Judgment of Mr Justice Finnegan delivered on the 11th day of February 2011
By a European arrest warrant dated 20th November 2007 the United Kingdom sought the appellant’s surrender for the purposes of his being charged with an offence of rape the allegation being that on the 13th October 2002 within the United Kingdom he raped one Ashley Carr. By order of the High Court of the 16th January 2008 it was ordered that the appellant be surrendered. On the 3rd June 2008 the appellant pleaded guilty in the United Kingdom to that offence and was sentenced to a term of imprisonment of nine years.
On the 17th June 1983 the appellant was acquitted at Newcastle-Upon-Tyne Crown Court of an offence of rape. Particulars of the alleged offence (hereinafter “the offence”) were that on the 17th December 1982 the respondent had raped his maternal grandmother Jennifer Anderson. Forensic samples taken at that time were re-examined during 2005 and 2006 and in consequence the prosecuting authorities decided to seek to avail of a statutory entitlement to have the appellant’s acquittal quashed and a re-trial ordered. For that purpose the consent of the High Court pursuant to section 22 of the European Arrest Warrant Act 2003 as substituted by the Criminal Justice (Terrorist Offences) Act 2005 section 80 was sought from the High Court. By order dated the 25th March 2010 the High Court (Peart J.) gave consent pursuant to section 22(7) aforesaid to proceedings for the offence of rape alleged to have been committed by the respondent on the 17th December 1982. From that order the appellant appeals to this court. The issue which arises on the appeal is whether the order of acquittal of the 17th June 1983 is a final judgment within the meaning of section 41 of the European Arrest Warrant Act 2003.
Proceedings in the United Kingdom
The United Kingdom Criminal Justice Act 2003 section 76(1) provides as follows:-
The Chief Crown Prosecutor for North Cumbria, United Kingdom, with the consent of the Director of Public Prosecutions applied to the Court of Appeal of England and Wales (hereinafter “the Court of Appeal”) for an order pursuant to section 76(1) for the offence on the basis that there is new and compelling evidence that the appellant is guilty of the offence and that it is in the public interest that the application should proceed. The Court of Appeal delivered judgment on the application on the 25th June 2009. The court was satisfied that in the light of evidence which was not available at the original trial there is now new and compelling evidence and that the interests of justice require that the acquittal should be quashed and a new trial ordered. The court went on to consider the implications of the rule of specialty in that the offence is a wholly different offence to that for which the appellant was surrendered to the United Kingdom. The court was unwilling to make the order sought on the basis of an undertaking by the prosecution not to proceed further with the prosecution of the appellant for the offence unless and until the High Court of Ireland consented to the appellant’s prosecution. An alternative that an indictment might be preferred only after the consent of the High Court in Ireland was given likewise did not find favour with the court. As section 76(5) prohibits a second application to quash an acquittal the Court of Appeal adjourned the application to enable the prosecution, if it thought fit, to bring an application to the High Court for consent to the respondent being proceeded against for the offence.
The appellant’s submissions rely upon a number of matters which appear from the judgment of the Court of Appeal.
The Legislative Framework
The Framework Decision of 13th June 2002 provides in Article 3 as follows:-
“Article 3
Grounds for Mandatory Non-Execution of the European arrest warrant.
The judicial authority of the Member State of execution (hereinafter “executing judicial authority”) shall refuse to execute the European arrest warrant in the following cases:
1. if the offence on which the arrest warrant is based is covered by amnesty in the executing Member State, where that State had jurisdiction to prosecute the offence under its own criminal law;
2. if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same Acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State;
3. if the person who is the subject of the European arrest warrant may not, owing to his age, be held criminally responsible for the Acts on which the arrest warrant is based under the law of the executing State.”
For the purposes of this appeal Article 3.2 is the relevant provision. Article 3.2 was transposed into Irish law by section 41 of the European Arrest Warrant Act 2003 which provides as follows:-
“41(1) A person shall not be surrendered under this Act for the purpose of his or her being proceeded against in the issuing state for an offence consisting of an act or omission that constitutes in whole or in part an offence in respect of which final judgment has been given in the State or a Member State.”
The rule of specialty is dealt with in section 22 of the European Arrest Warrant Act 2003 as substituted by section 80 of the Criminal Justice (Terrorist Offences) Act 2005. Section 22 as substituted provides as follows:-
“22(1) In this section, except where the context otherwise requires, ‘offence’ means, in relation to a person to whom a European arrest warrant applies, an offence (other than offence specified in the European arrest warrant in respect of which the person’s surrender is ordered under this Act) under the law of the issuing state committed before the person’s surrender, but shall not include an offence consisting, in whole, of acts or omissions of which the offence specified in the European arrest warrant consists in whole or in part.
(2) Subject to this section the High Court shall refuse to surrender a person under this Act if it is satisfied –
(a) the law of the issuing state does not provide that a person who is surrendered to it pursuant to a European arrest warrant shall not be proceeded against, sentenced or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence, and
(b) the person will be proceeded against, sentenced, or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence.
(3) It shall be presumed that, in relation to a person to whom a European arrest warrant applies, the issuing state does not intend to-
(a) proceed against him or her,
(b) sentence or detain him or her for a purpose referred to in subsection (2)(a), or
(c) otherwise restrict him or her in his or her personal liberty,
in respect of an offence, unless the contrary is proved.
(4) The surrender of a person under this Act shall not be refused under subsection (2) if-
(a) upon conviction in respect of the offence concerned he or she is not liable to a term of imprisonment or detention, or
(b) the High Court is satisfied that, where upon such conviction he or she is liable to a term of imprisonment or detention and such other penalty as does not involve a restriction of his or her personal liberty, the said other penalty only will be imposed if he or she is convicted of the offence.
(5) The surrender of a person under this Act shall not be refused under subsection (2) if it is intended to impose in the issuing state a penalty (other than a penalty consisting of a restriction of the person’s liberty) including a financial penalty in respect of an offence of which the person claimed has been convicted, notwithstanding that where such person fails or refuses to pay the penalty concerned (or, in the case of a penalty that is not a financial penalty, fails or refuses to submit to any measure or comply with any requirements of which the penalty consists) he or she may under the law of the issuing state be detained or otherwise deprived of his or her personal liberty.
(6) The surrender of a person under this Act shall not be refused under subsection (2) if the High Court –
(a) is satisfied that -
(i) proceedings will not be brought against the person in respect of an offence,
(ii) a penalty will not be imposed on the person in respect of an offence, and
(iii) the person will not be detained or otherwise restricted in his or her personal liberty for the purposes of an offence,
without the issuing judicial authority first obtaining the consent thereto of the High Court,
(b) is satisfied that -
(i) the person consents to being surrendered under section 15,
(ii) at the time of so consenting he or she consented to being so proceeded against, to such a penalty being imposed, or being so detained or restricted in his or her personal liberty, and was aware of the consequences of his or her so consenting, and
(iii) the person obtained or was afforded the opportunity of obtaining, or being provided with, professional legal advice in relation to the matters to which this section relates,
(c) is satisfied that-
except where having been so discharged he or she leaves the issuing state and later returns thereto (whether during that period or later), or
(d) is satisfied that such proceedings will not be brought, such penalty will not be imposed and the person will not be so detained or restricted in his or her personal liberty unless -
(i) the person voluntarily gives his or her consent to being so proceeded against, such a penalty being imposed, or being so detained or restricted in his or her personal liberty, and is fully aware of the consequences of so doing,
(ii) that consent is given before the competent judicial authority in the issuing state, and
(iii) the person obtains or is afforded the opportunity of obtaining, or being provided with, professional legal advice in the issuing state in relation to the matters to which this section relates before he or she gives that consent.
(7) The High Court may, in relation to a person who has been surrendered to an issuing state under this Act, consent to -
(a) proceedings being brought against the person in the issuing state for an offence,
(b) the imposition in the issuing state of a penalty, including a penalty consisting of a restriction of the person’s liberty, in respect of an offence, or
(c) proceedings being brought against, or the detention of, the person in the issuing state for the purpose of executing a sentence or order of detention in respect of an offence, upon receiving a request in writing from the issuing state in that behalf.
(8) The High Court shall not give its consent under subsection (7) if the offence concerned is an offence for which a person could not by virtue of Part 3 or the Framework Decision (including the recitals thereto) be surrendered under this Act.”
Proceedings in the High Court
For the appellant it was submitted that as long as the acquittal of the appellant subsists it must be seen as a final judgment and accordingly there was no jurisdiction to consent to the prosecution of the appellant for the offence. On the application to the Court of Appeal the prosecution had accepted that the acquittal is a final order for all purposes. It was submitted that the Court of Appeal had accepted the acquittal as a final judgment for the purposes of the High Court of Ireland. Apart from Section 76(1) of the Criminal Justice Act 2003 any acquittal in the courts of the United Kingdom would prevent a re-trial for the same offence and as no order under section 76(1) has been made quashing the acquittal the acquittal remains a final judgment.
The respondent relied upon a number of decisions of the Court of Justice of the European Communities which concerned the Schengen Agreement dealing with the provisions of Article 54 of the Convention implementing the Schengen Agreement between a number of Member States and which provides as follows:-
“54. A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.”
The cases were relied upon as disclosing differences between the common law concepts of double jeopardy and autrefois acquit on the one hand and the civil law concept of ne bis in idem. Having regard to these cases it was submitted that Article 3.2 of the Framework Decision and Article 41 of the European Arrest Warrant Act 2003 did not prevent a person from being prosecuted for a second time in the same state but rather his being prosecuted for the same offence in another Member State. Accordingly, it was submitted, that it was unnecessary for the court to decide whether the acquittal on the offence is a final judgment. As to whether the order is a final judgment it was submitted that the principle of double jeopardy never prevented a person from being retried for an offence following the quashing of a conviction and now, following an acquittal pursuant to Part 3 of the Criminal Procedure Act 2010, a retrial is permitted in this jurisdiction; acquittal is no longer a final judgment.
The learned trial judge held that while the acquittal could be said to be within the phrases “finally judged” or “final judgment” that is not the end of the matter. Section 41 of the Act required to be construed in conformity with the aims and objectives of the framework decision under the principles of conforming interpretation stated by the European Court of Justice in the Pupino case C-105/03. He held that, so construing section 41, where it was clear that a retrial would not take place until the earlier acquittal had been quashed and a retrial ordered, and having regard to the principle of mutual recognition of judicial decisions and mutual trust of the legal systems of other Member States, it is in accordance with the objectives of the Framework Decision that the appellant be surrendered. Once a judgment, whether of conviction or acquittal, is quashed no question of double jeopardy arises. The judgment of acquittal was never a final judgment in the sense that it could never be set aside. A judgment could be set aside on appeal in the case of conviction or on an application pursuant to the United Kingdom Criminal Justice Act 2003 section 76(1) in the case of an acquittal. It is appropriate to interpret “final judgement” in section 41 as not including a judgment of acquittal which can be quashed by a prosecutor’s appeal particularly where the Court of Appeal has indicated that it will quash the acquittal and order a retrial if the consent of the High Court is forthcoming.
Discussion
The appeal to this court concerns the meaning of “finally judged” in Article 3.2 of the Framework Decision and of “final judgment” in section 41(2) of the European Arrest Warrant Act 2003. In our jurisprudence a judgment or order which determines the matter in issue in proceedings is termed “final”. It is final in distinction to interlocutory: however some interlocutory orders may themselves be final where they deal conclusively with the subordinate matter in issue. A judgment is nonetheless final notwithstanding that it is subject to appeal: see Wylie, Judicature Acts at p.795, Pheysey v Pheysey 12 Ch. D.305, McKinney (Inspector of Taxes) v Hagan’s’ Caravans (Manufacturing) Limited [1997] N.I. 111. In this sense the judgment of acquittal with which this court is concerned is a final judgment.
The court in interpreting the provisions of the European Arrest Warrant Act 2003 as amended must do so, so far as possible in the light of and so as not to be in conflict with the provisions of the Framework Decision: Criminal proceedings against Pupino [2005] E.C.R. 1-5285. The starting point for any interpretation accordingly is the recitals in the Framework Decision. The following recitals are relevant:-
“Recital (5)…traditional co-operation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.
Recital (6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the “cornerstone” of judicial co-operation.
Recital (10) The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof. “
Underlying the Framework Decision is the objective of establishing a system of free movement of judicial decisions in criminal matters within an area of freedom, security and justice, the mutual recognition of judicial decisions and a high level of confidence between Member States. Altaravicius v Minister for Justice Equality and Law Reform [2006] 3 IR 148, Minister for Justice Equality and Law Reform v Stapleton [2007] I.E.S.C.30.
In this regard decisions of the European Court of Justice in cases on Article 54 of the Schengen Agreement are relevant. Cases on Article 54 consistently recognise that Contracting Parties should recognise the criminal laws in force in other Member States even when the outcome would be different if its own national law had been applied: R. v Gozutok and Brugge [2003] C.M.L.R. 2, Van Esbroeck [2006] 3 CMLR 6 at para 30.
This court has the benefit of the decision of the European Court of Justice in Mantello Case C.261/09 of 16th November 2010 on the interpretation of Article 3.2 of the Framework Decision. An Italian court issued a European arrest warrant in respect of Mr Mantello in relation to criminal proceedings instituted against him. The prosecution concerned two charges:-
1. Participation in the framework of a criminal organisation comprising at least ten other persons in cocaine trafficking.
2. At the same time and at the same places acting alone or in concert with others he had unlawfully taken possession of, retained, transported, sold or disposed of cocaine to third parties.
T The facts alleged against Mr Mantello were the same as those alleged against him in earlier criminal proceedings which were disposed of by a judgment of the Italian Court convicting him and sentencing him to three years six months and twenty days and to a fine of €13,000 and which sentence had been served. On foot of the European arrest warrant Mr Mantello was arrested in Germany and in opposing his surrender to Italy he relied upon his earlier conviction arising out of the identical circumstances as those relied upon in the European arrest warrant. Under Italian law the earlier conviction did not preclude the criminal proceedings referred to in the European arrest warrant. The German court made a reference to the European Court of Justice for a preliminary ruling. In the course of its judgment the court dealt with the concept of “finally judged” as follows:-
“43. Thus, in fact, the referring court’s questions must be considered to relate more to the concept of ‘finally judged’ than to that of ‘same acts’.
The referring court enquires whether given the fact that, when the judgment of 30th November 2005 was delivered, the Italian investigating authorities were in possession of evidence pertaining to acts carried out in the period from January 2004 to November 2005 which could have proved that Mr Mantello had committed offences relating to participation in a criminal organisation and had been in illegal possession of drugs, that judgment could be regarded as constituting not only a final judgment convicting him in respect of the individual acts of 13th September 2005 in relation to which the offence of illegal possession of drugs intended for re-sale was applied, but also a judgment precluding subsequent prosecution of offences such as those referred to in the arrest warrant.
44. In other words, that court asks whether the fact that the investigating authorities held evidence concerning acts which constituted the offences referred to in the arrest warrant, but did not submit that evidence for consideration by the Tribunale Catania when that court ruled on the individual acts of 13th September 2005, makes it possible to treat the judgment as if it were a final judgment in respect of the acts set out in that arrest warrant.
45. In that regard, the requested person is considered to have been finally judged in respect of the same acts within the meaning of article 3.2 of the Framework Decision where, following criminal proceedings, further prosecution is definitively barred (see, by analogy joint cases C187/01 and C-385/01 Gozutok and Brugge [2003] E.C.R. 1-1345, paragraph 30 and case C-491/07 Turansky [2008] E.C.R. 1-11039, paragraph 32) or where the judicial authorities of a Member State have adopted a decision by which the accused was finally acquitted in respect of the alleged acts (see by analogy, Van Straaten paragraph 61, and Turansky, paragraph 33.)
46. Whether a person has been finally judged for the purposes of Article 3.2 of the Framework Decision is determined by the law of the Member State in which judgment was delivered.
47. Thus a decision which, under the law of the Member State which instituted criminal proceedings against a person, does not definitively bar further prosecution at national level in respect of certain acts cannot, in principle, constitute a procedural obstacle to the possible opening or continuation of criminal proceedings in respect of the same acts against that person in one of the Member States of the European Union (see, by analogy, Turansky, paragraph 36).”
The court (Grand Chamber) ruled as follows:-
“For the purposes of the issue and execution of a European arrest warrant, the concept of ‘same acts’ in Article 3(2) of Council Framework Decision 2002/584/JHA of 13th June 2002 and the European arrest warrant and the surrender procedures between Member States constitutes an autonomous concept of European Union law.
In circumstances such as those at issue in the main proceedings where, in response to a request for information within the meaning of Article 15(2) of the Framework Decision made by the executing judicial authority, the issuing judicial authority, applying its national law and in compliance with the requirements deriving from the concept of ‘same acts’ as enshrined in Article 3(2) of the Framework Decision expressly stated that the earlier judgment delivered under its legal system did not constitute a final judgment covering the acts referred to in the arrest warrant issued by it and therefore did not preclude the criminal proceedings referred to in the arrest warrant, the executing judicial authority has no reason to apply, in connection with such a judgment the ground for mandatory non-execution provided for in Article 3.2 of the Framework Decision.”
In Criminal proceedings against Turansky the court was concerned with Article 54 of the Schengen Agreement and the concept of “finally disposed of”. In the course of the preliminary ruling the court had this to say:-
“31. It is clear from the very wording of Article 54 of the CISA (Schengen Agreement) that no one may be prosecuted in a contracting State for the same acts as those in respect of which his trial has been ‘finally disposed of’ in another contracting State.
32. With regard to the concept of ‘finally disposed of’ the court has already declared, first in Gozutok [2003] C.M.L.R. 2 that when, following criminal proceedings, further prosecution is definitively barred, the person concerned must be regarded as someone whose trial has been ‘finally disposed of’ for the purposes of Article 54 of the CISA in relation to the acts which he is alleged to have committed.
33. Second, it has held in Van Stratten v Netherlands [2006] E.C.R. 1-9327 that article 54 of the CISA applies to a decision of the judicial authorities of a contracting State by which the accused is finally acquitted for lack of evidence.
34. It follows that, in principle a decision must, in order to be considered as a final disposal for the purposes of Article 54 of the CISA, bring the criminal proceedings to an end and definitely bar further prosecution.
35. In order to assess whether a decision is ‘final’ for the purposes of Article 54 of the CISA, it is necessary first of all to ascertain, as contended by the Austrian, Netherlands, Finish and U.K. Governments and by the Commission, that the decision in question is considered under the law of the Contracting State which adopted it to be final and binding, and to verify that it leads in that State, to the protection granted by the ne bis in idem principle.
36. A decision which does not, under the law of the first contracting state which has instituted criminal proceedings against a person, definitely bar further prosecution at national level cannot, in principle, constitute a procedural obstacle to the opening or continuation of criminal proceedings in respect of the same acts against that person in another contracting state.”
In R v Gozutok and Brugge the court held that a case is “finally disposed of” when further prosecution is definitively barred.
In Van Straaten v Netherlands, which is referred to in the judgment in Mantello, a judgment of acquittal was appealed and upheld on appeal: the acquittal on appeal was accordingly a final judgment. The European Court of Justice held at paragraph 61 as follows:-
“61. Consequently, the answer to the second question must be that the ne bis in idem principle enshrined in Article 54 of the CISA falls to be applied in respect of a decision of the judicial authorities of a Contracting State by which the accused is acquitted finally for lack of evidence.”
From the judgment in Mantello it is clear that “finally judged” in the Framework Decision has an autonomous meaning in the law of the European Union. Where under the law of the issuing Member State a judgment, in this case a judgment of acquittal, does not definitively bar further prosecution or as stated in Mantello “constitute a procedural obstacle to the possible opening or continuation of criminal proceedings in respect of the same acts against that person”, then that person has not been finally judged. A judgment which does not definitively bar further prosecution does not constitute a ground for mandatory non-execution of a European arrest warrant.
It is clear that the acquittal of the appellant of the offence does not definitively bar the commencement of further criminal proceedings in respect of the offence under the law of the United Kingdom by virtue of the Criminal Justice Act 2003 section 76(1). Accordingly it cannot be said that the appellant has been finally judged in respect of the offence. Accordingly the grounds for mandatory non-execution of the European arrest warrant in Article 3.2 of the Framework Decision do not apply. Section 41 of the European Arrest Warrant Act 2003 transposes into Irish law Article 3.2 of the Framework Decision and must be given conforming interpretation. Having regard to the decision in Pupino the phrase “final judgment” in section 41(1) must bear the autonomous meaning ascribed by the European Court of Justice to “finally judged” in Article 3.2 of the Framework Decision. The judgment of acquittal in respect of the offence accordingly is not “a final judgment” within the meaning of section 41 of the Act of 2003. The surrender of the appellant is not prohibited by section 41(1) of the Act of 2003. While before the Court of Appeal in the United Kingdom counsel for the prosecution considered the judgment of acquittal to be a final judgment until such time as it should be quashed this is not determinative for the purposes of this application: it is clear on the jurisprudence of the European Court of Justice that for purposes of the European arrest warrant the judgment of acquittal is not a final judgment, as in Mantello the acquittal does not constitute “a procedural obstacle to the possible opening or continuation of the criminal proceedings.”
While the respondent in submissions raised an issue as to whether there are differences between the common law concept of double jeopardy and the civil law concept of ne bis in idem, as I am satisfied that the judgment of acquittal in issue in these proceedings is not a final judgment it is unnecessary to consider this issue.
I would dismiss the appeal an affirm the order of the High Court.
Min for Justice v John Renner-Dillon
