THE HIGH COURT
[2025] IEHC 273
BETWEEN Record No 2024 EXT 042
MINISTER FOR JUSTICE
APPLICANT
v.
MARK WARNER
RESPONDENT
JUDGMENT of Mr. Justice Patrick McGrath delivered on the 11April 2025
1. In this application, the applicant seeks an order for the surrender of the respondent to Northern Ireland on one Trade and Co-Operation Agreement warrant ('TCAW'), for the purposes of being prosecuted for one offence of Sexual Assault contrary to Article 7(1) of the Sexual Offences (Northern Ireland) Order, 2008.
2. The TCAW having been endorsed, the respondent was thereafter arrested and brought before the High Court on the 20 January 2025. He was admitted to bail pending the determination of these proceedings.
3. The particulars of the alleged offence are set out in paragraph (e) of the warrant. It is alleged that, on an unknown date between the 25 March and the 18 April 2018, the Respondent is alleged to have touched a child under 18 years of age on her bottom over her clothing and then touched her under her clothing on her bottom and vagina.
UNCONTROVERSIAL MATTERS
4. A Trade and Co-Operation Agreement Warrant ['TCAW'] seeking the surrender of the Respondent was issued by District Judge George Conner, sitting at Laganside Magistrates Court Belfast, on the 9 February 2024. I am satisfied that the Warrant was lawfully issued by a 'judicial authority' within the meaning of the European Arrest Warrant Act, 2003 (as amended) ['the 2003 Act'].
5. No issue is taken in relation to identity, and I am satisfied the Respondent is the person named in the Warrant.
6. I am satisfied that none of the matters referred to in sections 21A, 22, 23 and 24 of the 2003 Act, arise for consideration in this application and surrender of the respondent is not precluded for any of the reasons set forth in any of those sections.
7. I am satisfied no reasons have been advanced such as to suggest that the surrender of the Respondent is prohibited under Part 3 of the 2003 Act.
8. The TCAW is a warrant issued in accordance with Article LAW.SURR.112 of the Trade and Co-Operation Agreement. It is therefore necessary to demonstrate correspondence in accordance with s38 of the 2003 Act.
9. Section 5 of the 2003 Act provides:-
'For the purposes of this Act, an offence specified in a European Arrest Warrant corresponds to an offence under the law of the state, where the act or omission that constitutes the offence so specified would, if committed in the State on the date on which the European arrest warrant is issued, constitute an offence under the law of the State'.
10. The relevant principles for showing correspondence are now well established. In assessing correspondence, the question is whether the acts or omissions that constitute the offence in the requesting state would, if carried out in this jurisdiction, amount to a criminal offence - Minister for Justice v Dolny [2009] IESC 48
11. No issue is taken by the Respondent in relation to correspondence. I am, in any event, satisfied that the acts or omissions that constitute the offence on the warrant corresponds with an offence in Ireland, being Sexual Assault contrary to Section 2 of the Criminal Law (Rape)(Amendment) Act, 1990 (as amended).
GROUNDS OF OBJECTION
12. The sole ground of objection relied upon by the Respondent at the hearing concerns minimum gravity. It is the contention of the Respondent that this Court cannot order surrender as the requirements of minimum gravity, as set out in Section 38 of the 2003 Act, are not met.
13. At paragraph (c) of the TCAW, the section entitled 'Indications on the length of sentence', the following is stated by the issuing judicial authority:-
'1. Maximum length of the custodial sentence or detention order which may be imposed for the offence(s):
A person guilty of sexual assault is liable on conviction on indictment to imprisonment for a term not exceeding 10 years'
14. As in this jurisdiction, it appears that the offence of Sexual Assault is what is colloquially referred to as an 'either way offence'. In other words, it is an offence that, dependent upon various factors such as for example the gravity of the alleged offending, may be tried by a Judge in the Magistrates Court or a Jury in the Crown Court. The maximum sentence which may be imposed by the Magistrates Court in Northern Ireland upon conviction of any individual offence is one of 6 months imprisonment.
15. The Respondent has adduced evidence as to the likely disposal of this offence, were he to be returned to and tried in Northern Ireland. As provided for by Article 609(4) of the Trade and Cooperation Agreement, advice and assistance have been given to the Respondent by a solicitor in Northern Ireland, namely Mr Garrett McCann of DA Martin Solicitors.
16. In an affidavit sworn by Ms Lucy O'Connor, legal executive at Connelly, Fleming Solicitors, Dublin 7 there is an account of contacts between that firm and Mr Mc Cann in relation to the progress of the intended case against the Respondent in Northern Ireland.
17. At paragraph 4 of that affidavit, Ms O'Connor says that she has been informed by Mr McCann that he remains in active communication with the Public Prosecution Service in Northern Ireland in respect of this case, that the bench warrant issued by Armagh Magistrates Court remains extant and furthermore that a definitive date for the trial of the Respondent in the Magistrates Court has yet to be set.
18. Exhibited to Ms O'Connor's affidavit, are the prosecution bundle of papers (which appear to contain inter alia the statements to be relied upon by the Prosecution) together with a covering letter from the Public Prosecution Service of Northern Ireland, dated the 13 March 2025, in which it is stated:-
'On the basis of papers sent by Police to the Public Prosecution Service, reporting you for offences arising out of an incident between the 28th day of March 2018 and the 4th day of April 2018, a decision has been taken to prosecute you in the Magistrates Court'
19. It is the respondent's submission that, given that he is to be prosecuted in the Magistrates Court and can only therefore face a maximum sentence of 6 months imprisonment if convicted, the requirements of minimum gravity under the 2003 Act are nor met and he cannot therefore be surrendered.
DISCUSSION
20. Section 38 of the 2003 Act (as amended) provides:-
'(1) A person shall not be surrendered to an issuing state under this Act in respect of an offence unless-
(a) under the law of the issuing state the offence is punishable by imprisonment or detention for a maximum period of not less than 12 months, or
(b) a term of imprisonment or detention of not less than 4 months has been imposed on the person in respect of the offence in the issuing state, and the person is required under the law of the issuing state to serve all or part of that term of imprisonment'.
21. A similar argument to that of the Respondent was considered by Donnelly J in Minister for Justice v R.L.T [2018] IEHC 210. In that case the maximum available sentence in respect of the three offences for which surrender was sought was 12 months or more. The Respondent had however received an opinion from Counsel in the requesting state which indicated that, in his opinion, the case would be dealt with in the Magistrates Court and the sentence imposed for each offence would not likely meet the minimum gravity requirement of 12 months.
22. At paragraph 28 of her Judgement, Donnelly J stated that the submission for the respondent 'is confined to the narrow proposition that the Court must have regard to the maximum sentence possible for the specific acts which have been committed (or alleged to have been committed) by the requested person, and not the overall statement of what sentence may be provided for the offence'
23. The court there did not accept that the only evidence before the Court on the issue was that of the expert but said the Court was also entitled to consider the statement in the EAW that the offences are ones which carry a maximum sentence in excess of the minimum gravity requirements under the Framework Decision.
24. She then stated at paragraph 41:
'In the view of the Court, it is not sufficient by way of proof, when challenging the statement as to minimum gravity set out in the EAW, to rely upon the likelihood of a particular sentence being imposed, or the likelihood of a particular jurisdiction being adopted for the prosecution of the offence. These are quintessentially matters for the issuing state and indeed for the trial court to decide'
25. Donnelly J also referred to the principle that the 2003 Act must be interpreted in accordance with the wording and purpose of the 2002 Framework Decision unless to do so would be 'contra legem' and noted that to give an interpretation that would require the executing judicial authority to adjudicate upon the specific acts alleged and make a determination on how a sentencing court might approach a case would run contrary to the stated aim of the Framework Decision to introduce a simplified system of surrender between judicial authorities. She concluded that where there is a possibility for the maximum sentence set out in the EAW to imposed for the acts for which surrender is sought, provided that maximum sentence reaches minimum gravity, surrender is not prohibited.
26. This issue was again considered, in somewhat different factual circumstances, by the Court of Appeal in Minister for Justice v Brazda [2024] IECA 265. In that case the surrender of the Respondent was sought to serve a sentence of 7 months imprisonment, which could not be altered unless the respondent paid a fine as originally imposed in respect of the offence in question. The EAW in question had been received from the Czech Republic and as a matter of domestic Czech law, although sentence had been pronounced, the sentence could not become enforceable until the respondent was surrendered and brought before the Court. In those circumstances the Court of Appeal, at paragraph 22 of its Judgement, disagreed with the High Court and held that the proceedings against the appellant had not concluded on the date the sentence was pronounced as the sentence was not yet operative. The Court therefore found that the circumstances of the case were covered by Section 10(b) of the 2003 Act and not, as found by the High Court, Section 10(d) of the said Act.
27. The Court of Appeal stated as follows at paragraph 22:-
'As the Czech Republic authorities have indicated, the surrender of the appellant is sought to conclude the prosecution against him in respect of the offence at issue. Procedural steps remain outstanding to give effect to the sentence imposed on 18 January 2021. Accordingly, I disagree with the High Court that the proceedings against the appellant concluded on 18 January 2021, when the sentence was pronounced, as the sentence is not yet operative. While the High Court does not appear to have expressed a view as to whether the minimum gravity requirement of 12 months' imprisonment in respect of a prosecution warrant was met, I am of the opinion that the fact that a 7 month term of imprisonment has been imposed, which cannot be altered (except if the appellant chooses to pay the original fine), does not have a significance in terms of the minimum gravity requirements of the offence. The maximum period which the offence at issue is punishable by is 2 years imprisonment. Minimum gravity for a prosecution warrant is defined by the maximum period of imprisonment that can be ordered in respect of the offence. It is not defined by what is actually imposed having regard to the facts of this case. [emphasis added] Accordingly, I am of the view that the minimum gravity requirement for the purpose of a prosecution warrant is satisfied regardless of the fact that the District Court in Louny now has no discretion to increase the 7 months imprisonment imposed to anything greater.'
28. In the present case there is a statement by the issuing judicial authority at paragraph (c) of the TCAW that the maximum sentence which can be imposed for the offence for which surrender is sought is one of 10 years imprisonment when tried on indictment. As a matter of law therefore this offence is 'punishable' in Northern Ireland by a sentence of imprisonment which well exceeds 12 months.
29. A decision has been made that the case will be tried in the Magistrates Court. The sentencing jurisdiction of that Court is limited a maximum term of 6 months imprisonment. In my view that does not alter the fact that, as a matter of Northern Irish Law, the offence is 'punishable' by a maximum penalty of 10 years. The fact that, based on a consideration of the individual circumstances of the underlying facts of this case, a decision was made to try the case at the Magistrates Court (where the maximum sentence is 6 months) does not alter that fact.
30. I also consider it to be of some significance that different terms are used in respect of the assessment of correspondence and minimum gravity. In, considering the issue of correspondence under Section 5 of the 2003 Act one looks to the acts underlying the offence in order to assess correspondence. On the other hand, in considering the issue of 'minimum gravity' the question is not whether the 'acts underlying the offence' meet the minimum gravity threshold but whether the 'offence' meets that threshold.
31. It should also be noted that there is nothing in the papers submitted by the Respondent to suggest that this decision to try the case in the Magistrates Court is irreversible. But in any event, I don't believe that it is necessary to take this into account when deciding on this issue.
32. As noted by Burns J in Brazda at paragraph 22 'Minimum gravity for a prosecution warrant is defined by the maximum period of imprisonment that can be ordered in respect of the offence. It is not defined by what is actually imposed having regard to the facts of the case'. In that case, which concerned a prosecution warrant where there was no possibility that a sentence in excess of 7 months would be imposed on the Respondent if surrendered as sentence had been pronounced but not imposed, the Court stated that the minimum gravity requirement under Section 38 of the 2003 Act was met as the maximum sentence available for the offence, 2 years imprisonment, exceeded the 12 month threshold. In this case, even taking the Respondents case at its height and assuming the decision to try the case in the Magistrates Court is irreversible and therefore a maximum of 6 months could be imposed if the Respondent was convicted in Armagh Magistrates Court, the fact remains that the maximum period for which this offence is punishable under the law of Northern Ireland is 10 years. Minimum gravity here is not determined by what sentence can actually be imposed if the respondent is convicted of the offence in the Magistrates Court.
33. For these reasons, therefore, I reject the objection made by the Respondent and conclude that the requirements of minimum gravity under the 2003 Act are met.
Conclusion
34. I will therefore make an order for the surrender of the Respondent to Northern Ireland pursuant to s. 16 of the 2003 Act.