Minister for Justice and Equality v Kerrigan [2019] IEHC 790 (07 November 2019)

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JUDGMENT of Mr. Justice Binchy delivered on the 7th day of November, 2019

1. In these proceedings, the applicant seeks an order for the surrender of the respondent to

the United Kingdom for the purpose of the prosecution of the respondent of offences

described in a European Arrest Warrant (“EAW”) issued by district judge Sarah Jane

Griffiths of Westminster Magistrates’ Court, as issuing judicial authority, on 6th June,

2019. The EAW was endorsed by this Court on 7th June, 2019, and the respondent was

arrested thereunder on 10th June, 2019, and remanded in custody thereafter.

2. The warrant is stated to relate to two offences, one of murder, contrary to common law,

and the other of attempted murder, contrary to an act entitled the Criminal Attempts Act

1981. At para. (E) of the EAW, it is stated that the respondent along with two others who

have already been charged, together with a fourth person, murdered a named individual

(the first offence), and were subsequently involved in the attempted murder of another

(the second offence). It is stated that this is a gang-related case, and that the attack on

the deceased was a pre-planned attack. It is stated that CCTV footage shows three males

including the respondent chasing the victim and striking him with knives.

3. As regards the second offence, the EAW states that the vehicle in which the respondent

and the others with him were travelling at the time of the first offence left the scene of

that offence and, within approximately 15 minutes, two males got out of their vehicle,

armed with knives, which they punched at the back of the victim. The victim has four stab

wounds in the middle of his back. The police arrive in a police vehicle, and, following upon

a chase, the respondent is identified as one of the people who later alights from the

vehicle used in connection with both offences. It is stated that he runs away and turns

back to face the camera and the police vehicle. It is stated that at this stage his face is

partially covered in a white T-shirt and he is carrying something in his hand. Later, police

find a white T-shirt and a knife discarded close by, both of which contain the DNA of the

respondent. The issuing judicial authority has ticked murder/grievous bodily injury at

4. The respondent swore an affidavit in opposition to this application dated 19th July, 2019,

and points of objection were delivered on his behalf on 2nd October, 2019. In his

affidavit, the respondent asserts that if he is convicted in the United Kingdom of the

offences described in the EAW he wishes to be returned to this country to serve his

sentence. However, he avers that if he is convicted in respect of the attempted murder

charge he will face a determinate sentence, and at present requests for the transfer of

determinate sentences from the United Kingdom to Ireland are not being processed

5. He further avers that if he is surrendered, he has been advised by lawyers in the United

Kingdom that he may be sent to HMP Wormwood Scrubs depending on the magistrates’

court that he first attends. However, he could also be sent to either of HMP Pentonville, or

HMP Thameside. Since his case will go to the Old Bailey, another possibility is that he

6. The respondent then refers to criticisms of these prisons by HM Chief Inspector of Prisons

(the “Chief Inspector”) and refers to reports issued by the Chief Inspector in 2017 in

connection with the first three prisons, and in 2018 in connection with Belmarsh. He avers

that he is concerned for his safety and well-being if returned to the United Kingdom. He

says that he resided with his aunt in London and there have been a number of attacks on

her property. These attacks have continued while he has been detained here in Cloverhill

prison. He also says that his life has been openly threatened on social media on a number

of occasions, and having regard to all of this he believes that his life would be in danger if

7. A notice of objection to surrender was filed on behalf of the respondent on 2nd October,

2019. This application then came on for hearing on 30th October, 2019. Thirteen points of

objection were raised on behalf of the respondent, but not all were pursued and in this

decision I will address only those that were pursued by the respondent at the hearing of

It was contended on behalf of the respondent that the EAW was unclear or ambiguous as

to whether the surrender of the respondent was required for the purpose of prosecution,

sentencing or execution of a sentence. In this regard the respondent was effectively

relying upon the failure on the part of the issuing authority to strike out standard form

portions of the EAW that were not of application in this case. So, for example, the

opening paragraph of the EAW states: “I request that the person mentioned below be

arrested and surrendered for the purposes of conducting a criminal prosecution or

executing a custodial sentence or detention order” and at para. (F) of the warrant it is

stated: “if the executing judicial authority is required by its domestic law to refuse to

surrender the requested person on the grounds of Article 4 (6) of the Council Framework

Decision on the European arrest warrant, it is requested to supply an undertaking that it

will execute the sentence in accordance with its domestic law”. The text relied upon by

the respondent in support of this objection is text that appears in all EAWs issued by the

United Kingdom, and while it is true that it would be preferable that EAWs were always

properly completed and superfluous text deleted, it does not follow that a failure to do so

will result in a refusal of surrender where the intention of the warrant is clear. In this

regard at para. (B), sub para. 1 of the EAW it is stated that the decision on which the

warrant is based is a warrant of arrest in first instance issued by Westminster Magistrates’

Court on 6th June, 2019, and at sub para. 2 where the words “enforceable judgment:”

appear, they are followed by N/A. The EAW clearly states that no sentence has been

imposed, and later, at para. (E) it is stated: “charges have been authorised as follows in

relation to Kerrigan:”. Particulars of the charges then follow.

9. Finally, in relation to this objection, at para. (D) it is stated that this section of the EAW,

which only applies to trials in absentia, is not applicable. In my opinion, it could not be

more clear that the purpose of the warrant is to prosecute the respondent for the offences

An objection made that the respondent did not know with clarity the number of offences

for which his surrender was sought was not pursued and it was conceded that the EAW

makes it clear that his surrender is sought for two offences, murder and attempted

murder. As regards the latter, it was argued that the warrant discloses no more than the

possible presence of the respondent at the scene of the attempted murder, and mere

presence at the scene is not a crime in this jurisdiction. This argument was advanced on

the basis that attempted murder cannot be considered, for the purpose of the “ticked box

offences” as being the same as murder. It is argued that it is therefore necessary to

demonstrate correspondence between the acts described in the EAW and the offence of

11. Counsel for the applicant argued that murder includes attempted murder for the purpose

of the “ticked box offences”. I think that this is unlikely to be correct. But in the

circumstances of this case it hardly matters. The EAW makes it clear that the respondent

is to be charged with attempted murder, which is an offence in this jurisdiction. Moreover,

I do not think that there can be any doubt that the description of the actions comprising

the attempted murder described in the EAW, and as summarised at para. 3 above, would

certainly amount to an offence in this jurisdiction. Section 5 of the European Arrest

Warrant Act 2003 (the “Act of 2003”) requires the Court to consider whether the acts

allegedly carried out by the respondent as described in the EAW would, if committed in

the State on the date on which the EAW is issued, constitute an offence under the law of

the State. The EAW describes how the victim of the attempted murder was stabbed in the

back by two individuals who alighted from a car in which the respondent was travelling. It

also describes how a person believed to be the respondent is seen to be one of those

alighting from the vehicle and thereafter dropping the knife, which was later found to

contain the respondent’s DNA. Whether or not the respondent can be proven to have

been at the scene and actively involved in the events described in the EAW is a matter for

the trial. For the purpose of this application the Court is only required to be satisfied that

the activities described would constitute an offence in this jurisdiction if committed as of

the date of the EAW. I am absolutely satisfied that this is the case. As Mr. Farrell for the

applicant put it, the actions concerned could amount to any number of offences, including

attempted murder, assault causing harm and assault causing serious harm.

In relation to the offence of attempted murder, the respondent also objects to his

surrender because, if convicted, he will be sentenced to a determinate sentence with a

custodial element and a licence element in the issuing state. The laws of this State do not

at the moment provide a legal basis for giving force and effect to such a sentence in this

jurisdiction, and the respondent has stated that if convicted and sentenced he wishes to

serve his sentence here, and the respondent argues that this is oppressive and arbitrary

and contrary to law. No authority was opened to me for this proposition. Nor do I consider

that a sentencing regime which affords a significant concession to a convicted person by

way of his release upon a licence could be considered as oppressive or arbitrary.

Furthermore, the Framework Decision provides for very limited and exhaustive grounds

for refusal of surrender. This argument is not one of those grounds, and this objection

must also be rejected. I should add however that at the hearing of this application

counsel for the respondent made the point that even if this ground of objection is

unsustainable in and of itself, it serves to emphasise and support the arguments of the

respondent made below as to a violation of his rights under the European Convention on

Human Rights, the Constitution and the Charter of Fundamental Rights of the European

Counsel for the respondent also expressed concern that the arrest warrant on which the

EAW is based bears the same date as the EAW itself. Counsel refers to an affidavit of laws

sworn on behalf of the respondent, in connection with these proceedings, by a Benjamin

Seifert, barrister of Temple Garden Chambers, London. Mr. Seifert refers to section 142 of

the Extradition Act 2003 in the United Kingdom which requires that the issuing authority

in that jurisdiction may issue an EAW when satisfied that there are reasonable grounds

for believing that the person has committed an extradition offence, and that a domestic

warrant has been issued in respect of that person. There are also other alternatives but

this is the one that applies in this case. Mr. Seifert also refers to the decision of the CJEU

in the case of Bob-Dogi (C-241/15, EU;C:2016:385) in which, at para. 64, the CJEU held

that an EAW must, in an accusation case, be based on a prior separate national arrest

warrant. Since both the arrest warrant on which the EAW is based and the EAW bear the

same date, Mr. Seifert expresses the view that, notwithstanding the mutual trust which

member states of the EU must accord to each other in these matters, this Court should

ensure that a warrant for the arrest of the respondent had in fact been issued prior to the

issue of the EAW by raising this query with the issuing judicial authority. Counsel for the

respondent submits that it would not be an affront to the concept of mutual trust to

request this assurance in circumstances where the arrest warrant is stated to bear the

14. In my view however, such a course would be inappropriate. Both the arrest warrant

referred to in the EAW, and in the EAW itself were issued on the same day by the same

court i.e. Westminster Magistrates’ Court. The trust and confidence which member states

are required to afford each other for the purposes of implementing the Framework

Decision require that, unless there is an obvious error or lack of clarity on the face of the

EAW, facts that are clearly and unambiguously stated must be accepted, and the Court

must further accept that procedures have been followed correctly. The Court is not

entitled to ask for a copy of an arrest warrant either to satisfy itself as to its existence, its

contents or the date of its issue. It must accept what is stated in the face of the EAW in

this regard. The fact that the warrant and the EAW bear the same date does not create

any uncertainty or ambiguity, and nor does it alter the general obligation of the Court to

presume that these procedures have been correctly followed. It is not at all unusual for

documents completed at the same date to be completed in a particular or specified order

as the circumstances may require. It is in my view correct and appropriate for this Court

to proceed on the basis that the issue of the arrest warrant preceded the issue of the

This brings me to the final ground of objection which is that if the respondent is

surrendered, he will be exposed to a real risk of a violation of his rights under either or

both of Articles 2 and 3 of the European Convention on Human Rights (the “Convention”)

and/or his right to bodily integrity pursuant to Article 40.3.1 of the Constitution and/or

“Charter”). Consequently, the surrender of the respondent would be in breach of section

37 of the Act of 2003. The risk identified by the plaintiff is that, by reason of the extent of

inter-prisoner violence in those prisons in which he is most likely to be incarcerated, he

will be exposed to the risk of violent assault. Counsel for the respondent relies upon the

reports of the Chief Inspector referred to above. I turn now to address these reports.

In his report for the period 1st-12th April, 2019, the Chief Inspector stated in his

summary that: “This inspection found a prison that was delivering weak outcomes for

prisoners in most areas and unacceptably poor outcomes in safety”. Later, at para. S 7, it

is stated that about one third of prisoners in the Chief Inspector’s survey said that they

currently felt unsafe, which was similar to other prisons. He also stated that the prison

had yet to develop an effective strategic response to these concerns. He noted that levels

of violence had increased by over 50% since the previous inspection, and at para. S 49,

he noted that use of force in the prison was higher than comparator prisons.

17. The Chief Inspector expressed concern about the management of violence in the prison

which he felt was weak. However, he noted that the relatively new Governor and his

senior team, with active support from the group director, appears to be getting to grips

with long-standing problems, and that managers appear to be working together to bring

about the changes that were needed. Many managers expressed the view that within 12

The report of the Chief Inspector in this case relates to the period of 31st July-11th

August 2017. In his introduction, the Chief Inspector notes that: “the prison was still not

safe enough, with high levels of often serious violence. It would be wrong to say that

there had been no work to try to improve the situation, yet in our survey prisoners told us

19. At para. S 4, he records that “too many prisoners did not feel safe. In our survey around

two thirds of prisoners said they felt unsafe at the prison at some time, and over one

third that they currently felt unsafe, both of which were worse than at similar prisons and

at the previous inspection. Levels of violence were high, and much of it serious, including

20. The Chief Inspector considered that the strategic response to violence was weak, and

insufficient staff are allocated to safer custody work. He recommended that sufficient staff

should be allocated to safer custody and other key tasks to ensure a proactive approach

Counsel for the respondent also refers to the report of the Chief Inspector in relation to

these prisons, mainly for the purpose of contrasting the conditions in these prisons with

those prevailing at Pentonville and Wormwood Scrubs. The Chief Inspector noted that

“Like many other prisons, Thameside faced challenges connected to violence. Levels of

violence were high, and had not reduced since the last inspection. However, there was a

good violence reduction plan in place and although there has not been a reduction in

violence, Thameside had bucked the trend in comparable prisons as it had not

experienced the huge rises in violence seen elsewhere. This was a significant

22. In his introduction he concludes that “overall, HMP Thameside was a relatively good

prison, and we have identified an unusually high number of good practice points from

23. Safety for prisoners at Belmarsh was found to be reasonably good and while the inspector

noted that the number of incidents of violence had increased since his last inspection,

nonetheless he found the prison to be well run notwithstanding that it presented

unusually complex challenges for prison management by reason of the diversity of prison

inmates and the fact that it is a high security prison, housing some of the highest risk

24. Counsel for the respondent in this case submitted that the reports of the Chief Inspector

in relation to Pentonville and Wormwood Scrubs disclose conditions in these prisons that

are such as to constitute substantial grounds for believing that the respondent, if

surrendered to either of those prisons, would be subject to a real risk of a violation of his

Convention, Charter and Constitutional rights. On the other hand he conceded that if the

respondent had assurances that he would not be incarcerated in one of these

establishments (or equivalent) and that he would instead be incarcerated in a modern

prison where safety problems are satisfactorily addressed (such as Belmarsh or

Thameside) he could not oppose surrender. He relied upon the decision of Donnelly J. in

Minister for Justice and Equality v R.O [2017] IEHC 663 in which case the respondent was

certain to be detained in Maghaberry in Northern Ireland, if surrendered.

25. In R.O Donnelly J. considered two reports concerning Maghaberry. These were reports of

2015 and 2016 prepared by the UK national preventive mechanism against torture. The

latter report stated that levels of violence in the prison were too high and that a

significant amount of work remained to make the prison safer for prisoners. Donnelly J.

was also satisfied that Maghaberry was the prison in which the respondent would most

26. She further found that the respondent in that case was particularly vulnerable because of

the seriousness of the offences for which his surrender was sought, because of specific

threats to his life and because he continued to suffer from health difficulties arising out of

27. Donnelly J. then considered all of these factors in the light of the principles laid down by

the Supreme Court in Minister for Justice, Equality and Law reform v Rettinger

[2010] IESC 45 and also the decision of the European Court of Justice in the joined cases of

Aranyosi (C-404/15) and Căldăraru (C-659/15 PPU). She considered that the respondent

had adduced cogent evidence to establish to her satisfaction that, there were substantial

grounds for believing that, if he were surrendered, the respondent in that case would be

exposed to a real risk of being subjected to treatment prohibited by Article 3 of the

Convention. She arrived at this conclusion on the very specific facts of the case, i.e. the

particular vulnerabilities of the respondent in that case as described above, coupled with

the fact that, if surrendered, the respondent would almost certainly be detained in

Maghaberry, where he would be subject to particular risks of ill-treatment because of his

28. Having arrived at that conclusion, Donnelly J. then held that the appropriate course to

take was for the court to exercise its powers under section 20 of the Act of 2003 to seek

further information from the issuing judicial authority as to the conditions in which the

respondent would be held if he were to be surrendered to face trial in Northern Ireland.

29. In this case, and on the basis of the authority of R.O, the respondent invites the Court to

go further, and to seek assurances from the issuing judicial authority that the respondent

will not be detained in either of HMP Pentonville or HMP Wormwood Scrubs, and instead

30. Counsel for the Minister however argues that there is no authority for the proposition that

the shortcomings at Wormwood Scrubs and Pentonville identified in the reports of the

Chief Inspector amount to a breach of Article 3 of the Convention. He submits that inter-

prisoner violence of itself does not constitute a violation of Article 3. He further submits

that the risk of inter-prisoner violence is a fact of prison life and could not of itself

constitute a violation of Article 3 rights, which he submits requires deliberate state action.

31. He further submits that the conclusions of the reports concerning Wormwood Scrubs and

Pentonville should not be re-cast as conclusions that the conditions in those prisons give

rise to a violation of Article 3 rights. He submits that the respondent’s arguments in

relation to this issue revolve around degrees of risk of violence in different prisons, and

while the risk of inter-prisoner violence may be greater in one prison than another, this

does not mean that detention in the former gives rise to a violation of Convention or

32. He argued that the decision of Donnelly J. in R.O is confined to its own facts, and the

prisoner safety problems at Maghaberry in and of themselves would not have been

sufficient for Donnelly J. to seek the additional information that she did in that case. She

did so because of the combination of those problems and the particular vulnerabilities of

the respondent in that case. In this case, it is submitted, the evidence of the respondent’s

personal circumstances fall considerably short of establishing that he is likely to be at any

Firstly, it is unnecessary to arrive at any conclusion on the argument that inter-prisoner

violence per se cannot form the basis of a claim under Article 3 of the Convention. That

issue can await decision on another day when it may be argued more fully than in these

proceedings. This application can be decided by the application of the principles set forth

in Rettinger and Aranyosi, which are broadly the same. As Donnelly J. noted in R.O, at

para. 57 “ the test identified by the CJEU [in Aranyosi] that must be met before surrender

is prohibited, is the same as that identified in Rettinger (and indeed other cases from the

ECtHR identified in Rettinger); there must be substantial grounds for believing that

following surrender a person will run a real risk of being subject, in the issuing member

“[W]here there is objective, reliable, specific and properly updated evidence with respect

to detention conditions in the issuing Member State that demonstrates that there

are deficiencies, which may be systemic or generalised, or which may affect certain

groups of people, or which may affect certain places of detention, the executing

judicial authority must determine, specifically and precisely, whether there are

substantial grounds to believe that the individual concerned by a European arrest

warrant, issued for the purposes of conducting a criminal prosecution or executing

a custodial sentence, will be exposed, because of the conditions for his detention in

the issuing Member State, to a real risk of inhuman or degrading treatment, within

the meaning of Article 4 of the Charter, in the event of his surrender to that

35. The reports of the Chief Inspector clearly constitute updated, objective and reliable

evidence. Arguably however, they are not specific enough for the purpose for which they

are being used by the respondent and the reports of the Chief Inspector stop short of

saying that inter-prisoner violence is systemic at those prisons. In any case, the fact that

there is a greater risk of inter-prisoner violence in one prison more than in another falls a

long way short of constituting substantial grounds for believing that an individual would

be exposed, because of the conditions of detention in the prison where the risk of inter-

prisoner violence is greater, to a real risk of inhuman or degrading treatment. It is

inevitable that there will be varying degrees of risks of such violence in different prisons

and in order to be satisfied that there are substantial grounds of the kind required to

meet the test in Aranayosi it is necessary to establish that the extent of the violence is so

great that the degree of risk posed to the individual concerned, is a “real risk”. It was

held in Rettinger that the risk of inhuman or degrading treatment need not be a

probability, but it must be more than a mere possibility. In this case, the reports of the

Chief Inspector in relation to HMP Pentonville and HMP Wormwood Scrubs undeniably

raise serious concerns about prisoner safety, such as to require action on the part of the

prison authorities (as per the recommendations of the Chief Inspector). However, it

seems to me that they do not elevate the risk posed to the respondent, if surrendered

and subsequently detained in either of those institutions, to that of a “real risk”.

36. There is no data or statistical information in the reports of the Chief Inspector such as

might help the Court assess the likelihood of being assaulted in either of these

institutions, but it is interesting to note that in HMP Pentonville, with all its faults, the

report states that about a third of prisoners feel unsafe, and the Chief Inspector noted

that this is similar to other prisons. This is the case also at Wormwood Scrubs at the time

of inspection (see para. 19 above), although somewhat confusingly in his report on

Wormwood Scrubs he suggests that the proportion of one third is higher than in similar

prisons. Moreover, and very importantly, the respondent failed to put forward any

objective evidence that he personally is at a greater risk than anybody else in the prison

37. Finally, the Court must not lose sight of the fact that there is a presumption that the

requesting state will respect the fundamental rights of the requested person. While this

presumption may be rebutted when a real risk of inhuman or degrading treatment is

established (in accordance with the tests in Rettinger and Aranyosi) it is obviously a factor

which the Court needs to bear in mind when such objections are raised.

38. For these reasons this objection too must be rejected. Since all of the respondent’s

objections to his surrender have been rejected, and since I have also found the

requirements of the Act of 2003 to have been fully complied with, I hereby order the

surrender of the respondent to the authorities in the United Kingdom for the purposes set

39. Finally, I should address non-contentious matters. At the hearing of this application I was

satisfied that the person before the Court was one and the same as the person referred to

40. I was also satisfied that the EAW contains all of the information required by s. 11 of the

41. Since the EAW seeks the surrender of the respondent for prosecution, his surrender is not

42. Finally, I am satisfied that the Court is not required to refuse the surrender of the

respondent on the basis of any of ss. 21a, 22, 23 and 24 of the Act of 2003.

Result: Surrender of the respondent was ordered

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