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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> The Minister for Justice and Equality -v- Patryk Stefaniak [2012] IEHC 321 (25 July 2012)
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Cite as: [2012] IEHC 321
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Judgment Title: The Minister for Justice and Equality -v- Patryk Stefaniak Neutral Citation: [2012] IEHC 321 High Court Record Number: 2011 281EXT Date of Delivery: 25/07/2012 Court: High Court Composition of Court: Judgment by: Edwards J. Status of Judgment: Approved |
NEUTRAL CITATION NUMBER [2012] IEHC 321 THE HIGH COURT Record No. [2011/No. 281 EXT.] IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003 AS AMENDED BETWEEN/ THE MINISTER FOR JUSTICE AND EQUALITY Applicant AND
PATRYK STEFANIAK Respondent JUDGMENT of Mr. Justice Edwards delivered on the 25th day of July, 2012 Introduction Having ruled against the respondent on the preliminary issue, the Court then proceeded to deal with the substantive surrender application. At the end of that hearing, the Court was not disposed to uphold the substantive objections raised by the respondent and in the circumstances made an order pursuant to s.16(1) of the Act of 2003 surrendering the respondent to the issuing state. Background to the Raising of the Preliminary Issue In the normal course of events the Court would attach little significance to this. A person is entitled to change their legal team if there is a crisis of confidence or for some other good reason. Regrettably, however, such a step can sometimes be strategic. It can be used to put off the evil day when a person has to face up to their situation, and deal with the fact that their surrender is being sought. One of the reasons why this sometimes happens is that a convicted person who is remanded in custody in Ireland awaiting a surrender hearing is entitled to claim credit in the issuing state for any time spent in prison in Ireland awaiting their surrender hearing. In many cases a prisoner remanded in custody in an Irish prison is subjected to a less harsh regime, and is accommodated more comfortably, than a person would be in the issuing state. It therefore arises from time to time that a convicted person facing surrender will seek to maximize the time he or she has to spend in an Irish prison awaiting a surrender hearing so that credit can be claimed for that time against the sentence that that person will have to serve in their home state when they are ultimately surrendered. The Court must therefore be vigilant to ensure that its process is not being abused, and that applications for adjournments based upon a change of legal team, or on some other basis, are bona fide and not made for strategic reasons. The relevance of this is that the Court considers that there has been a strategic attempt by the respondent within the last week, to secure a postponement of the surrender hearing in this matter, which attempt was not ultimately proceeded with for unexplained reasons. When the case was called yesterday the Court was made aware that the respondent had recently attempted to change his legal team a second time in as much as he had caused a signed authority to be sent from Cloverhill prison, where he is being held in custody awaiting his surrender hearing, to a Mr. Coen, solicitor, requesting the said Mr. Coen to take over his case. This apparently happened last Friday. It appears that he subsequently changed his mind again (whether he did so of his own initiative, or following persuasion by D'Arcy Horan solicitors, is unclear) and the Court was told that on yesterday's date he had executed yet another signed authority withdrawing instructions from Mr. Coen and reinstating the instructions of D'Arcy Horan, Solicitors. At the end of the day there was in fact no application for an adjournment. However, Mr. Coen, had very properly attended court to appraise the court as to what had occurred and the Court is grateful to him for the courtesy that he has shown it. The Court is nonetheless concerned that there may have been an attempt by the respondent to abuse its process. Had the change of legal team for the second time been persisted with, the Court would have approached any consequential application for an adjournment with suspicion, and with a healthy degree of scepticism, and would have required to have been satisfied by means of cogent and credible evidence that such an application was being made for bona fide reasons and was not being made strategically. In that regard it should be stated that the Court enquired of Mr. Coen as to how the respondent had come by his name, and as to whether he was previously known to Mr. Coen. Mr. Coen indicated that he was not previously known to him and that he had no idea as to why the respondent had attempted to instruct him. No information was forthcoming from the respondent, either through his solicitor or counsel, as to why he had taken steps to change his legal team for the second time at the 11th hour, and then reversed those steps. In the circumstances the Court directed that the case should proceed. The Preliminary Issue Before proceeding further, it may be helpful for the Court to set out the terms of s. 13(4) of the Act of 2003. It states:
(a) consent to his or her being surrendered to the issuing state under section 15 , (b) obtain, or be provided with, professional legal advice and representation, and (c) where appropriate, obtain, or be provided with, the services of an interpreter.''
4. Having carried out enquiries I became aware there was a European Arrest warrant for the arrest of one Patryk Stefaniak, D.O.B. 31/12/1987. The Warrant had been endorsed by the High Court for execution. 5. I say that I then informed Patryk Stefaniak that there was a European Arrest Warrant in existence for his arrest and I then arrested him on foot of the Warrant. I say that the time of arrest was 4:20p.m. on the 5th December, 2011 and the place of arrest was the St. Stephen's Green Shopping Centre, Dublin 2. 6. I cautioned Patryk Stefaniak as follows, 'You are not obliged to say anything unless you wish to do so, but whatever you do say will be taken down in writing and may be given in evidence' and he made no reply to the caution. 7. Patryk Stefaniak was conveyed to Harcourt Terrace Garda Station where he was processed as an arrested person. 8. At 6: I Opm in Harcourt Terrace Garda Station I spoke to Patryk Stefaniak. I asked him 'What is your father's name?' and he replied 'Dariusz'. I asked him 'What is your mother's name?' and he replied 'Anna, yes it's definitely for me.' 9. At 6:15pm I showed Patryk Stefaniak a copy of the warrant in my possession and brought it to his attention where it had been endorsed by the High Court for execution. I then gave him a copy of the European Arrest Warrant in both the English and Polish languages and a copy of Section 15 of the European Arrest Warrant Act 2003. 10. I informed Patryk Stefaniak in accordance with Section 13 of the European Arrest Warrant Act 2003 that he has a right to consent to his surrender to the issuing state, obtain or be provided with professional legal advice and representation and where appropriate obtain or be provided with the services of an interpreter. I read over a précis of the offences contained in the warrant and asked Patryk Stefaniak 'Do you know what this is about?', to which he replied 'Yeah, I read them, I understand that I do have a warrant.' " Counsel for the applicant indicated that she was in a position to deal with the point raised notwithstanding that it had been raised very late in the day, and had not been pleaded. The Court was referred to the judgment of Walsh J. in the Supreme Court case of The People (Director of Public Prosecutions) v. Shaw [1982] IR 1 and in particular:
6. An arrest which is unlawful initially may become lawful as from the point of time when such arrest complies with the requirements of lawful arrest and may then, if it continues beyond the period permitted by law, again become unlawful. Neither the initial unlawful imprisonment nor the subsequent unlawful imprisonment renders unlawful or invalid the intervening lawful period of imprisonment: Dunne v. Clinton 1 ; The People v. Walsh." In response to this counsel for the respondent contended that the Shaw decision was dependent upon its own peculiar facts and that it was distinguishable from the present case. When pressed as to why it was distinguishable, in terms of the principle upon which counsel for the applicant relied, counsel for the respondent stated that there had been an intervening event in the Shaw case that had prevented the Gardai from complying with the required formalities, whereas there was no such intervening event in the present case. Decision on the Adjournment Application and Preliminary Issue Confronted with this, counsel for the respondent makes the point that the respondent was represented by a different legal team at the arrest hearing and that he and his solicitors only began to act for the respondent in late February, 2012. However, that begs the question as to what has happened between the present team coming on record and the matter coming on for hearing on yesterday's date. It has to be presumed that as one of the first steps in taking over the respondent's file the new legal team interviewed him and took comprehensive instructions for the purposes of addressing what possible objections to his surrender might be open to him. This would have included, or should have included, taking detailed instructions from him concerning the circumstances of his arrest. No reasonable explanation has been put forward as to why the circumstances which it is contended were only discovered when the respsondent's legal team were recently served with the affidavit of Garda Reid were not discovered by the respondent 's own legal team in the course of taking instructions from him. The inexorable logic of counsel for the respondent's argument, if he is right, is that the respondent has been in unlawful custody since the 6th December of last year. If that is so it is fair to ask the question as to why nobody on his present legal team has sought to inititate an enquiry under Article 40.4.2 of the Constitution in relation to his detention since they became involved last February. A further point that requires to be made is that the objection now being raised is not pleaded. In fairness to counsel for the respondent, he recognized that and one of the grounds on foot of which he was seeking an adjournment was to enable him to amend his pleadings. The Court always has a discretion to allow an amendment of pleadings where the interests of justice require it. Of course, where an applicant is not prepared to consent to an amendment it requires the bringing of a formal motion grounded upon an affidavit. In this particular case, however, counsel for the applicant had indicated that she was prepared and able to deal with the point raised notwithstanding that it was not pleaded. She was maintaining an objection that the point was not pleaded, but leaving it in the hands of the Court as to whether or not the respondent could proceed with it. She was not insisting on the bringing of a formal motion to amend and was leaving the matter in the hands of the Court. In seeking his adjournment, counsel for the respondent did not even have a draft notice of motion or grounding affidavit seeking to amend the pleadings, nor did he have draft amended points of objection. That would not necessarily inhibit the Court from granting an adjournment to allow all of that to be done; alternatively granting an amendment to the existing points of objection without the bringing of a formal motion, but where the request was made as late in the day as it was made in this case the Court was entitled to examine whether the new point which the respondent was seeking to ventilate had any ostensible merit to it, and any reasonable prospect of success. The Shaw case upon which counsel for the applicant relies is not some obscure authority that a practitioner could reasonably be forgiven for not being familiar with. It is one of the leading cases in Irish Constitutional law. It is one encountered by every student of Irish law and it is one with which every practitioner can be expected to be familiar. It is a decision of the highest court in the land and it has represented good law for the last thirty years. Moreover, it is not a decision peculiar to its own facts. On the contrary, it establishes a number of important principles of Constitutional law of general application, one of which is that an arrest which is unlawful initially may become lawful as and from the point in time when such arrest complies with the requirements of lawful arrest. That principle has been reiterated time and again by the Supreme Court, e.g. The People (Director of Public Prosecutions) v. Buck [2002] 2 IR 268 and The People (D.P.P.) v. O'Brien [2005] I.R. 206 and has been applied many times by the High Court. Counsel for the respondent has been unable to point to any authority tending to contradict the Shaw principle relied upon or that is even suggestive that it is not correct, or only of limited application. In circumstances where the law is abundantly clear, and should be well known to the respondent's legal team, it seems to this Court that the proposition currently being advanced is all but unstateable. If the Court were to have granted the adjournment sought it would have served no useful purpose. It would however have delayed the proceedings further while the necessary motion was brought and adjudicated upon. The trial date fixed for yesterday would have to have been vacated and it would have been too late to slot in another case with the result that valuable court time would have been wasted. There were no useful further instructions that could have been taken from the respondent. Counsel for the respondent admitted in the course of his submissions that he was not seeking to challenge Garda Reid's affidavit as to what occurred. On the contrary he was seeking to rely upon it. Moreover, as the point was readily capable of being dealt with on the basis of existing evidence, and on the basis of well established authority the Court is at a loss to know for what purpose an adjournment was really being sought. Solicitors and counsel have a duty to the Court as well as to their client. It is not appropriate that adjournments should be sought without good grounds. It is apparent from the submissions made that the respondent's side had no good reason to believe that the Shaw authority was not apposite. It seemed to this Court that it was being sought for the purposes of engaging in a fishing expedition, more in hope than in expectation, to see if some authority might be dredged up to support a proposition that was on the face of it untenable. It was not a situation where counsel believed that such an authority actually existed, but simply did not have it to hand. Taking all of the above into account, the Court was satisfied that the interests of justice did not require the granting of the adjournment sought. The Court was content to rule upon the preliminary issue on the basis of the evidence and submissions before it. Having considered the matter it was satisfied to dismiss the preliminary objection, both as to Court's jurisdiction and otherwise as a basis for resisting surrender, on the grounds that the principle relied upon by the applicant in the Shaw decision is directly in point and is dispositive of the issue
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