JUDGMENT of Mr. Justice Geoghegan delivered 19th December 2005


This appeal has thrown up some very serious issues relating to the effectiveness and enforcement of the European arrest warrant. The appeal in point of form is from an order of the High Court (O’Sullivan J.) refusing an application under Article 40.4 of the Constitution, the court having been satisfied that the appellant was detained in accordance with law. In both courts the argument of the appellant has been that a relevant time limit in the procedures under the European Arrest Warrant Act, 2003 has long ago elapsed and that although the Act does not expressly say so, it must automatically follow that the appellant upon expiration of the relevant period is entitled to be released and that that necessary consequence is not in any way removed or diminished by the fact that the expiration of the time limit resulted from proceedings and appeals instigated by the appellant himself. Although the said Act of 2003 contains other time limits and expressly provides for release upon their expiration, no such provision is contained in respect of the particular time limit relevant to this case nor does the Act make clear that a court in dealing with any particular case is bound by such time limit. The obligation to release is claimed to arise by inference in particular having regard to the terms of section 10 of the Act which reads as follows:(b) …

As I will be explaining, the time limit on which the appellant relies is in a particular context contained in the Act and that context is the “Framework Decision” which is defined in the Act as meaning “Council Framework Decision of 13th June, 2002 on the European arrest warrant and the surrender procedures between Member States”. The Irish language and English language versions of the text of the Framework Decision are contained in Part A and Part B respectively of the Schedule to the Act. The logic of the appellant’s heavy reliance on the inclusion of the words “and the Framework Decision” in section 10 must be that if those words had been omitted the legal consequences might be quite different and the argument of the state much stronger. For reasons which will emerge in the course of this judgment, I find myself unimpressed by this line of argument. The difficulties which undoubtedly arise in this case are not caused or at least not primarily caused by any hasty or faulty draftsmanship in relation to the Act of 2003. That Act is not happily drafted but the primary question at issue in this case derives essentially from the Framework Decision itself. The issues relating to the interpretation of the time limit and the consequences of non-compliance in this case could arise in the courts of any member state of the European Union. In my opinion, there is nothing peculiar to either Irish legislation or the Irish courts system which confines the problem to Ireland.

I will now turn to the factual background to this case before resuming any discussion of the legal issues involved. A European arrest warrant against the appellant was issued by a District Judge (Magistrates’ Courts) at Thames Magistrates Court in London on the 29th January, 2004. The warrant requested that the appellant be arrested and surrendered for the purposes of conducting a criminal prosecution, sentencing following conviction or executing a custodial sentence or detention order. The relevant alleged offence was murder. Under the provisions of section 13 of the European Arrest Warrant Act, 2003 “The Central Authority in the State” (defined as the Minister for Justice, Equality and Law Reform) must apply to the High Court for endorsement of the warrant. This was done and the warrant was duly endorsed for execution by the High Court on the 2nd February, 2004. On the 11th February, 2004 the appellant was duly arrested in Limerick and on the same day brought before the High Court in Dublin and remanded in custody pursuant to section 13(5) to the 27th February, 2004 (being the date fixed for the purposes of section 16 of the Act). It is important to pause here and explain these two statutory provisions, in so far as they are relevant to this case. Under the provisions of section 13(5) a person arrested under a European arrest warrant shall as soon as may be after his or her arrest be brought before the High Court and the High Court if satisfied as to identity must remand the person arrested either in custody or on bail, must fix a date “for the purpose of section 16 (being a date that falls not later than twenty-one days after the date of the person’s arrest)” and must then inform the arrested person of certain rights which are set out in the subsection. To understand the significance of the reference to section 16, I think it useful to cite at this stage the opening words of subsection (1) of that section. These read as follows:The subsection then sets out five conditions including a condition that “the surrender of the person is not prohibited by Part III or the Framework Decision (including the recitals thereto).” The important point which I want to signpost at this stage is that “a date for the purpose of section 16” as provided for in section 13 is not just a date of hearing. It is a date of decision. Section 16(1) expressly contemplates that on the actual date fixed under section 13 the High Court makes the order directing that the person be surrendered etc.

Returning to the chronology, no decision was in fact made on the 27th February, 2004, the date fixed for the purposes of section 16. Instead the application was adjourned to the 12th March, 2004, was further adjourned on that date to the 18th March, 2004, was again adjourned on the 18th March to the 25th March, 2004 and finally, on that date was yet again adjourned to the 7th May, 2004. The orders made on each of these dates included continuing orders for remand in custody. Apparently, the reason for the several adjournments was because certain undertakings required by the Act were not before the High Court. These undertakings were certified and transmitted from Thames Magistrates Court on the 18th March, 2004. Arguments were made on behalf of the appellant that these undertakings did not comply with the Act and at that time the High Court (Ó Caoimh J.) having heard the submissions, reserved judgment until the 14th May, 2004 while at the same time continuing the remand in custody. On the 14th May, 2004 the High Court decided that the undertakings did comply with the Act and the surrender of the appellant under section 16 was duly ordered. The appellant was again remanded in custody.

The appellant appealed that decision but on the 16th March, 2005 the Supreme Court dismissed the appeal and affirmed the order of the High Court. On the same day an application was made to the High Court (O’Sullivan J.) for this inquiry under Article 40. In his reserved judgment in the High Court, O’Sullivan J. mentions that counsel had informed him that mention was made in the course of the hearing before the Supreme Court that a further legal challenge would be mounted in relation to time limits and that it was indicated by the Supreme Court that that was a matter for another day. Accordingly, that issue had to be considered de novo before O’Sullivan J.

As I have already indicated at the beginning of this judgment, the appellant at this stage was arguing before the High Court that a relevant and definitive time limit had expired and, that that being so, the appellant was automatically entitled to be released. The alleged time limit relied on was a time limit of sixty days from the arrest of the person concerned under section 13. For a proper understanding of this submission it is important that I, at this stage, cite section 16(10) and (11) which respectively read as follows:“Eurojust” is defined in the Act as meaning “the body established by Council Decision of 28th February, 2002 setting up Eurojust with a view to reinforcing the fight against serious crime.” To understand the context of these two subsections it is necessary to refer to the provisions of the Council Framework Decision. Article 17 in the English language version of that decision reads as follows: It is clear that subsections (10) and (11) of section 16 of the 2003 Act are intended to be implementations of Article 17 of the Framework Decision. On the argument of counsel for the appellant both in the High Court and in this Court subsection (11) is really irrelevant because in their submission no extension to ninety days was ever granted. The argument on behalf of the appellant is that the court was bound by a sixty day time limit and that once that time expired the appellant was entitled to be released. After giving the matter careful consideration, I have come to the conclusion that that submission cannot be correct.

As a general proposition I would agree with counsel for the appellant that where there is an ambiguity in legislation as to whether the Oireachtas intended in a given instance detention or freedom there is a prima facie presumption in favour of an interpretation involving freedom. But just because some particular aspect is not expressly spelled out in an Act it does not necessarily mean that there is an ambiguity as far as interpretation is concerned. There is a duty on the courts to read the Act as a whole and interpret it. Having carried out this exercise, I find myself broadly in agreement with the interpretation placed on the relevant provisions by the learned trial judge, O’Sullivan J. I particularly agree with the following passage in his unreported judgment delivered the 3rd May, 2005.It is important to make clear, as the High Court judge did in his judgment, that the appellant in relation to his time limit argument rested his case on the Framework Decision itself and the alleged incorporation of that Framework Decision into the Act and not on the provisions of section 16 of the Act.

In an earlier part of his judgment the learned High Court judge also made the following observation:I agree also with that passage though in a sense a stand alone interpretation is irrelevant. I am, however, even more in agreement with it if it is interpreted as it should be in the light of the Framework Decision.

The fundamental question which both parties have been addressing in this case has at all stages been the question of whether the appellant upon the expiration of the sixty day time limit unextended was entitled ipso facto to be released. I believe, however, that that was the wrong question. The correct question to be addressed and which was in fact addressed by the learned High Court judge is whether following upon the expiration of the sixty day period unextended the duty to execute the warrant ceases. If the answer to that question is in the affirmative then there can obviously be no disputing the appellant’s right to release. If, however, the duty to execute continues then there can be no right to an absolute or permanent release. It may, of course, be open to a court to grant bail. In some circumstances a court may consider that the proceedings ought to be struck out or dismissed and an order for release made on the grounds of a breach or breaches of the arrested person’s fundamental rights. This power of the court is not affected by the provisions of either the European Arrest Warrant Act, 2003 itself or by the Council Framework Decision. Indeed, the twelfth recital to the Framework Decision makes this clear and it is worth quoting in full. It would seem to me therefore, that if there was inordinate delay prejudicial to the rights, including fundamental rights of an arrested person that person might be entitled to be discharged and released. But that is quite different from suggesting that by reason of the expiration of an unextended sixty day time limit there is an automatic entitlement to release. I am satisfied that upon the expiration of that period the duty to execute the warrant has not come to an end but continues. Accordingly, it does not lead to release. Article 1, paragraph 2 of the Framework Decision provides as follows:In accordance with the recital already quoted paragraph 3 of the same Article goes on to provide: If, therefore, as the learned trial judge believes and, as I also believe, the sixty day and ninety day time limits are with a view to internal discipline within the member states and not with a view to conferring individual rights in individual cases then this appeal must fail.

Even if I am wrong about this interpretation and that in some circumstances the time limits are to take effect in individual cases, I would then be of the view that on any reasonable purposive interpretation of the Act and the Framework Decision, self-induced delay on the part of the arrested person must be discounted in calculating the period. Otherwise, in my opinion, the Framework Decision in many cases all over Europe will be unworkable.

Delays by way of court proceedings and appeals are common to all member states and indeed “delay” is the wrong word as that implies some kind of blameworthiness. A more accurate expression would be “a lapse of time”. In this jurisdiction unlike most jurisdictions in the European Union there is only one appeal from the highest court of first instance. In the jurisdiction of England and Wales there is an appeal to the Court of Appeal and a possible further appeal to the House of Lords. In Scotland the position is similar with the Inner House of the Court of Session performing the function of the Court of Appeal. In France there is the Cour d’Appel and in certain circumstances a further appeal from it to the highest court. Similarly, in most countries in Europe. All courts have recesses in the summer and at Christmas for instance. It would seem to me that in any country within the European Union it is quite a likely scenario that the sixty day or indeed the ninety day time limit would be exceeded without fault on anybody’s part especially if interlocutory applications or interlocutory appeals were brought, as happened in this case and as might happen in any case, as for instance, a discovery application. Such an application might go through all the court systems on appeal and inevitably these time limits would expire. Unless these periods are to be discounted in making the calculation the Framework Decision is unworkable. One could envisage, of course, a different form of Framework Decision that might have provided for a mandatory execution of the warrant within a particular period and the return of the person to the executing state in the event of a subsequent appeal by that person being successful. But no such provision is contained in this Framework Decision. I have already indicated that I believe that none of this arises because I am satisfied that the time limits of sixty days and ninety days have no relevance to individual rights in individual cases. But I repeat that if I am wrong about this, I still believe that time taken up in court proceedings instigated by the arrested person must, as a matter of purposive interpretation, be discounted.

The learned High Court judge in his judgment has referred both to section 16(7) of the Act and to Article 23(5) of the Framework Decision. Both of these provisions refer to the time limit for surrender of a person who has not consented to his or her surrender or has withdrawn such consent. If the High Court decided not to make an order for surrender the arrested person must be released unless serving sentence for some other reason. If it had been the intention in the Framework Decision that such would be the consequence of the expiration of the sixty day or ninety day time limits, I cannot imagine why a similar express provision for release would not have been contained in the decision.

For all these reasons, I would dismiss the appeal.






















Dundon v. Govr. of Cloverhill Prison

JUDGMENT of Mr. Justice Fennelly delivered the 19th day of December, 2005

The Court is agreed that this appeal should be dismissed. I wish to explain why I agree with the reasoning underlying the judgment of Geoghegan J. I also wish to demonstrate that inability to obtain immediate release upon expiry of the sixty-day period specified in the Framework Decision does not, by any means, signify that an arrested person is unable to invoke full and appropriate protection of personal and human, (including constitutional) rights, which it is the duty of these courts to vindicate.
I agree specifically with the judgment of Geoghegan J that the Appellant is not entitled to be released by reason of the failure of the Court to order his surrender to the issuing state within the sixty-day period mentioned in the European Arrest Warrant Act 2003 and the Framework Decision.
I reach this conclusion by an interpretation of the Act of 2003 in the light of the Framework Decision. It is clear, as Geoghegan J points out in his judgment, “that subsections (10) and (11) of section 16 of the 2003 Act are intended to be implementations of Article 17 of the Framework Decision.”
It is a well-established principle of European Community law that the courts of the Member States are under an obligation when interpreting any national law introduced for the purposes of implementing a directive “to interpret [the] national law in the light of the wording and purpose of the directive in order to achieve the result…” to be achieved. (Case 14/83 Von Colson and Kamann v Land Nordrein-Westfalen [1984] ECR 1891, paragraph 26). The Court of Justice states that this principle may apply to national laws whether passed before or after the relevant directive. (Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8.)
The stated justification for this principle is a combined reading of Article 249 (formerly Article 189) of the Treaty Establishing the European Community (“EC Treaty”), under which directives are binding on Member States “as to the result to be achieved” and Article 10 (formerly Article 5) of the EC Treaty under which Member States are under a duty “to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising under this Treaty or resulting from actions of the institutions of the Community.” The Treaty on European Union (“TEU”) contains no provision corresponding to Article 10EC. As Denham J explains in her judgment, the Framework Decision was adopted under Title VI of that Treaty: it is a so-called “third-pillar” measure. By reason of the absence from the TEU of any provision corresponding to Article 10EC, a number of Member State governments, in Case C-105/03 Criminal proceedings against Maria Pupino (judgment delivered on 16th June 2005), disputed the applicability of the principle of “conforming interpretation” The expression is a poor translation of the French: interpretation conforme) to the interpretation by national courts of national laws passed in order to implement Framework Decisions adopted pursuant to Title VI. The Court of Justice rejected these arguments. It held (see paragraph 42 of the judgment):

“It would be difficult for the Union to carry out its task effectively if the principle of loyal cooperation, requiring in particular that Member States take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under European Union law, were not also binding in the area of police and judicial cooperation in criminal matters, which is moreover entirely based on cooperation between the Member States and the institutions……”

The Court thus concluded:

Article 34(2)(b) of the Treaty on European Union provides that Framework Decisions “shall be binding on Member States as to the result to be achieved…” It is the “third-pillar” provision which corresponds, therefore, with Article 249 of the EC Treaty. It follows, as I will explain, that the Act of 2003 as a whole and section 16, subsections (10) and (11) in particular should be interpreted “as far as possible in the light of the wording of the purpose of the framework decision in order to attain the result which it pursues……” I see no reason why that principle cannot be applied in this case. It is true that the Court of Justice, in Pupino and earlier cases, recognised certain inherent limits to the principle of “conforming interpretation.” In particular it would not apply, when the “national law ……cannot receive an application which would lead to a result compatible with that envisaged by that framework decision.” It explained that “the principle of conforming interpretation cannot serve as the basis for an interpretation of national law contra legem.” I do not believe that it would be contra legem, as that expression is used in the Pupino judgment, to interpret the Act of 2003 in the light of the Framework Decision. That principle applies whichever of the alternative interpretations of Article 17.3 of the Framework Decision is correct. On the one hand, if Geoghegan J is correct, as I believe he is, in holding that it does not confer such a right, there is no problem of inconsistency. On the contrary hypothesis, that the Framework Decision, properly interpreted, does confer such a right, it would seem clear that the Act of 2003 could not be interpreted so as to deprive an arrested person of that right. The Court of Justice also stated in Pupino:
As I have stated at the outset, for the reasons given by Geoghegan J, I do not believe that the Appellant can derive any right to be released at the end of the sixty-day period from either the Act of 2003 or from the Framework Decision.
As I have said, I also wish to discuss the rights of arrested persons in general. It does not follow that persons arrested pursuant to a European Arrest Warrant are unable to invoke protection of substantive and procedural rights, merely because there is no automatic right to release after sixty days.
It has to be acknowledged, at once, that the legislation presents unusual problems of interpretation. The European Arrest Warrant is itself a novel instrument. It was adopted in the wake of the devastatingly tragic events of 11th September 2001. The drafting is extraordinarily loose and vague, particularly in the manner in which offences are defined. The Court, on this appeal, has to consider an Act of the Oireachtas which implements a Framework Decision adopted pursuant to the provisions of Title VI of the Treaty on European Union. However, Ireland has not made the declaration which is necessary under Article 35 TEU before the Court of Justice can exercise the interpretative jurisdiction envisaged by that Article. Hence, this Court decides this question without any guidance from that Court. The Court of Justice may, of course, be asked, on a reference from another Member State, to rule on the interpretation of the sixty-day period.
In circumstances where the Framework Decision and the 2003 Act are intended to abolish all existing extradition arrangements between the Member States of the European Union and to substitute a new and expeditious system of surrender, obvious questions arise concerning the extent of protection of the rights of arrested persons.
The European Arrest Warrant is designed to operate, fundamentally within a judicial process. This essential aspect of the procedure is not merely a recognition that its execution “must be subject to sufficient controls,” as is stated in the eighth recital, but of the principle of legality. Persons cannot be surrendered compulsorily from one Member State to another except in accordance with an open and transparent judicial procedure which guarantees respect for fundamental human rights.
As is pointed out in the judgment of Geoghegan J, Article 1(3) of the Framework Decision provides:

“This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.”

This is the only substantive provision dealing with fundamental rights and it provides no further guidance as to how that respect is to be effected. In addition, there are a number of relevant recitals in the preamble to the Framework Decision. Not all of these recitals are precisely reflected in the provisions of Article 1(3). The recitals are cited by Geoghegan J. I need not set them out in detail, but they cover, in addition to the matters mentioned in Article 1(3):· The Charter of Fundamental Rights of the European Union;· The possibility of refusal to surrender where there is reason to believe that the warrant is issued in pursuit of discrimination on a number of listed impermissible grounds;· The constitutional rules of a Member State relating to due process, freedom of association, freedom of the press and freedom of expression;· Refusal to surrender based on risk of subjection to death penalty, torture or other inhuman or degrading treatment or punishment.

A difficult question of interpretation of the Framework Decision might arise concerning reliance by a national court on such of these provisions as is merely declaratory and not reflected in Article 1(3). As already stated, the Court of Justice has, in the case of Pupino, cited above, held that national courts are bound to interpret rules of national law “so far as possible, in the light of the wording and purpose of the Framework Decision.”
This interpretative obligation is not affected by the absence, in the case of Ireland, of a power to refer questions for preliminary ruling to the Court of Justice. Article 35(4) ensures that Member States who have not made a declaration may, nonetheless, participate in proceedings on references from the courts of other Member States. Article 35(7) gives the Court of Justice jurisdiction to interpret the Framework Decisions in disputes between any Member States.
This Court is required to interpret and apply the Act of the Oireachtas which implements the Framework Decision. It is notable, in this respect, that section 16(1) (e) envisages that a person will be surrendered provided that inter alia “the surrender of the person is not prohibited by Part 3 or the Framework Decision (including the recitals thereto).” (Emphasis added). Section 37, which is in Part 3 of the Act, prohibits any surrender which would be incompatible with rights variously based on the European Convention on Human Rights or its Protocols and, most importantly, that it would “constitute a contravention of the Constitution.”
Insofar as the statutorily permitted grounds of refusal to surrender go beyond the terms of Article 1(3) of the Framework Decision, but are covered by its recitals, they are, nonetheless, expressly invoked by section 16(1)(e) of the Act. Furthermore, the Act prohibits any surrender which would contravene any provision of the Constitution. It would not be possible, by reference to the obligation to interpret in conformity with the Framework Decision, to ignore these provisions: such an interpretation would be “contra legem.” These courts are bound to apply provisions of Acts of the Oireachtas. The Framework Decision does not have direct effect. Where a provision of an Act of the Oireachtas conflicts directly with a provision of a Framework Decision, this Court must give preference to the former. To do otherwise would, to cite the language of the Court of Justice in Pupino, be contra legem.
The precise contours and limits of the rights which can be invoked under the Act will have to be explored as cases arise. I am merely concerned to show that, while the sixty-day period does not confer protection on individuals, there are other features of the Framework Decision, at least as that measure is implemented in Irish law, upon which reliance may be placed by individuals in appropriate cases.