Judgment of Mr Justice Finnegan delivered on the 19th day of May 2010
The appellant appeals against an order of the High Court (Peart J.) of the 8th October 2008 whereby it was ordered pursuant to section 16 of the European Arrest Warrant Act 2003 that the appellant be surrendered to the United Kingdom. The order was made on foot of a European arrest warrant issued on the 17th April 2007. The underlying arrest warrant issued on the 16th December 2003 and relates to a single offence described in the warrant as follows:-
“Michael Anthony Fallon also known as Michael Fallon also known as Michéal Anthony Ó Fallúin between the 14th day of September 1998 and the 8th day of October 1999 within the jurisdiction of the Central Criminal Court for England and Wales conspired together with Philip Ryall and David Alexander Fallon to defraud the United Kingdom Passport Agency by the provision of false passport applications contrary to common law.”
The United Kingdom had previously sought to extradite the appellant and had also issued a European arrest warrant in respect of the same offence. An extradition request under Part III of the Extradition Act 1965 was made and the warrant was endorsed on the 2nd January 2004. The appellant was arrested on foot of the endorsed warrant on the 8th January 2004. By order of the High Court (Peart J.) of the 22nd June 2004 the proceedings under Part III of the Extradition Act 1965 were struck out on consent having regard to the decision in O’Rourke v Governor of Clover Hill Prison (2004) 2 IR 456.
On the 21st June 2004 a European arrest warrant in respect of the appellant and in respect of the offence was issued from Bow Street Magistrates Court. The European arrest warrant was endorsed for execution and the appellant was arrested on foot of the same on the 26th July 2005. Points of objection raised by the appellant resulted in three written judgments of the High Court (Finlay Geoghegan J.) and on the 26th October 2005 an order was made for the surrender of the appellant. On the same date a committal warrant issued pursuant to section 16 of the European Arrest Warrant Act 2003. By notice of appeal dated the 4th November 2005 the appellant appealed the order of surrender and which notice of appeal was filed one day before the expiry of the fifteen day period specified in section 16(3) of the European Arrest Warrant Act 2003. As a consequence the appellant was not surrendered within the period of ten days specified in section 16(5) of the Act. On the 23rd November 2005 the appellant sought an enquiry into the legality of his detention pursuant to Article 40.4.2 of the Constitution. Following an enquiry, the High Court (Peart J.) refused to order his release. The appellant appealed that decision to the Supreme Court. Shortly before the hearing of the appeal the appellant withdrew his appeal against the order of the High Court of the 26th October 2005 directing his surrender. His appeal against the order of the High Court made on his application pursuant to Article 40.4.2 was heard on the 18th January 2007. Judgment was delivered on the 3rd May 2007. The appellant was successful and his release was directed: as the appellant had not been surrendered within the period of ten days specified in section 16(5) of the Act his release was required by section 16(7) of the Act. On the 17th April 2007 the European arrest warrant of the 25th June 2004 was withdrawn and a further European arrest warrant issued and it is that warrant which is the subject matter of this appeal.
The European arrest warrant of the 17th April 2007 was endorsed by the High Court on the 4th July 2007 and on foot of the same the appellant was arrested on the 13th July 2007. The appellant filed grounds of objection. Following a hearing on the 8th October 2008 the High Court (Peart J.) ordered his surrender to the United Kingdom. Against the judgment and order of Peart J. the appellant appeals to this court.
Notice of Appeal
The Notice of Appeal raises twenty distinct grounds not all of which were pursued before this court. The appellant abandoned some grounds and consolidated the remaining grounds into four grounds as follows:-
1. The time limits provided for in the Framework Decision Article 23 and the European Arrest Warrant Act 2003 section 16(5) and 16(7) having expired, by reason of the appellant not having been surrendered on foot of the European arrest warrant of the 21st June 2004 the appellant cannot now be surrendered on foot of the European arrest warrant of the 17th April 2007.
2. Article 4.7 of the Framework Decision confers a discretion to refuse surrender which discretion ought to be exercised in favour of the appellant and his surrender refused.
3. Having regard to the comity of courts, the principle of mutual recognition referred to in Recital (6) of the Framework Decision and the high level of confidence between Member States upon which the European arrest warrant is based according to recital (10) of the Framework Decision and having regard to the conduct of the United Kingdom authorities surrender ought to be refused.
4. The underlying warrant is spent. There being no underlying warrant the European arrest warrant issued on the 17th April 2007 was not duly issued as required by the European Arrest Warrant Act 2003 section 10 and the appellant may not be surrendered on foot of the same.
I propose to deal with each of these four grounds in turn.
1. The time limits provided for in the Framework Decision Article 23 and the European Arrest Warrant Act 2003 section 16(5) and 16(7) having expired, by reason of the appellant not having been surrendered on foot of the European arrest warrant of the 21st June the appellant cannot now be surrendered on foot of the European Arrest Warrant of the 17th April 2007.
In short the appellant submits that the European arrest warrant of the 17th April 2007 being the third attempt to obtain the return of the appellant to stand trial is an abuse of process and that his surrender on foot of the same would be oppressive and unfair. Analogy is drawn with repeated attempts to convict at criminal law: it is submitted that the proceedings on foot of the European arrest warrant are a step in the criminal process and so constitute part of a repeated attempt to secure the conviction of the appellant. Further it is submitted that the three judgments of the High Court on the European arrest warrant of the 17th April 2007 and the judgment of the Supreme Court on the application under Article 40.4.2 of the Constitution create estoppels or give rise to res judicita.
No argument was submitted that it was not open to the authorities in the United Kingdom to withdraw the European arrest warrant of the 21st June 2004 and issue the European arrest warrant of the 17th April 2007 in principle: it is however argued that it ought not to have been done in the present case. It is, of course, part of our jurisprudence that there should not be repeated attempts to procure a conviction: E.S. .v. Judges of the Court Circuit Court and the Director of Public Prosecutions [2008] IESC 37. However proceedings under the European Arrest Warrant Acts are not criminal proceedings and the same principles will not apply. In the present case the attempted extradition was discontinued without any decision being made. Again the European arrest warrant of the 21st June 2004 resulted in an order for the appellant’s surrender: all issues of law raised by him were determined against him and an order for his surrender made. His appeal against the order of the High Court was withdrawn. His surrender on foot of that European arrest warrant did not occur solely because of the failure to effect his surrender within the times stipulated in the Acts: again there was no decision on any issue which could create an estoppel in the appellant’s favour or give rise to res judicata. Counsel for the appellant did not draw to the court’s attention any issue either in the three judgments delivered in the High Court on the European arrest warrant of the 21st June 2004 or in the judgment in the Supreme Court on the application under Article 40.4.2 which could conceivably give rise to an estoppel or issues of res judicata. I am satisfied that neither estoppel nor res judicata arises.
Other than to assert that it was not accepted that it was open to the United Kingdom authorities to issue the second European arrest warrant on the 17th April 2007, no argument was advanced that it was impermissible to do so. The form of European arrest warrant is set out in the annex to the Framework Decision. What is envisaged by the Framework Decision and the European Arrest Warrant Acts is that upon a properly completed European Arrest Warrant being presented it should in general not be necessary to go behind the same, all relevant information being before the court: Minister for Justice Equality and Law Reform v Altaravicius [2006] 3 IR 148. The Framework Decision envisages, instead of extradition, a system of surrender between judicial authorities based on a high level of confidence between Member States and the mutual recognition of judicial decisions. In the present case there exists a domestic warrant of arrest for the purpose of conducting a criminal prosecution of the appellant. The principle of mutual recognition applies to that domestic warrant and it should be executed on that basis. This is, of course, subject to the issues raised by the appellant at grounds 2, 3 and 4 set out above: however if unsuccessful on those grounds there is no reason why surrender should not be effected simply because the European arrest warrant is the second issued in respect of the same domestic warrant.
Insofar as delay has been incurred by reason of the time taken for proceedings on foot of the extradition request and the earlier European arrest warrant in the High Court and in the Supreme Court and on the current warrant again in both courts it has not been suggested that by reason of such delay a fair trial could not be obtained but rather that the delay was oppressive of the appellant. The appellant was, of course, entitled to challenge both European arrest warrants: however in considering delay (should it be relevant) time taken in prosecuting court proceedings should be discounted.
In these circumstances I am satisfied that in bringing a second European arrest warrant the United Kingdom authorities cannot be said to be acting in such a manner as would engage section 37(1) of the Act of 2003 and in particular cannot be said to be acting in breach of the Constitution or the European Convention on Human Rights.
2. Article 4.7 of the Framework Decision confers discretion to refuse surrender which discretion ought to be exercised in favour of the appellant and his surrender refused.
Article 4 of the Framework Decision insofar as relevant to the appellant’s submission provides as follows:-
The European arrest warrant of the 17th April 2007 at (e) sets out a description of the circumstances in which the offence the subject matter of the warrant was committed. From this setting out it is clear that part of the conduct constituting the offence took place in Ireland while the remainder of the conduct took place within the United Kingdom. On behalf of the appellant it is submitted that as a consequence there is a discretion to refuse to execute the European arrest warrant as the offence falls within Article 4.7(a). The learned trial judge failed to appreciate the existence of that discretion.
The Framework Decision was given effect in Irish law by the European Arrest Warrant Act 2003. Article 4.7 of the Framework Decision confers upon Members States a discretion in implementing the Framework Decision in domestic legislation to provide in the circumstances therein set out that there shall be no surrender. It is left to the Member States to decide whether they want to implement Article 4.7 and, if so, as an optional or as a mandatory ground of non-execution. In relation to Article 4.7 the Oireachtas enacted section 42 of the 2003 Act as amended by the 2005 Act. In these circumstances Article 4.7 has no application outside the circumstances expressly provided for in section 42 as amended. Section 42 as amended by the Criminal Justice (Terrorist Offences) Act 2005 section 82 provides as follows:-
“42. A person shall not be surrendered under this Act if –
The Director of Public Prosecutions is not considering the bringing of proceedings against the respondent for an offence. The offence of conspiracy to defraud the United Kingdom Passport Authority could not be prosecuted in Ireland. Section 42 has no application to the appellant: it is not suggested that consideration is being given to bringing proceedings against the appellant for an offence and no proceedings have been brought in the State against him for an offence consisting of an act or omission of which the offence specified in the European arrest warrant issued in respect of him consists in whole or in part.
The appellant fails on this ground.
3. Having regard to the comity of courts the principle of mutual recognition referred to in recital (6) of the Framework Decision and the high level of confidence between Member States upon which the European arrest warrant is based according to recital (10) of the Framework Decision and having regard to the conduct of the United Kingdom authority surrender ought to be refused
It is submitted on behalf of the appellant that by issuing the European arrest warrant on the 17th April 2007 the City of Westminster Magistrates Court failed to accord mutual recognition to the courts of Ireland and in particular to the Supreme Court. Judgment on the appellant’s appeal in relation to his Article 40.4.2 application was pending before the Supreme Court on that date and in issuing the European arrest warrant there was a breach of the principle of mutual recognition and the comity of courts. For this reason the courts of Ireland should not surrender the appellant. Further, a Magistrates Court in England has set at nought a decision of the Supreme Court by the simple expedient of withdrawing a European arrest warrant and issuing a fresh one.
This submission ignores the effect of the order of the High Court made on the European arrest warrant of the 21st June 2004 to the effect that the appellant should be surrendered. While the order for his surrender was appealed the appellant withdrew that appeal. The circumstances in which his surrender did not occur have been set out earlier in this judgment. The decision of the Supreme Court relates solely to the failure to effect the surrender of the appellant within the time limits set out in the European Arrest Warrant Acts and his release was ordered on that account: it has nothing to say as to the legality of issuing a further European arrest warrant.
The obligation of the courts under the European Arrest Warrant Acts is to surrender on foot of a European arrest warrant where there is compliance with the Acts. The Acts do not confer on the courts a general discretionary power to refuse to surrender and neither does the Framework Decision envisage such a power. It is simply not the case that the Magistrates Court in England in issuing the European arrest warrant of the 17th April 2007 in advance of the Supreme Court’s decision on the appellant’s Article 40.4.2. appeal had set the Supreme Court’s decision at nought. The Supreme Court ordered the appellant’s release as required by the European Arrest Warrant Act 2003 section 16(7) and the appellant was duly released. A fresh European arrest warrant was issued and the obligation on the courts of this jurisdiction in relation to the same is that imposed by the European Arrest Warrant Acts, that is to order surrender subject to compliance with the European Arrest Warrant Acts.
4. The underlying warrant is spent. There being no underlying warrant the European Arrest Warrant issued on the 17th April 2007 was not duly issued as required by the European Arrest Warrant Act 2003 section 10 and the appellant may not be surrendered on foot of the same.
The European Arrest Warrant Act 2003 section 10 provides as follows:-
“10. - Where a judicial authority in the issuing State duly issues a European arrest warrant in respect of a person –(a) against whom that State intends to bring proceedings for an offence to which the European arrest warrant relates,
...that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing State.”
On behalf of the appellant it is submitted that the warrant in this case was not duly issued as the underlying warrant is spent. While it may at times be necessary to consider the underlying domestic warrant in terms of the law of the issuing State in general the courts of this jurisdiction are concerned with the European arrest warrant being duly issued in accordance with the European Arrest Warrant Acts. If the European arrest warrant is in the prescribed form and contains the prescribed information this will, save in exceptional cases, be sufficient for an order of surrender to be made. It is to be assumed that the statement of facts contained in the European arrest warrant is a truthful statement of the facts in the case: Minister for Justice Equality and Law Reform v Altarvicious.
Before the learned High Court judge there were a number of affidavits as to the law of England and Wales as follows:-
1. Affidavit of Peter Caldwell, a barrister qualified in England and Wales sworn on the 30th August 2005 on behalf of the appellant.
2. Affidavit of Clive Victor Nicholls, a Queens Counsel at the Bar of England and Wales sworn on behalf of the respondent.
Both these affidavits were sworn in the proceedings relating to the European arrest warrant of the 21st June 2004.
3. Affidavit of Peter Caldwell a barrister qualified in England and Wales sworn on behalf of the respondent on the 28th November 2007.
4. Affidavit of Melanie Cumberland, a barrister qualified in England and Wales on behalf of the respondent sworn on the 21st February 2008.
5. Affidavit of Melanie Cumber, a barrister qualified in England and Wales on behalf of the respondent sworn on the 27th May 2008.
The several deponents were not cross-examined.
It is quite clear from these affidavits that there was before the learned High Court judge credible evidence upon which he could conclude that the underlying domestic warrant had not been executed and was not spent. This being so it is not the function of this court to re-try the issues of fact determined by the High Court but merely to review the evidence before the learned High Court judge in order to determine whether he erred in law in concluding that the underlying domestic warrant was not spent. This court will not review the weight of the evidence. The sole question is whether there was before the learned High Court judge evidence which entitled him to find as he did. Clearly there was such evidence. Clive Victor Nicholls Q.C. in his affidavit sets out the terms of the underlying warrant:-
“You, the constables of the Metropolitan Police are hereby required to arrest the accused and to bring the accused before the above Magistrates Court immediately.”
The warrant is not addressed to nor does it direct any other persons e.g. the Garda Siochána, to effect an arrest. On foot of the European arrest warrant of 21st June 2004 the appellant was not delivered to the Metropolitan Police and was not brought before the Magistrates Court. The domestic English warrant is not “executed” unless and until it is executed in England and Wales by the Constables of the Metropolitan Police to whom it is addressed., In the proceedings relating to the European arrest warrant of the 17th April 2007 Finlay Geoghegan J. held that the underlying domestic warrant was not spent by reason of the arrest of the appellant by the Garda Siochána under Part III of the Extradition Act 1965: the appellant’s appeal against this finding was not prosecuted. That finding was on the evidence contained in the affidavits mentioned at 1 and 2 above. The affidavits at 3, 4 and 5 above were considered by the learned trial judge in the present proceedings together with the affidavits at 1 and 2 above and on the basis of all five affidavits the conclusion he reached was that the underlying warrant was not spent by reason of the arrest of the applicant by the Garda Siochána on foot of the European arrest warrant of the 21st June 2004. That finding of fact (and foreign law is of course a fact) made by the trial judge is supported by credible evidence. The learned trial judge had before him sufficient evidence to conclude that the domestic warrant was not spent. Having carefully considered all five affidavits, had it been necessary to do so, I would have no hesitation in reaching the same conclusion.
For the reasons aforesaid the applicant fails on this ground.
Conclusion
For the reasons hereinbefore set out I would dismiss the appeal and affirm the order of the High Court.
JUDGMENT of Murray C.J. delivered on the 19th day of May 2010
I have read the judgment of Mr. Justice Finnegan. I agree with that judgment and the order he proposes, except that I wish to make some additional observations concerning s. 10 of the Act of 2003, as amended by s. 71 of the Criminal Justice (Terrorist Offences) Act 2005, and its reference to the circumstance where a judicial authority in an issuing state “duly issues a European Arrest Warrant”.
Where it is established that a judicial authority within the meaning of the Act of 2003 has in fact issued the European Arrest Warrant in question it seems to me that it should be considered to have been “duly issued” within the meaning of that section. Neither the Act nor the Framework Decision in my view can be interpreted as permitting, let alone requiring, the courts of the executing state to embark on what would be in effect a judicial review of the validity of an order of the court or judicial authority of the requesting state according to the law of that State. I do not consider that there is anything within the Framework Decision and in particular the Act of 2003 which envisages that our courts would conduct a judicial inquiry in order to determine whether as a matter of German law, French law, United Kingdom law, Latvian law, or as the case may be, a European arrest warrant produced and authenticated as having been issued by the relevant judicial authority is valid. Issues concerning the validity of an order of a court within the meaning of its own national law invariably fall to be tried and determined by the courts of that country. It would be invidious, to say the least, if the court of one country were to pass judgment on the validity of an order or act of a court in another country under the latter’s national law and set it aside as not having the effect which it purports to have on its face. Accordingly I do not consider that the use of the word “duly” in the Act of 2003 (though now removed by an amendment in the Criminal Justice (Miscellaneous Provisions) Act 2009) was ever intended to have such a meaning or effect which would require our courts, in the field of public law to exercise an unprecedented form of jurisdiction.
Of course a state may wish to provide certain safeguards so that the order of a foreign court made in respect of any individual is not automatically enforceable in every respect in its own country. Where this is done it is achieved, as is generally the case with regard to the enforcement in this State of judgments or orders of foreign courts, including the European Arrest Warrant itself, by stipulating in legislation that there are conditions or pre-conditions which must be met before an order or judgment becomes enforceable under our national law. Compliance with such conditions or pre-conditions give rise to issues separate and wholly distinct from any issue as to whether the foreign court making the order or issuing the warrant had jurisdiction to make the order or had validly done so under its own law.
It is not necessary in the present context to examine whether, in enforcing the European Arrest Warrant system, there might be some exception to this rule in egregious circumstances such as where there was some element of fraud involved in seeking the issuing of a warrant but even then that would also seem to be an issue to be addressed by the Court of the State concerned.
On the facts of this case, given that the learned High Court judge had before him a European Arrest Warrant which on its face contained the information and was in the form required by the Act of 2003 and the Framework Decision, and there being no dispute that the warrant had actually been issued by an English Court, I do not consider that it was necessary for him to go behind the warrant so as to examine the evidence of English law and the related issue. In so far as he did do so I agree with Finnegan J., that he was entitled to come to the conclusion which he did regarding the meaning and effect of English law and the validity of the warrant issued by the English Court.
