Judgment of the Court delivered by Macken J. on the 29th day of July, 2011
On the 16th December, 2010, the High Court (Peart, J.) granted an Order in favour of the respondent, pursuant to s.18 of the European Arrest Warrant Act, 2003, as amended, (“the Act of 2003”) postponing the surrender of the appellant to the United Kingdom pending the determination of certain domestic offences in respect of which the appellant has been charged. By Order dated the same day, the High Court postponed the Order for the appellant’s surrender, pursuant to s.16 of the Act, made on the 28th November, 2007, as confirmed by Order of this Court on the 3rd February, 2009, until the final determination of the charges against him, and in the event of his being sentenced to a term of imprisonment upon conviction in respect of such charges, or later, if sentenced to imprisonment.
From the determination of the High Court, and the Order made thereon, the appellant, by a Notice of Appeal dated 6th January, 2010, appealed from the same on the following grounds:
1. The learned High Court judge erred in law in determining that the surrender order granted under s.16 of the European Arrest Warrant Act, 2003 remained operative, and the learned trial judge so erred in postponing, or further postponing, the said surrender.
2. The learned High Court judge failed to have regard to the fact that the time of effecting the surrender of the appellant, prescribed by statute and by Counsel Framework Decision of the 13th June, 2002 on the European Arrest Warrant and the surrender procedures between member states had passed, or had expired, and that it was not legally possible to bring the proceedings back to life in order to grant a postponement thereof and/or to effect the surrender.
3. Without prejudice to the foregoing, the learned trial judge erred in his interpretation and construction of the terms of the postponement order granted by this honourable court on the 3rd February, 2009, which was and could only have related to the proceedings then in being and pending against the appellant before the District Court, namely, the charge preferred against the appellant on 31st January, 2009, the subject matter of charge sheet No. 8909389.
4. The learned judge failed to have regard to the express provisions of s.42 of the European Arrest Warrant Act opened in court, and failed to interpret the decision of this honourable court in that light, such that the surrender of the appellant would have been prohibited, and could not have been ordered, if the Director of Public Prosecutions was considering further charges against the appellant.
5. The learned trial judge failed to have regard to the fact that there was no proceeding then pending before the Dublin District Court, and such proceeding as had been pending before that court were no longer so pending after the 25th May, 2009. New charges were preferred on that date and the appellant was sent forward on those charges to the Central Criminal Court. The pre-existing charge, the subject matter of the order of this honourable court was struck out and was no longer pending. The postponement purportedly granted by the learned judge exclusively concerns the new charges preferred on the 25th May, 2009.
6. In all the circumstances the learned judge erred in his determination that a postponement order was not required, and further erred in ordering postponement of the surrender in respect of all charges contained in the Bill before the Central Criminal Court.
Of particular importance in the context of the appeal are the terms of the Order of this Court dated 3rd February, 2009. By that Order this Court (Murray, C.J., Geoghegan and Kearns, JJ.) directed postponement of the appellant’s surrender in the following terms:
“IT IS FURTHER ORDERED that the surrender of the respondent, John Richard Murrell, be postponed under s.18(3) of the European Arrest Warrant Act, 2003, as amended, until the date of his conviction or acquittal for the said offence of wilfully assaulting, ill-treating, neglecting, abandoning or exposing a child in a manner likely to cause unnecessary suffering contrary to s.246(1) and (2) of the Children Act, 2001 in proceedings entitled D.P.P. at the Suit of Sergeant Thomas J. Harte v. John Richard Murrell, pending before Dublin District Court, and in the event of conviction until he is no longer required to serve any part of any term of imprisonment, consequent upon said conviction”.
Background
On the 28th November, 2007, upon an application made by the respondent, pursuant to the provisions of the Act of 2003, the High Court (Peart, J.) made an order pursuant to s.16(1) thereof for the surrender of the appellant to the United Kingdom. That was in response to a European Arrest Warrant issued by the United Kingdom judicial authorities on the 27th September, 2007 in respect of offences occurring there. The precise offences are of no great significance in the context of the present appeal. The Order for his surrender to the United Kingdom was appealed by the appellant, but was affirmed by this Court on the 3rd February, 2009, when this Court also made the Order above referred to. Between the time when the appellant appealed the decision of the High Court for his surrender of the 3rd February, 2009, the appellant had, in fact, been charged, on the 31st January, 2009 in respect of an offence contrary to s.246(1) and (2) of the Children Act, 2001, which gave rise to the above postponement term being included in the Order made on the appeal.
That offence, as charged at that time, was the subject of a charge sheet bearing number 8476499. Particulars of the offence in question are recited in the following terms:
“On a date unknown between 19/05/2006 and 28/09/2007 at a place or places unknown within the State in the [sic] being a person having custody/charge/care of a child, namely, S.A.M., did wilfully assault, ill-treat, neglect, abandon, expose the said child in a manner to cause unnecessary suffering to the child’s health, or seriously to affect her wellbeing, contrary to s.246(1) and (2) of the Children Act, 2001”.
Sometime after the above events, on the 27th May, 2009, the appellant was faced with new charges. On the same day, the above charge sheet was struck out, but was substituted immediately by charge sheet No. 8907492 relating to the same offence but with some minor changes to better particularise the same. The offence was now stated to have occurred “between 01/12/2006 and 28/09/2009” (which should in fact be 2007, as is agreed) in comparison to the broader date provided for in the first charge sheet. The second difference is that instead of stating that the offence occurred “at a place or places unknown”, it is stated that the offence had occurred “at Athy Kildare”. The additional charges preferred against the appellant on the same day were of a serious nature, also under the Children Act and other legislation, the details of which it is not necessary to consider in the course of this judgment.
On the 3rd November, 2009 an application was made to the High Court (Peart, J.) for postponement of his surrender. There is a dispute concerning the extent of the application made for postponement, the appellant saying it arose from all six extant charges, the respondent arguing it only was in reliance on the five new charges. This will be dealt with in when considering the argument of the parties, and my conclusions. The application was acceded to. It is from the Order of the 16th December, 2009 that this appeal lies.
The Judgment of the High Court
Having heard the parties on the 3rd November, 2009, the High Court (Peart, J.) delivered judgment on the 16th December, 2009. Having set out the terms of the postponement granted by order of this Court on the 3rd February, 2009, the learned High Court judge considered the question of the charge sheet, its replacement and the impact of these on the application being made. He found that while the charge sheet was struck out at the District Court on the 27th May, 2009, it was immediately replaced by another charge sheet in respect of the same offence, and noted the refinement of the particulars. He took the view that the striking out of the earlier charge sheet did not amount to an acquittal in respect of that offence, and in that regard accepted what was said by McGuinness, J., in her judgment in Kennelly v. Cronin [2002] 4 IR 292. The learned High Court judge found that Kennelly v. Cronin, supra., is not, however, authority for the proposition, made on behalf of the appellant, that the striking out of the original charge sheet was a disposal of that case, in the sense of being an acquittal in respect of the offence (murder) in question. He considered that, in the same way in the present case, the fact that the first charge sheet was struck out on the 27th May, 2009 did not operate as an acquittal. In the circumstances, the Supreme Court’s postponement order of the 3rd February, 2009 did not lapse, or cease to operate, and the order for postponement of his surrender still applied to the appellant. The learned High Court judge also found that, strictly speaking, it was unnecessary for any further postponement order to be obtained in respect of the new offences, the subject of the struck out charge sheet, but no reason existed why such a postponement order could not be made. In the circumstances, he made the order pursuant to s.18 of the Act for the postponement of the surrender of the appellant.
The Arguments on the Appeal
Mr. Peart, senior counsel on behalf of the appellant, argues that the learned High Court judge was wrong in law in his findings. He relies very much on the same arguments as were put forward in the High Court by Mr. Kelly, junior counsel then acting on behalf of the appellant. In essence, what is argued is that, relying on the case of Kennelly v. Cronin, supra., and having regard to the terms of the order of the Supreme Court of the 3rd February, 2009, the only proceedings “pending before the District Court” on that date were those contained in charge sheet No. 8476499, being the charge sheet reflecting the offence as originally charged. Although a “strike out” of that charge sheet is not expressly referred to in the Supreme Court order cited above, the true purport of the respondent’s application on the 3rd February, 2009, and the clear intention of this Court, was to postpone the appellant’s surrender until the conclusion of the only District Court proceedings then pending, pursuant to that specific charge sheet, and, in the event of a conviction, until the conclusion of any prison sentence that might flow from it. It is said that an interpretation in accordance with the intention of this Court, as contended for, and which it is said is in conformity with Article 24 of the Framework Decision, makes it clear that the postponement is operative only until the “disposal” of those pending proceedings, which had occurred.
Based on the decision in Kennelly v. Cronin, supra., Mr. Peart argues that the striking out of the charge sheet is “a due disposal of the charge against the appellant according to law”, within the true meaning of the order of this Court. Further, it is said that the subsequent history of the application supports this approach. Since it is clear that the respondent sought a further postponement, not only of the new charges, but also of the charge in issue, the subject matter of a substituted charge sheet, this latter further postponement would not have been necessary, unless the respondent was himself satisfied that the offence appearing on the new charge sheet was, in reality, a fresh offence, and that the striking out of the charge on the earlier charge sheet was a disposal in law.
Furthermore, it must be the case that the Director of Public Prosecutions was, at the time this Court had seizin of the appellant’s surrender proceedings in February, 2009, considering whether to charge the appellant with further offences, in circumstances where s.42 of the Act of 2003 became applicable, and according to which the Act specifically prohibits surrender. If this Court had been made aware, on the 31st January, 2009, that the Director was considering further charges against the appellant, it is highly unlikely that surrender would have been permitted at all, and no postponement order would have been made. In the foregoing circumstances, the appellant should not have been the subject of an affirmed Order for his surrender by this Court on the 3rd February, 2009, having regard to the s.42 argument. In such circumstances, there was no proper basis for the postponement of the appellant’s surrender, the postponement has, in fact, lapsed, and the appellant should have been surrendered to the United Kingdom at the latest by the 7th June, 2009. The learned High Court judge was wrong to conclude by his judgment of the 16th December, 2009, that postponement was proper.
For the respondent, the entire of the foregoing arguments are challenged. According to the written submissions, the respondent applied to the learned High Court judge to extend the order of postponement to include all offences, the Court stating that it was not required to make any further order in respect of the offence specified in the order of this Court of the 3rd February, 2009, and the order of postponement granted by the High Court on the 16th December, 2009 extended to those other offences. In the course of the hearing before this Court, Mr. Barron, senior counsel for the respondent, clarified that, in fact, no application was made to the High Court to further postpone or extend the order of the 3rd February, 2009 to the offence originally charged, as struck out and substituted on the 27th May, 2009. He asked that the Court accept the transcript of the hearing of the 3rd November, 2009 in support of his contention that the application made was in respect only of the new offences.
Apart from that preliminary matter, Mr. Barron argues that the postponement order of the 3rd February, 2009 was referable to a specified offence, which is clear from the charge sheet. Order 17 of the District Court Rules, 1997, Rule 1, provides:
“Whenever a person is arrested and brought to a Garda Siochana Station and is being charged with an offence, or where an offence is alleged against a person who is already on remand to the Court and a summons in respect of the offence is not issued, particulars of the offence alleged against that person shall be set out on a charge sheet.”
The status of a charge sheet is considered in the case of Attorney General (McDonnell) v. Higgins [1964] I.R. 374, in which it was stated:
“The charge sheet on which it (a complaint or information) is entered initiates as a purely police document and the entry of the offences charged is necessary for the protection of the Garda to show that such offences justify arrest and detention in the barracks without warrant.”
Further, the question of what is meant by “offence” in the context of the European Arrest Warrant Act, 2003, has been determined in Minister for Justice v. S.M.R. [2007] IESC 54, where it was held by this Court that the offence refers to the generic offence with which a person is charged, and that the same meaning must be given to the word throughout the Act, unless the contrary appears from the context.
Having regard to the foregoing, it is submitted that this Court, in its order of the 3rd February, 2009, unequivocally refers to an offence contrary to s.246(1) & (2) of the Children Act, 2001, and specifies the particular events which could trigger the end of the postponement, being either acquittal or conviction. The order is not framed, and correctly so, by reference to any particular charge sheet.
As to the contention put forward on behalf of the appellant, that the striking out of the charge sheet is one which leads to the determination or disposal of the proceedings, counsel argues that such a contention cannot properly flow from the judgment in Kennelly v. Cronin, supra., which made it clear that the striking out of the original charge, even in that case, was not “a disposal” (as the learned High Court judge in this case had also pointed out).
Mr. Barron also draws the Court’s attention to the rule against double jeopardy as being of assistance in assessing the appellant’s submissions that the mere striking out of the charge sheet is, in effect, “a disposal” of an offence. A person cannot be tried for an offence for which they have already been acquitted or convicted, and if, therefore, a strike out of the charge on the charge sheet amounts to an acquittal, the prosecution would be precluded in the future from recharging the accused with the same offence. Upon the strike out of the charge sheet, the appellant was recharged with the same offence on a separate charge sheet. Counsel draws the Court’s attention to the decision of the High Court in Dunne v. Governor of Cloverhill Prison [2008] IECH 1, arising from the striking out of a charge in circumstances where there was a failure to serve the Book of Evidence in good time. This decision makes it clear that even if an accused in such circumstances is “at liberty”, the striking out does not preclude the appellant being proceeded against afresh, and to another case, Carpenter v. Kirby [1990] I.L.R.M. 794, in which the High Court considered the entitlement of the Director of Public Prosecutions to recharge an accused with the same offence, having previously withdrawn a charge due to perceived deficiencies in its wording, the High Court (Barr, J.) stating that “although the order had been made, the Director was entitled to recharge the applicant with the same offence”.
Finally, as to s.42 of the Act of 2003 is concerned, the respondent contends that it has no bearing on the proceedings. Insofar as a charge had been laid against the appellant on the 31st January, 2009, the section has no effect, since the charge already existed. Insofar as concerns the charges laid on the 27th May, 2009, there is no factual basis for the appellant’s contention that the Director of Public Prosecutions was, or might have been, considering those, or any, further charges against the appellant on the relevant date, namely, 3rd February, 2009.
Conclusion
The Postponement Issue
It seems to the Court that the starting point for a proper consideration of the legal issues which arise for consideration in this case, is Article 24 of the Framework Decision, which forms an Annex to the Act of 2003.
Article 24(1) states:
“The executing judicial authority may, after deciding to execute the European arrest warrant, postpone the surrender of the requested person so that he or she may be prosecuted in the executing Member State or, if he or she has already been sentenced, so that he or she may serve, in its territory, a sentence passed for an act other than that referred to in the European arrest warrant.”
By the provisions of Article 24(2), instead of postponing the surrender, the judicial authority may temporarily surrender the requested person to the issuing Member State, on agreement between the two states, made in writing, and subject to binding conditions on the issuing Member State.
The terms of Article 24 of the Framework Decision are transposed into Irish law by the clear provisions of s. 18 of the Act of 2003. The provisions of that section, mirroring as they do the provisions of Article 24 make clear that the appellant was properly postponed as to his surrender, provided that there were charges against him in being at the time when the postponement order was made. The logic of this provision is unassailable. It would be quite extraordinary if, instead of facing charges in the requested State, a person the subject of a surrender order, would first have to be surrendered to the requesting State, since it would follow inexorably that the requested State would thereafter have to set in train a later application for his surrender, to take effect at the end of any judicial proceedings, or service of a sentence, in the issuing State, thereby doubling the time, effort and expenditure in regularising the charging and disposal of criminal offences in more than one jurisdiction.
True it is that the Framework Decision permits an alternative by Article 24(2), but it seems clear to me that this is so as to provide for the exceptional or unusual case in which it is considered appropriate or necessary not to postpone surrender.
I am satisfied therefore there was, in principle, no difficulty in the learned High Court judge postponing the surrender of the appellant until after the charges – assuming they were extant – were disposed of by acquittal or conviction, and in the case of conviction, until after service of any sentence.
Whether there were extant charges
There are two issues for determination under this heading:
The chronology of events is as follows:
27th September 2007 European arrest warrant issued.
28th September 2007 Appellant arrested.
28th November 2007 High Court Surrender Order.
13th January 2009 Supreme Court Appeal Hearing.
31st January 2009 Domestic charge preferred.
3rd February 2009 Supreme Court Judgement.
3rd February 2009 Postponement of Surrender Order.
27th May 2009 Pending domestic charge struck out and replaced by
a new charge.
27th May 2009 Additional charges preferred.
7th June 2009 Possible expiry of 10 day time limit for surrender.
3rd November 2009 Further application for postponement.
16th December 2009 Postponement granted.
The sequence is clear. The appellant was originally arrested on the European arrest warrant on the 28th September 2007, and was ordered to be surrendered on the 28th November 2007. He appealed that order to this Court. On the 31st January 2009 he was charged with an offence in this jurisdiction, to which I will refer in a moment in more detail. Because he was facing a charge for that offence, this Court postponed his surrender, pursuant to s.18 of the Act of 2003. The terms of the Order of this Court made on the 3rd February, 2009 postponing his surrender have already been set out.
A few months later, on the 27th May 2009 the appellant was charged with five further offences. In relation to the then extant charge, this was struck out on that date and a fresh charge laid immediately. That charge was in respect of an offence contrary to s.246(1) and (2) of the Children Act 2001, which was exactly the same offence, save that there was some greater particularity in the second charge sheet, as already explained. The appellant did not at any time suggest to this Court that both charge sheets did not relate to the same offence, under the same provisions of the above Act
The appellant’s only objection is based on the following proposition: when the first charge sheet in respect of the offence was struck out at the District Court on the 27th May 2009, this constituted a formal “disposal” of the charge. In consequence, the postponement order of the 3rd February 2009 came to an end, in light of its terms. In turn, the latest date by which the appellant could have been lawfully surrendered, was ten days after the 27th May 2009, and the surrender order, not having been executed within the time limited by the Act, namely prior to the 7th June 2009, thereupon lapsed.
The legal basis for the Appellant’s argument is founded entirely on the proposition that, in law, the charge in the District Court was “disposed of”, and that sufficed to conclude that there was no longer any charge before the Supreme Court, within the terms of its order of the 3rd February, 2009. Mr. Peart makes a strong and eloquent argument on that point, on the basis it is said, of the judgment of McGuinness, J. in Kennelly v. Cronin, supra. He contends that the striking out of the relevant charge against the appellant on 27th May 2009 amounted to “a due disposal of the charges against him according to law”. With respect, I cannot find any support for the argument that a charge or charge sheet which has been struck out and immediately thereafter substituted by a new charge sheet in respect of the same offence – precisely the same offence – can, under the circumstances of this appeal, constitutes “a determination” of the offence against an accused, or even “a disposal” of the charge. That is what the appellant asks this Court to accept.
The postponement order of this Court of the 3rd February, 2010 is worded so as to survive until the “acquittal or conviction” of the Appellant in respect of the stated offence. The postponement of the original surrender remained extant where the offence was the subject of an immediately substituted charge sheet in the District Court, unless the appellant can establish that he was otherwise acquitted of the offence.
It seems to me that the starting point is to consider the terms of the Order itself. By the Order of the 3rd February, 2009 this Court:
(a) Postponed the surrender pursuant to s.18(3) of the Act of 2003 on terms;
(b) The terms were:
(i) The postponement would endure until the date of his conviction or acquittal;
(ii) of an offence of wilfully assaulting, ill-treating, neglecting, abandoning or exposing a child, etc., contrary to s.246(1)(2) of the Children Act, 2001;
(iii) in proceedings entitled DPP at the suit of Sergeant Thomas J. Harte v. John Richard Murrell;
(iv) pending before Dublin District Court;
(iv) and would further endure, in the event of conviction, until he is no longer required to serve any part of any term of imprisonment.
At the date of the making of that order, and subsequently, until the High Court postponement proceedings, and subsequently again, the appellant was:
(a) Charged with an offence under the above sections of the Children Act, 2001;
(b) in proceedings brought by the DPP at the suit of Sergeant Thomas J. Harte, against the appellant;
(c) pending before the District Court;
(d) the date of his conviction or acquittal of the said offence had not been reached.
I am satisfied that, without going further, the postponement by the High Court on the 16th December, 2009 of the appellant’s surrender was wholly lawful, and was fully within the ambit of the above Order.
The only remaining issue, therefore, which requires to be considered is whether or not the acts which took place, and the Orders which were made on the 27th May, 2009 affected the above position. For the reasons which I now set out, I am satisfied that nothing which occurred on that date, or subsequently, affected the terms of the above Order, or indeed the status of the appellant and the above offence with which he was charged. On the 27th May, 2009 a series of further charges (including more serious charges, although this does not affect the outcome of this appeal) were laid against the appellant. The extant offence described above was the subject matter of a specific charge sheet. This is, as is clear from Attorney General (McDonnell) v. Higgins, supra., is an administrative document, or “a purely police document”, as described in that case, used for the purposes of ensuring that appropriate procedures are in place to justify arrest and detention. As the learned High Court judge pointed out, the particulars of the same offence, in respect of which the appellant was charged, were more precise and slightly more limited, it not being necessary to cite again the manner in which this was evidenced by the second charge sheet The existence of a particularly numbered charge sheet on which details of the offence are recorded does not merge with the offence itself, and the substitution of a charge sheet by another charge sheet, recording the charge for the same offence, cannot bring to an end the offence the subject of an earlier charge sheet. On the 27th May, 2009 the charge as recorded on the first charge sheet was struck out, and immediately substituted, or replaced, by a charge sheet in respect of precisely the same offence, carrying a different charge sheet number. The striking out and immediate replacement of one charge sheet with another, recording precisely the same offence against the appellant, is neither an acquittal nor a conviction, nor does it constitute any other form of “disposal” of an offence with which the appellant had been charged. That is so when considering either the general law, or the terms of this Court’s Order of the 3rd February, 2009.
Mr. Peart, on behalf of the appellant, however, invokes in support of his argument, not an argument that the events which occurred on the 27th May, 2009 constituted either a conviction or acquittal – the conditions specifically mentioned in this Court’s Order of the 3rd February, 2009 – but rather contends that the events nevertheless constitute “a disposal” of the charge for the purposes of the general law. I take it that when speaking about “a disposal of the charge” counsel is contending that the offence was disposed of finally by the District Court on the 27th May, 2009. I consider this argument to be unsustainable, notwithstanding the invocation by Mr. Peart of Kennelly v. Cronin, supra. The decision in that case arose pursuant to a case stated from the Circuit Court to this Court for its opinion as to:
A third question arose in respect of non-notification to other bailpersons, which does not require to be considered in the present appeal, save in one respect. In this Court it was determined, unanimously, that the recognisances of the respondent expired when the District Court judge struck out the charge sheet. The first thing to be said about the case is that it arose peculiarly and specifically in the context of a bail application, where bail having existed, and recognisance having been entered, the charge sheet was struck out. The primary requirement of the recognisance entered was that the person “going bail” would appear before the court in question on a specific date, and indeed on any adjournment, “until his presence is no longer required”. Once the order striking out the charge was made, the presence of that bail person was no longer required and he/she was free to leave, the duty of the bail person having been discharged.
In Kennelly v. Cronin, supra., the District Court judge, in accordance with a previous warning, and in the face of the continued absence of the book of evidence, struck out the charges against the accused, who was then free to go. On this event, the recognisances entered into by the bailpersons expired, and they were no longer bound by them. Later, in the same day, however, the accused was re-arrested at his home on new charges relating to the same offences, and brought before the District Court. The District Court judge re-entered the charge. Nothing in this Court’s decision in Kennelly v. Cronin, supra., suggests, intimates, or in any way can be understood as indicative of the accused having been acquitted of the charge which he was facing under the first charge sheet by the fact that it was struck out in the apparent absence (although incorrect, in fact) of the book of evidence. The most that is said in the judgment of McGuinness, J., in relation to the foregoing events is that “the re-entry of the charge was a fresh step by the court which brought about a new situation”. All that was, of course, in the context of whether or not bailpersons were bound by the subsequent re-entry of the charge, under the bail terms relating to the charge as originally laid.
I can find nothing in the judgment of McGuinness, J. to support the contention that anything akin to a final determination of the offence is to be found in her judgment. The position is very simply and clearly put by Geoghegan, J., in his concurring judgment, in which, arising from the above facts, he states “the first respondent was brought back into the court on foot of an arrest for the purposes of a new criminal proceeding in relation to the same charge. The only real question which can arise in this case is whether on a revival of the original proceeding, a recognizance can continue”. (emphasis added). In respect of the bailpersons who had not been present in the court, and therefore who had not expressly agreed to the reinstatement of the original charge, he found that, had they been present “I think that they would have continued to be bound by their recognizances as they would have acknowledged that the proceeding was not finally disposed of” (emphasis added). I am satisfied that this was a correct classification of the status of the proceedings real issue, as pointed by Geoghegan, J., and also by Fennelly, J., being that the second and third bailpersons, who had not been in court to hear what was going on, were entitled to be heard.
Nothing in the judgments in this Court in Kennelly v. Cronin, supra., can be taken to support the argument adduced on behalf of the appellant, that on the 27th May, 2009 the striking out of the charge sheet, or even of the charge, constituted a “disposal” of the offence with which he was charged. Nothing in the events which occurred by the striking out, and immediate replacement, of the struck out charge sheet with a fresh charge sheet, could be taken as escaping the terms of the Order of this Court of the 3rd February, 2009. The terms of the Order of that date continued to bind the appellant in respect of the offence, the subject matter of the replacement charge sheet. I disagree entirely with the suggestion that the Order should be understood as referring, in reality, only to the disposal of the particular charge on the particularly numbered charge sheet which was struck out, on the grounds it is said, that this was the only charge “pending” before the District Court. This is against the plain wording of the Order. While that was the only charge pending, it was not the appellant’s acquittal or conviction for the offence represented on the charge sheet which the Order circumscribed.
This ground of appeal cannot succeed.
The next issue to be considered is the appellant’s argument that, on the application made on the 3rd February, 2009 for the postponement of surrender, the subject matter of the judgment leading to this appeal, the respondent himself accepted that the offence was disposed of by the striking out of the charge on the 27th May, 2009. This argument arises because it is the appellant’s contention that on the 3rd November, 2009, when the application for the postponement was made, it was made in respect of all six charges, that is to say, the five additional charges which came before the Court on the 27th May, 2009, as well as the offence the subject of the replacement charge sheet of the same date. The argument appears to be that since an application was made for postponement of surrender in respect of all six charges appearing on the respective charge sheets, this affects their legal status. This is a point not explored to any extent in the written submissions filed on behalf of the appellant, but, in any event, it is countered by the respondent’s argument, supported by the transcript of the hearing before the High Court on the 3rd November, 2009, that only the additional charges were the subject matter of an application for a further postponement. It was acknowledged by the respondent that this was, strictly speaking, not necessary, since the extant postponement, the subject of this Court’s Order of the 3rd November, 2009, survived at least until conviction or acquittal of that offence which order would likely be sufficient to endure to conviction or acquittal on any of the other five offences also.
I am satisfied that there is no legal basis upon which the appellant, quite apart from my above findings, can rely on the application made on the 3rd November, 2009 to support his contention that the respondent considered that the earlier postponement could not, in law, continue upon the striking out of the charge, or charge sheet, on the 27th May, 2009. Whether or not the respondent was of that opinion, it is a question of law as to whether or not the Order of this Court of the 3rd February, 2009 continued, which, in turn, depends on whether or not there was a formal and final disposal of the offence by acquittal or conviction. Since I have already found that there was no formal disposal of the charges, and, therefore, certainly no conviction or acquittal, the respondent’s subjective opinion is of no relevance. In any event, I do not consider, having regard to the transcript, which both parties agreed should be before the Court, that the respondent was, in fact, of that opinion. Counsel’s submissions appearing on the transcript make it clear that the respondent contended for the continuance of this Court’s Order, and was seeking, as a matter of precaution, a postponement of surrender on the charge appearing on the European Arrest Warrant, pending the determination of the five other charges laid on the 27th May, 2009.
In the circumstances, this ground of appeal cannot succeed.
The s.42 Issue
Finally, there is the applicant’s argument that on the events which occurred, and the date sequence in particular, the charging of the appellant on the 31st January, 2009, a few days prior to the date of this Court’s Order of the 3rd February, 2009, and his subsequent charging on the 27th May, 2009 on further charges, lead inevitably to the conclusion that the respondent must have had an intention on the 3rd February, 2009, at least, of charging the appellant with some, or those further offences. If that were the case, it is argued, s.42 of the European Arrest Warrant Act comes into play.
Counsel for the respondent contends that s.42(a) cannot apply to the first offence as the appellant was already charged and submits that there is no evidence that the Director of Public Prosecutions, on the 3rd February, 2009, was considering any other offences.
Conclusion
Section 42 of the Act is in the following terms:
“A person shall not be surrendered under this Act if –
(a) the Director of Public Prosecutions or the Attorney General is considering, but has not yet decided, whether to bring proceedings against the person for an offence,
…”
This section of the Act speaks for itself.
Clearly, as the respondent contends, this section cannot apply to the offence in respect of which the appellant was charged on the 31st January, 2009, but could only apply, if at all, to the offences with which he was charged on the 27th May, 2009, several months later.
Without having to consider in any detail the arguments made in respect of this ground of appeal, it seems to me it can be disposed of very simply. If there were any basis, in fact, upon which the appellant could suggest that the Director of Public Prosecutions had in mind, or was considering, further proceedings against the appellant, it seems unlikely that the appellant would have no indication whatsoever of the same, but rather on appearing in court on the 27th May, 2009, was suddenly faced with five additional offences, of which neither he nor his legal advisers had the slightest indication. This may be the case, but if it were so it seems clear that the appellant would have sworn to the same or, in the alternative, would have addressed the same in submissions made to the High Court, whether written or oral. There is not the slightest indication that the fresh charges being laid against the appellant on the 27th May, 2009 were a complete and utter surprise to him. Nor is there any evidence, or factual matters from which it could be implied, that prior to the 31st January, 2009, or the 3rd February, 2009, when the appeal against his surrender was finally disposed of by this Court, that any consideration was being given by the Director of Public Prosecutions to any further charges being laid against the appellant. In the circumstances, there is no basis upon which this ground, pursuant to s.42(a), can be sustained.
Having regard to the foregoing, I would dismiss the appeal and affirm the Order of the High Court.
