveness is not automatically to be equated with, or measured in terms of, achieving a successful outcome. In the present case, it is claimed that availing of local remedies in relation to the complaints based upon delays and pre-trial publicity will inevitably give rise to further delays and that, moreover, while such remedies are being pursued the respondent is very likely to be subjected to a highly restrictive custody regime which will be oppressive of him. Moreover, it is also contended that neither he nor this Court can have any confidence that remedies available to him will be effective because the attempt to prosecute the respondent at this time is politically motivated and the European arrest warrant system is being abused. These particular contentions, amongst others, were characterised as, and were dealt with by counsel for the respondent in the course of his oral submissions as, “legal issues”. Be that as it may, it is clear to the Court that as one aspect of his case the respondent is, in effect, contending that although local remedies in relation to his complaints concerning delay and pre-trial publicity are theoretically available to him in Northern Ireland in the event that he is surrendered, these should not be regarded as being effective remedies in the circumstances of his case (because he cannot reasonably be expected to have recourse to them where to do so would prolong an intolerable delay to which he has already been subjected; where he faces the likely prospect of being held in oppressive pre-trial custody, and where his prosecution is politically motivated), and that in those circumstances this Court should engage with the merits of all of the complaints that he has raised in relation to trial issues.

In this Court’s view the law is clear, as is this Court’s duty. It should not engage with the merits of the complaints made by the respondent in relation to trial issues where he acknowledges that there are remedies available to him in respect of those issues before the courts of Northern Ireland, unless it is satisfied that such local remedies cannot be effective remedies in the particular circumstances of his case. If the court is of the view that the respondent lacks an effective remedy in regard to all or any of his complaints, it must consider whether the matters complained of, coupled with the absence of an effective means of addressing them, expose him to such a serious risk of an unfair trial as to be properly characterised as egregious circumstances. If at that point the court does not consider the circumstances to be egregious then that is the end of the matter. However, if this Court determines that egregious circumstances do exist, it should then consider whether its intervention is necessary to protect the respondent’s rights. The Court will address these various issues later in this judgment.

Delays
It is important at this stage to outline the specifics of the complaints being made about delays. The basic chronology of events can be gleaned from a perusal of the European arrest warrant itself, and the respondent’s various affidavits.

The complainant made her initial complaint on the 21st January, 1987, in the presence of her mother. She made a written statement on the date in question and was also medically examined on the same date. The complainant was aged 13 years. The offences were alleged to have taken place when she was aged between five and eight i.e., between the years 1980 and 1984. The alleged perpetrator is her father. The complainant returned to the police on the 11th February, 1987, again accompanied by her mother. The mother expressed doubt that her daughter could proceed with the case and indicated that she would not be willing to attend court. However, she was equally clear that she wanted the case to proceed and her former partner (the respondent) to be interviewed. The mother was unwilling to give a statement. The RUC (since reconstituted as the PSNI) claimed they did not know the whereabouts of the respondent and were not in a position to interview him. A file was submitted to the prosecuting authorities two months later on the 14th April, 1987. There is then a gap of 12 years until a direction of no prosecution issued on the 7th May, 1999. In late 2006 the complainant returned to the police and indicated that she wanted to proceed with her complaint. A series of video recorded interviews took place. In the course of these interviews (on the 6th December, 2006, and the 12th March, 2007) and a further written statement made on the 25th October, 2007, the complainant described the various alleged offences. She was able to describe some incidents more specifically than others. She felt that it was now “safer” to proceed. She stated that she was ready to go to court and confront her father.

A sister of the complainant also made a statement to the PSNI in December 2006 in which she alleged that the respondent admitted to her around Christmas of 2002 that he had sexually abused the complainant.

On the 15th February, 2007, the respondent was arrested and interviewed. He denied all allegations. On the 21st March, 2008, the Public Prosecution Service in Northern Ireland wrote to the respondent's solicitors indicating that it was required to serve certain papers on the respondent personally and enquired whether the said solicitor could facilitate such service. It suggested that if he could not do so “further action will be taken as necessary”.

On the 18th December, 2009, Ulster television (UTV) broadcast an “Insight” program repeating the allegations made by the complainant and bringing the matter into the public and political domain. What is fairly characterised by the respondent as a “media frenzy” then followed lasting for at least a number of weeks. Finally, on the 26th January, 2010, eighteen warrants alleging five offences of rape, seven offences of indecent assault and six offences of gross indecency with or towards a child, and the European arrest warrant in this case, were issued by the presiding judge of the Magistrates Court in Belfast, Northern Ireland.

In his affidavit sworn on the 5th July, 2010, the respondent deposes (inter alia) at paras. 4, 5 and 10 that:-

“4. …I have been prejudiced by the delay in the following ways-

(i) By delaying in bringing charges the laws of contempt of court have not been available to protect the integrity of the trial process and the concomitant right to a fair trial by an impartial adjudicator(s). In consequence thereof your deponent has been widely condemned as a guilty man throughout all forms of the media by persons of repute and holding public positions of authority. I consequently face a real risk of an unfair trial.

(ii) The unfairness is compounded by the fact that your deponent faces a jury trial and there have been substantive changes to the law in the issuing State regarding jury selection. I say and believe and am so informed that the defence used have the right to 12 peremptory challenges and unlimited challenges for cause. All peremptory challenges have been abolished and such scant information is supplied to the defence concerning the jurors that challenges for cause shown are theoretical. This unfairness is acute given the polarisation of the community in Northern Ireland and where your deponent is a person of known political affiliation, who by reason of the charges and my familial connections is likely to be subject to prejudice from both within and outside of party political lines.

(iii) The delay also operates to your deponent’s disadvantage in that I no longer have the right to appeal the decision of the High Court in the absence of certification, a situation which would not have obtained had the issuing State acted with any degree of reasonable expedition. This difficulty is particularly acute where I am seeking to challenge the approach taken by the Court in Minister for Justice v. Stapleton.

(iv) My life has moved on considerably since 1999 when a decision was taken not to prosecute. There must come a time when a person is entitled to expect that a matter has been finally concluded.


5. The Authorities in Northern Ireland have displayed remarkable and unexplained dilatoriness in dealing with the matter. It seems that it was only when the matter became politically sensitive that moves were made to progress the matter. While I had been interviewed by the police on the 15th February, 2007, neither I nor my solicitor had heard anything further in relation to the matter until my solicitor received a letter dated the 21stMarch, 2008. I beg to refer to a copy of the said letter upon which marked with the Letters “LA2” I have signed my name prior to the swearing hereof. Notwithstanding the declaration by the Public Prosecution Service that “further action will be taken as necessary” no attempts seem to have been made to progress the matter. This is in circumstances where they must have been well aware of my whereabouts and could have put in train whatever mechanism was required to charge your deponent.

12. I say and believe that the European Arrest warrant procedure and the Framework Decision did not contemplate the surrender of a person in 2010 for offences which are alleged to have occurred prior to 1983, in circumstances where a file was submitted to the Director of Public Prosecutions on the 14th April, 1987, and thereafter there followed a delay of 12 years before a direction of no prosecution issued on the 7th May, 1999. I say and believe that the surrender of your deponent would offend the principle of proportionality. This is particularly so when the charges are of such antiquity, vague in location and time, where a decision was previously taken not to prosecute in 1999, where there have been significant changes disadvantageous to the Respondent, in relation to both the trial procedure (anonymity of accused/ challenges to jurors) and the extradition procedure (absence of a right of appeal without certification) and where the delay in laying charges has permitted a situation to develop where your deponent who had moved on with his life has now been widely condemned and viewed as a guilty man.”

“3. I can confirm that Mr. Adams was arrested and interviewed by police at Grosvenor Road Police Station, Belfast on February 15th 2007. I was Mr. Adams Solicitor at this interview. Prior to this interview police had called to the home of Mr. Adams and left a card asking him to contact them. Mr. Adams attended my office, I telephoned the police and made arrangements for Mr. Adams to attend voluntarily at Grosvenor Road Police Station on February 15th 2007 where he was arrested, interviewed and then released pending report to the Public Prosecution Service.

4. The only activity that I am aware of by either the police or the Public Prosecution Service between this date and namely the date December 16th 2009 is a letter received from the Public Prosecution Service dated March 21st 2008…(He exhibits this letter)…Although I have no attendance note I informed the Public Prosecution Service at that time that I had not spoken to Mr. Adams since his release from custody and that they should contact him directly. I am not aware of any effort by the police to serve these papers on Mr. Adams until I was informed by Mr. Adams’ daughter that police had called to her home on December 16th 2009. This activity by police took place on December 16th 2009 2 days before the UTV Insight program was aired on UTV on December 18th 2009. I have grave suspicions that Police only went looking for Mr. Adams on December 16th 2009 because of this UTV Insight program.

5. Because of these concerns that the attempt to arrest Mr. Adams on December 16th 2009 was triggered solely by the forthcoming UTV Insight program two days later, I wrote to the Public Prosecution Service querying the legitimacy of the Warrant Issued by District Judge Bagnall on January 26th 2010. Despite the response from the Crown Solicitors Office I still have concerns that District Judge Bagnall may have been lead to believe that Police had been actively looking for Mr. Adams for some time, had made numerous efforts to locate him and serve the papers on him and indeed that he was evading service of those papers. I refer to copy of letter which I forwarded to the Public Prosecution Service on April 23rd 2010…(He exhibits this letter.)… The concerns about the issue of the warrant are covered in paragraph 3 of this Affidavit where I have indicated that Mr. Adams was released from police custody following his arrest, pending report to the Public Prosecution Service and other than one letter to myself I am not aware of any effort by police to serve papers on Mr. Adams for him to attend Court on foot of a Summons. Indeed as I pointed out earlier in this affidavit I am only aware of one attempt by police in Belfast to make contact with Mr. Adams and this on the face of it appears to be because of’ the UTV Insight program due for airing several days later. I again received a response from the Crown Solicitors Office on this occasion dated May 11th 2010…(Again, Mr. Breen also exhibits this letter) ….

7. Due to the huge media interest and the publicity in this case it has been disclosed to the public that my client Liam Adams is the brother of Gerry Adams MP and President of Sinn Fein. It has also been disclosed that my client was a member of Sinn Fein…The defence have been informed that a file was considered by the DPP and based on the facts and information then available a direction of no prosecution issued on May 7th 1999. This decision was apparently based on a file submitted in 1987. We are further informed that in 2007 Aine Tyrell informed the police that she now wished to proceed with her complaint. If the matter had proceeded at an earlier date the defendant would not have been faced with the intense media publicity which he has had to suffer. Also, if the Trial had taken place in and around that time Mr. Adams and his solicitors would have had some information in relation to the background of any Jury Panel as well as having the right to peremptory challenge 12 jurors. However The Justice and Security Act (NI) 2007 insert a number of new provisions into the Juries (NI) Order 1996. Consequential amendments made by Schedule 2 of the 2007 Act remove the right to inspect the Jurors List whilst Section 13 of the said Act amends the 1996 Order by removing the defence’s right of peremptory challenge the 12 Jurors. Therefore because of the Change in the Law under Justice and Security Act (Northern Ireland) 2007 Mr. Adams will know absolutely nothing about the Panel picked to hear his Trial. We will not know their name, religion, or social status all of which could be previously gleaned from information provided to Defence Solicitors before the Change.”

The Court has read, viewed and listened to all of this material. It is legitimate for the respondent to complain about it and unquestionably the nature of the material is such as to raise a concern that the members of any jury that might be empanelled to try the respondent in Northern Ireland who have been exposed to some or all of this material might be influenced by it. However, in stating that, the Court is not to be taken at this stage as having expressed any view about whether such concerns are capable of being adequately addressed or as to whether or not the respondent can in fact receive a fair trial by jury in the event that he is surrendered. The Court is not presently concerned with those issues.

Continuing for the moment with the Court’s review of the evidence on which the complaint is based, the respondent himself deposes to the following matters in relation to this aspect of the case in his affidavit of the 5th July, 2010:-

“5. ….On or about the 18th December, 2009, UTV broadcast an “Insight” program which repeated the allegations made by the complainant herein bringing the matter into the public and political domain. During that program a statement was broadcast by Gerry Adams, the President of Sinn Féin (and my sibling) stating that “I believe Áine”. I was referred to by Chris Moore, the program presenter as “on the run paedophile”. Gerry Adams is a person of significant influence in the issuing State (and additionally my brother) and his unequivocal pronouncements of my guilt resonate with the public.

6. Arising out the broadcast of the program there was a frenzy of media and political scrutiny of the matter. I say that a number of persons in authority seem to have presumed my guilt in relation to these offences in circumstances where no trial has taken place and where the evidence has yet to be tested. The widespread and extraordinary coverage of both the intended prosecution and the extradition proceedings themselves have featured remarks which assume guilt on my part. These remarks have been made by persons in public office held in high regard in the community in the issuing State. I say that it is no longer possible for me to receive a fair trial as the presumption of innocence has been comprehensively dislodged by the sustained and widespread nature of these remarks which have been broadcast on the media, the television and the radio. The loss of the presumption of innocence is grave in circumstances where trial by jury in the issuing state allows for no questions to be asked of potential jurors in advance of selection and where only three jurors may be challenged without cause. I say that I have attempted myself to accumulate an amount of the media material and I beg to refer to a copies of same which I have pinned together and upon which I have marked with the letter “LA3” I have signed my name prior to the swearing hereof.

7. I begin particular to refer to the coverage in The Irish News which is a paper which is widely published in Northern Ireland. Some of the articles exhibited above include the following excerpts:


(i) The Irish News, 18th December, 2009 - “In a statement last night Gerry Adams said he believed the allegations, which he has been aware of for some time and said the victim “must get justice”.

(ii) The Irish News, 19th December, 2009 - “In a statement last night Gerry Adams urged his brother to come forward. “The only way this can be sorted out now is through the courts”, He said. “He should right the wrong that was done to her. Áine must have justice”.

(iii) The Irish News, 21st December, 2009 - “I don’t want to name anybody who was abused but in the course of dealing with the issue of Áine and the injustice done to her, a family member told me that they had been abused” Mr. Adams said.

(iv) The Irish News, 9th January, 2010 — “DUP Environment Minister Edwin Poots has compared allegations made against First Minister Peter Robinson concerning his wife, to sexual abuse claims against the brother of Sinn Féin Leader Gerry Adams...” I think when you compare what Peter Robinson is accused to have done in not saying that money was received and paid back, to covering up incidents of paedophilia and not reporting those to the police and shifting that person around - I think that whenever you compare those two particular things and when the public take a look at those two particular things, and we have the investigation into those politicians who engaged in that activity, to the extent that we’re having this investigation, then people will believe there’s fair play.”


8. I say that your deponent should not be surrendered to the issuing State to be subjected to a trial in circumstances where such trial cannot occur otherwise than in breach of Article 6 of the Convention and in breach of my constitutional rights and specifically in circumstances where I do not enjoy the presumption of innocence. The issuing State has failed to ensure that your deponent will obtain a fair trial by causing, allowing or permitting untrue assertions of my guilt to be disseminated throughout the media, by inter alia, a member of the legislative assembly and member of Parliament and President of a leading political party. I am being regarded as a guilty person in the issuing State. The issuing State has failed to take any steps to prevent this occurrence and has failed to ensure that persons in the position of your deponent retain their anonymity and/ or are not the subject of widespread condemnation in advance of trial.

9. It is apparent that the European Arrest warrant was issued in respect of your deponent for the purposes of facilitating my prosecution and/ or punishment in the issuing state for reasons connected with my political opinion and/ or I will be treated less favourably than a person who does not hold the same political opinions as me. I am and have been uniquely disadvantaged by virtue of my association with Sinn Féin and leading politicians therein which has resulted in both widespread and damning media reporting of the matter. The prosecution of your deponent at this time can properly be regarded as being politically motivated. By reason of my association with Sinn Féin I am being treated differently than other persons accused of criminal offences both by Sinn Féin itself and also by those in opposing parties seeking to take advantage of and generate political capital from my familial and political association with Sinn Féin.

10. The media reports exhibited above outline in part the damaging nature of the publicity and the political dimension to the prosecution and extradition request. A Stormont assembly committee that upholds standards of elected representatives was asked to investigate Gerry Adam’s handling of sex abuse allegations (see Irish News (15th January, 2010). It was reported in the Irish News (25th January, 2010) that Gerry Adams again accused the Sunday Tribune of a “deliberate smear campaign against Sinn Féin and me”. This evidences the fact that there is a sharp political dimension to the prosecution and extradition requests. Gerry Adams was reported to dismiss calls for him to resign from politics (Irish News, 26th January 2010) and referred to “the media hunt for [his] scalp”. In response to criticisms that Gerry Adams did not remove your deponent from canvassing in Louth, a spokesman for Gerry Adams stated that “the sources of the claims in Dundalk against Gerry Adams were dissidents motivated by antagonism against the Sinn Féin leader (The Argus, 30th December, 2009). It was reported in ‘Iris an Phobail’ on the 26th December, 2009, that “West Belfast MP Gerry Adams has described as inexplicable the PSNI’s failure to have a European Arrest Warrant prepared for his brother Liam, who is facing allegation of child sex abuse. Mr. Adams yesterday revealed that he has spoken to senior PSNI officers about the case, including former Chief Constable Hugh Orde and current Chief Constable Matt Baggott”.

11. Gerry Adams was reported as stating in ‘Léargas by Gerry Adams’ in Iris an Phobail on the 16th January, 2010, that “I want to make it clear that republicans in Dundalk and senior party colleagues were not aware of the allegations against Liam Adams. The simple fact is, in my opinion he should not have been a member of Sinn Féin.” He further stated:- “As of now, despite the public attention, the case against Liam Adams has not proceeded”. On the 18th January, 2010, Gerry Adams responded to the call by a DUP Assembly Member to investigate whether he had breached Assembly rule stating “Sinn Féin did not know of the allegations against Liam Adams and did nothing wrong...There was no cover up by Sinn Féin. In the Sunday World (20th December, 200), Gerry Adams was reported as saying:- “This young woman has now decided to drop her anonymity and go public, its taken all of this time because the perpetrator, in this case my brother, has thus far failed to fulfill his responsibilities towards his daughter.”

12. I say and believe that the European Arrest warrant procedure and the Framework Decision did not contemplate the surrender of a person in 2010 for offences which are alleged to have occurred prior to 1983, in circumstances where a file was submitted to the Director of Public Prosecutions on the 14th April, 1987, and thereafter there followed a delay of 12 years before a direction of no prosecution issued on the 7th May, 1999. I say and believe that the surrender of your deponent would offend the principle of proportionality. This is particularly so when the charges are of such antiquity, vague in location and time, where a decision was previously taken not to prosecute in 1999, where there have been significant changes disadvantageous to the Respondent, in relation to both the trial procedure (anonymity of accused/ challenges to jurors) and the extradition procedure (absence of a right of appeal without certification) and where the delay in laying charges has permitted a situation to develop where your deponent who had moved on with his life has now been widely condemned and viewed as a guilty man.

13. I say and believe that there are reasonable grounds for believing that your deponent will be subject to inhuman and/ or degrading treatment if returned to the issuing State. If I am surrendered to Northern Ireland and remanded in custody either pre or post trial I say and believe that I will inevitably be in 24 hour lock up. This is because I am regarded as a guilty child abuser who has been denounced by and regarded as an embarrassment to Sinn Féin and its leadership. I am gravely concerned that this will have a severe and deleterious effect on my physical and mental health and well-being.”

6. Following the UTV Insight program which was aired on Ulster Television on December 8th 2009 there was an unprecedented level of media interest in the allegations made by Aine Tyrell against Mr. Adams. On December 23rd 2009 in response to this I wrote to the Public Prosecution Service. The letter is self explanatory…(He exhibits this letter)…I received neither an acknowledgement nor response to this letter, however in January 15th 2010 Mr. Gerry Adams Solicitor telephoned me informing me that his client had received a letter from the police and he gave me no indication to what his client’s response to this letter was to be other than that he would be writing back to the police in response to that letter. 1 wrote again to the Public Prosecution Service on April 11th 2010…(He also exhibits this letter)…By letter April 11th 2010 1 eventually received a response…(He also exhibits this letter, which contains a representation that instructions had been given by the Public Prosecution Service to the PSNI that they should advise potential witnesses to refrain from speaking to or contacting the media, and a further representation that the PSNI confirming that the PSNI had written to Aine Tyrrell, Gerry Adams and to other witnesses to that end).

“8. It is my understanding that solicitors acting on behalf of Mr. Adams in Dublin will provide the Court with material outlining the un-precedent level of media publicity surrounding this case. There is however one article which I wish to refer to within this Affidavit and it is my understanding that Mr. Adams may have referred to this in his bail application when the warrant was executed in Dublin. This is an article which was published in the Sunday World Newspaper in Belfast on the 22nd day of May 2007. I have exhibited this article to this Affidavit…In the week leading up to this publication I was approached by Mr. Gerry Adams solicitor informing me that police had warned his client that the Sunday World were going to run the story concerning his brother. This was the only notification either Mr. Liam Adams or myself received. There was no contact by the police or the Prosecution Service to ourselves. Mr. Adams solicitor seemed to be enquiring from me as to whether I knew any more. The paper ran a story but as can be seen did not at this stage identify my client.”

“13. I say and believe that there are reasonable grounds for believing that your deponent will be subject to inhuman and/ or degrading treatment if returned to the issuing State. If I am surrendered to Northern Ireland and remanded in custody either pre or post trial I say and believe that I will inevitably be in 24 hour lock up. This is because I am regarded as a guilty child abuser who has been denounced by and regarded as an embarrassment to Sinn Féin and its leadership. I am gravely concerned that this will have a severe and deleterious effect on my physical and mental health and well-being.”

“9. I also have a number of concerns in relation to Mr. Adams welfare should he be returned to this jurisdiction. Mr. Adams through the media has been described as “an on the run paedophile”, a republican and a member of Sinn Fein and lastly the brother of Gerry Adams. There would be clear security issues in relation to his welfare within the prison system which the prison authorities within Northern Ireland would have to address. It has been my experience and knowledge that the prison authorities have failed to address these concerns in relation to other prisoners in the past which has resulted in the deaths of a number of prisoners whilst in the custody of the Northern Ireland Prison Service. One of the answers of the Prison Service to Mr. Adams predicament would be to put him under Prison Rules which would keep him under 23 hour lock up and in solitary confinement.”

“2. In this affidavit I set out the procedures which the NIPS deploy when dealing with prisoners who it is perceived may be under a significant degree of threat.

3. The Statement of Purpose, Vision and Values, sets out the NIPS commitment to ‘serve the community by keeping in secure, safe and humane custody those committed by the courts...’.A copy of the said Statement is exhibited herewith marked “AC1”. The NIPS regularly deals with individual prisoners, and groups of prisoners who are under a significant degree of threat. Prisoners can be under threat for a variety of reasons, for example:


• Public profile or position,

• the nature of their offence,

• affiliation to paramilitary organisations connected with the affairs of Northern Ireland,

• association with criminal gangs, or

• co-operation under Serious Organised Crime and Police Act (SOCPA) arrangements.


4. Each case is dealt with on an individual basis and all inmates are assessed on committal. That assessment, in addition to dealing with practical issues associated with being committed to prison, addresses confirmed or perceived threats and vulnerabilities.

5. The NIPS preferred option is that all inmates should be accommodated in the general prison population. Many offenders who are subject to threat can function adequately in the general prison population and the NIPS successfully manages inmates from different backgrounds who are the subject of enmities.

6. Where accommodation in the general prison population is not considered appropriate then a multi-disciplinary case conference approach is adopted to determine the most suitable accommodation area and regime. A case conference can, where the circumstances require, involve Healthcare, Psychology, Probation (both Prison and Community based), Learning and Skills Staff, Residential Management and the inmate’s legal representative.

7. Without full knowledge of the nature and extent of any threat and the specific needs in an individual case it is not possible to be definitive in setting out how a case is to be managed.”

Evidence relied upon by the applicant re the availability of local remedies both generally, and more particularly in respect of the complaint based upon pre-trial publicity
In this context, the applicant relies, inter alia, upon evidence contained in an affidavit sworn by a Mr. Gerald Eric John Simpson Q.C. on the 24th March, 2011. This deponent was put forward as an expert with respect to what remedy or remedies might be available to the respondent under the law in Northern Ireland in respect of his complaint based upon pre-trial publicity. His evidence establishes that the respondent can apply to the trial judge for a permanent stay of the proceedings. In considering any such application the court will have regard to matters such as:-

• the extent, in volume and time, of the pre-trial publicity;

• the content of the individual publications;

• the status of any person who may be the author of any content;

• the status of any person whose remarks may be quoted in any such publication;

• how long prior to the trial the publications were made;

• the likely cumulative effect on the jury of prolonged or sustained publicity; and the effect of the trial process itself, including the judge’s directions to the jury to ignore any publicity, in neutralising any potential harmful effect of publication.

Curiously, Mr. Simpson does not also deal with what remedies might be available to the respondent in respect of the complaint based upon delay. It may be that he was not asked to do so, but that is to speculate. Be that as it may, the position is, as has already been pointed out, that it is to be presumed, in the absence of cogent evidence suggesting the contrary, that a requesting state, including its courts, will respect a respondent’s fundamental rights and that a requesting state can and will provide an effective remedy or means by which “trial issues”, if they arise, can be addressed locally. In any case, the respondent accepts that a remedy is available to him before the courts of Northern Ireland in respect of both delay and pre-trial prejudice.

The effectiveness of the available local remedies in the circumstances of this case
Although it is part of the respondent’s case, as the Court understands it, that he cannot reasonably be expected to have recourse to available local remedies (where to do so would unduly prolong an already intolerable delay, and in circumstances where he faces what he contends is a likely prospect of being held in oppressive pre-trial custody amounting to inhuman and degrading treatment of him), there is in fact no cogent evidence tending to support his claims in that regard. No evidence at all has been adduced to establish a likelihood of undue prolongation of an existing delay. While some additional delay might be possible if other proceedings e.g., judicial review proceedings, separate from the trial proceedings, were required to be initiated and prosecuted, there is no evidence that the initiation and prosecution of other proceedings is required. Rather, there is clear evidence from the affidavit of Mr. Simpson Q.C. that the remedy in the case of the complaint based upon pre-trial publicity can be sought within the four walls, so to speak, of the criminal proceedings. While there is no evidence as to the exact position in that regard in relation to the complaint based upon delays to date, this court is entitled, in circumstances where cogent evidence tending to suggest the contrary has not been adduced, to presume that the requesting state, including its courts, will respect the respondent’s fundamental rights and that, as an aspect of their obligation to do so, they will ensure that all such remedies as may be available to the respondent will be effective in the circumstances of his case.

Further, insofar as the Court is concerned with the apprehension of the respondent that he faces, as a matter of likelihood, the prospect of being held in oppressive pre-trial detention and subjected to inhuman and degrading treatment, I have already ruled that no evidence has been adduced of sufficient cogency to rebut the presumption that the requesting state will respect his fundamental rights.

In the circumstances the Court considers that in the absence of concrete evidence, as opposed to statements of apprehension, sufficient to put this Court on its enquiry and cause it to look behind that which is presumed by law to be the case, any suggestion that the remedies available to the respondent in respect of complaints based upon delay and pre-trial publicity would be ineffective in the circumstances of his case must be rejected. It is not therefore necessary for the Court to go further and consider whether the matters complained of in respect of delay and pre-trial publicity are properly to be characterised as constituting egregious circumstances of the type spoken of by the former Chief Justice. Even if the circumstances are egregious, the availability to the respondent of an effective remedy before the courts of the requesting state obviates any necessity for this Court to consider intervening to protect the rights of the respondent. He must look to the courts of the requesting state to protect his rights, and those courts will be better placed in any event to deal with the issues raised for the reasons articulated by Fennelly J. in the Stapleton case.

While the respondent has sought to argue that Stapleton was wrongly decided, this Court is obliged by the doctrine of stare decisis to follow Stapleton where the circumstances indicate that it is apposite to do so. Stapleton represents a binding precedent handed down by the highest court in the land and this Court must apply it unless and until the Supreme Court says otherwise in some future case. In any event, this Court does not agree with the suggestion that Stapleton was wrongly decided.

The suggestion that the proposed prosecution is politically motivated and that the European arrest warrant system is being abused
This relates to ground no. 9 in the respondent’s points of objection. The respondent himself and Mr. Breen have both opined that the prosecution of the respondent at this time can properly be regarded as being politically motivated. It is suggested that the respondent’s association with Sinn Féin has resulted in him being treated differently than other persons accused of criminal offences, both by his own political party and also by those in opposing parties seeking to take advantage of and generate political capital from his familial and political association with Sinn Féin. It is further suggested that the European arrest warrant was issued in respect of the respondent for the purposes of facilitating his prosecution and/or punishment in the issuing state for reasons connected with his political opinion and/or that he will be treated less favourably than a person who does not hold the same political opinions as him.

There is simply no evidence beyond the coincidence in time between the issuing of the domestic and European arrest warrants on the 26th January, 2010, after a long period of perceived dormancy or inactivity in the investigation on the one hand, and the respondent being caught in, or having just come through, the eye of a storm of adverse and prejudicial media attention on the other hand, from which this Court could infer that the respondent’s prosecution is politically motivated or that the European arrest warrant system is being abused. The basis for the drawing of the suggested inferences is simply not there in this Court’s view. While other people on both sides of the Northern Ireland political spectrum, including the respondent’s prominent brother, may have made politically motivated public pronouncements, or have commentated inappropriately, and in a self-serving way, on the case there is no evidence that the Public Prosecution Service in Northern Ireland has been subjected to, and has yielded to pressure from external sources, and has acted out of political motivation. The Court therefore also rejects this ground of objection for lack of cogent evidence tending to rebut the presumption that the requesting state has behaved properly and has respected, and will continue to respect, the respondent’s fundamental rights.

Changes in the law relating to juror selection in the requesting state
It is common case that there is no specific remedy available to the respondent by means of which he can ventilate his complaint of being prejudiced by changes in the law relating to juror selection in the requesting state. In those circumstances, this Court must consider whether the fact of the law having been changed in the way that it has constitutes an egregious circumstance of the type spoken of by the former Chief Justice. It is the view of this Court that it cannot properly be characterised as such. It is no more than a fairly far reaching procedural change in indictable criminal cases coming before the courts of the requesting state. However, as was made clear in Brennan, there is no entitlement to parity of criminal procedure. Moreover, the ability to challenge jurors without cause shown is not a fundamental right guaranteed under our Constitution or under the Convention.

In any case, while there may be no specific remedy available to the respondent to address perceived or actual prejudices or disadvantages to him by the recent changes in the law, he is still entitled to a fair trial and the evidence of Mr. Simpson Q.C. makes it clear that a judge presiding over a jury trial has an overriding duty to ensure that an accused person receives a fair trial. While the respondent may now be unable to obtain advance details of the persons on the jury panel from which his jury will be selected, or to challenge prospective jurors without cause being shown and thereby influence the composition of the jury being selected to try him, as he could do were he being tried in this State, and could have done in Northern Ireland in the past, any concerns that he has about potential jury biases can be still brought to the attention of the trial judge in the course of the trial who is obligated to take whatever steps he or she considers necessary to ensure that the respondent receives a fair trial, e.g., by giving appropriate directions to the jury, perhaps with special emphasis, concerning the seriousness of the juror’s oath or affirmation and the requirement to be faithful to it; the need to be fair and impartial; the importance of coming to the case with an open mind; the need to decide the case only on the evidence adduced in court, and that they must not allow themselves to be influenced by any extraneous commentary or material that they may encounter or have encountered. In the absence of cogent evidence tending to suggest the contrary, this Court is entitled to presume that the courts of the issuing state will take all appropriate steps to ensure that the respondent receives a fair trial.

In that regard, the Court would further remark that it is quite incorrect for the respondent to contend that he no longer enjoys the presumption of innocence. He does enjoy the presumption of innocence notwithstanding opinions as to his guilt expressed by prominent persons, including his brother, in the public media, and such evidence as has been adduced does not establish, or even tend to suggest, that a court of trial in Northern Ireland would be unwilling or incapable of taking whatever steps might be required to vindicate and uphold the respondent’s presumption of innocence as an aspect of his right to a fair trial.

The inadequacy of available legal assistance point
It is the Court’s understanding that this point was raised primarily in the context of the discovery application that occurred at an earlier stage of the proceedings herein, and that it is no longer being pursued as a specific objection to the respondent’s surrender. In any event, the Court is not satisfied that the respondent’s ability to research and compile a representative selection of the adverse publications relevant to this case was seriously hindered by a lack of funded research in this particular case.

Conclusion
In all the circumstances of the case, this Court is not disposed to uphold the various specific objections raised by the respondent to his surrender. The Court is satisfied that the requirements of s. 16 of the Act of 2003 have been met, and in the circumstances it will make an order for the respondent’s surrender.