BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Supreme Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Dundon -v- The Governor of Cloverhill Prison [2005] IESC 87 (19 December 2005) URL: http://www.bailii.org/ie/cases/IESC/2005/S87.html Cite as: [2005] IESC 87 |
||
[New search] [Help]
|
Judgment Title: Dundon -v- The Governor of Cloverhill Prison Composition of Court: Murray C.J., Denham J., Hardiman J., Geoghegan J., Fennelly J. Judgment by: Geoghegan J. Status of Judgment: Approved
| ||||||
- 13 - THE SUPREME COURT Murray C.J.Record No. 171/05 Denham J. Hardiman J. Geoghegan J. Fennelly J. IN THE MATTER OF ARTICLE 40.4 OF THE CONSTITUTION AND OF THE HABEAS CORPUS ACT, 1782 BETWEEN/ KENNETH DUNDON Applicant/Appellant and GOVERNOR OF CLOVERHILL PRISON Respondent and MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM Notice Party JUDGMENT of Mr. Justice Geoghegan delivered 19th December 2005This appeal has thrown up some very serious issues relating to the effectiveness and enforcement of the European arrest warrant. The appeal in point of form is from an order of the High Court (O’Sullivan J.) refusing an application under Article 40.4 of the Constitution, the court having been satisfied that the appellant was detained in accordance with law. In both courts the argument of the appellant has been that a relevant time limit in the procedures under the European Arrest Warrant Act, 2003 has long ago elapsed and that although the Act does not expressly say so, it must automatically follow that the appellant upon expiration of the relevant period is entitled to be released and that that necessary consequence is not in any way removed or diminished by the fact that the expiration of the time limit resulted from proceedings and appeals instigated by the appellant himself. Although the said Act of 2003 contains other time limits and expressly provides for release upon their expiration, no such provision is contained in respect of the particular time limit relevant to this case nor does the Act make clear that a court in dealing with any particular case is bound by such time limit. The obligation to release is claimed to arise by inference in particular having regard to the terms of section 10 of the Act which reads as follows: “Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person –
that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision be arrested and surrendered to the issuing state.” I will now turn to the factual background to this case before resuming any discussion of the legal issues involved. A European arrest warrant against the appellant was issued by a District Judge (Magistrates’ Courts) at Thames Magistrates Court in London on the 29th January, 2004. The warrant requested that the appellant be arrested and surrendered for the purposes of conducting a criminal prosecution, sentencing following conviction or executing a custodial sentence or detention order. The relevant alleged offence was murder. Under the provisions of section 13 of the European Arrest Warrant Act, 2003 “The Central Authority in the State” (defined as the Minister for Justice, Equality and Law Reform) must apply to the High Court for endorsement of the warrant. This was done and the warrant was duly endorsed for execution by the High Court on the 2nd February, 2004. On the 11th February, 2004 the appellant was duly arrested in Limerick and on the same day brought before the High Court in Dublin and remanded in custody pursuant to section 13(5) to the 27th February, 2004 (being the date fixed for the purposes of section 16 of the Act). It is important to pause here and explain these two statutory provisions, in so far as they are relevant to this case. Under the provisions of section 13(5) a person arrested under a European arrest warrant shall as soon as may be after his or her arrest be brought before the High Court and the High Court if satisfied as to identity must remand the person arrested either in custody or on bail, must fix a date “for the purpose of section 16 (being a date that falls not later than twenty-one days after the date of the person’s arrest)” and must then inform the arrested person of certain rights which are set out in the subsection. To understand the significance of the reference to section 16, I think it useful to cite at this stage the opening words of subsection (1) of that section. These read as follows: “(1) Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under section 15(9), the High Court may, upon such date as is fixed under section 13, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her provided that – … … … … … … … … … … … … …” Returning to the chronology, no decision was in fact made on the 27th February, 2004, the date fixed for the purposes of section 16. Instead the application was adjourned to the 12th March, 2004, was further adjourned on that date to the 18th March, 2004, was again adjourned on the 18th March to the 25th March, 2004 and finally, on that date was yet again adjourned to the 7th May, 2004. The orders made on each of these dates included continuing orders for remand in custody. Apparently, the reason for the several adjournments was because certain undertakings required by the Act were not before the High Court. These undertakings were certified and transmitted from Thames Magistrates Court on the 18th March, 2004. Arguments were made on behalf of the appellant that these undertakings did not comply with the Act and at that time the High Court (Ó Caoimh J.) having heard the submissions, reserved judgment until the 14th May, 2004 while at the same time continuing the remand in custody. On the 14th May, 2004 the High Court decided that the undertakings did comply with the Act and the surrender of the appellant under section 16 was duly ordered. The appellant was again remanded in custody. The appellant appealed that decision but on the 16th March, 2005 the Supreme Court dismissed the appeal and affirmed the order of the High Court. On the same day an application was made to the High Court (O’Sullivan J.) for this inquiry under Article 40. In his reserved judgment in the High Court, O’Sullivan J. mentions that counsel had informed him that mention was made in the course of the hearing before the Supreme Court that a further legal challenge would be mounted in relation to time limits and that it was indicated by the Supreme Court that that was a matter for another day. Accordingly, that issue had to be considered de novo before O’Sullivan J. As I have already indicated at the beginning of this judgment, the appellant at this stage was arguing before the High Court that a relevant and definitive time limit had expired and, that that being so, the appellant was automatically entitled to be released. The alleged time limit relied on was a time limit of sixty days from the arrest of the person concerned under section 13. For a proper understanding of this submission it is important that I, at this stage, cite section 16(10) and (11) which respectively read as follows: “(10) If the High Court has not, after the expiration of sixty days from the arrest of the person concerned under section 13 … made an order under this section … or has decided not to make an order under this section, it shall direct the Central Authority in the State to inform the issuing judicial authority and, where appropriate, Eurojust in relation thereto and of the reasons therefor, specified in the direction, and the Central Authority in the State shall comply with such direction. (11) If the High Court has not, after the expiration of 90 days from the arrest of the person concerned under section 13 … made an order under this section … or has decided not to make an order under this section, it shall direct the Central Authority in the State to inform the issuing judicial authority and, where appropriate, Eurojust in relation thereto and of the reasons therefor specified in the direction, and the Central Authority in the State shall comply with such direction.” “1. A European arrest warrant shall be dealt with and executed as a matter of urgency. 2. In cases where the requested person consents to his surrender, the final decision on the execution of the European arrest warrant should be taken within a period of 10 days after consent has been given. 3. In other cases, the final decision on the execution of the European arrest warrant should be taken within a period of sixty days after the arrest of the requested person. 4. Where in specific cases the European arrest warrant cannot be executed within the time limits laid down in paragraphs 2 or 3, the executing judicial authority shall immediately inform the issuing judicial authority thereof, giving the reasons for the delay. In such case, the time limits may be extended by a further 30 days. 5. As long as the executing judicial authority has not taken a final decision on the European arrest warrant, it shall ensure that the material conditions necessary for effective surrender of the person remain fulfilled. 6. Reasons must be given for any refusal to execute a European arrest warrant. 7. Where in exceptional circumstances a Member State cannot observe the time limits provided for in this Article, it shall inform Eurosjust, giving the reasons for the delay. In addition, a Member State which has experienced repeated delays on the part of another Member State in the execution of European arrest warrants shall inform the Council with a view to evaluating the implementation of this Framework Decision at Member State level.” As a general proposition I would agree with counsel for the appellant that where there is an ambiguity in legislation as to whether the Oireachtas intended in a given instance detention or freedom there is a prima facie presumption in favour of an interpretation involving freedom. But just because some particular aspect is not expressly spelled out in an Act it does not necessarily mean that there is an ambiguity as far as interpretation is concerned. There is a duty on the courts to read the Act as a whole and interpret it. Having carried out this exercise, I find myself broadly in agreement with the interpretation placed on the relevant provisions by the learned trial judge, O’Sullivan J. I particularly agree with the following passage in his unreported judgment delivered the 3rd May, 2005. “My conclusion is that the parties to the Framework Decision included the time limits before the final decision to express their determination that the extradition process would be speedy and that the member states would be kept aware of each other’s standard of performance in this context. The time limits specified for surrender after the final decision are in a different category, namely, they are mandatory in principle with the result that the requested person is intended to be released if they are not complied with. I can see no other reasonable interpretation of the striking difference between these two sets of provisions and indeed given the potential for delay outside the control of a member state in conducting the process up to the making of the final decision, it is entirely understandable that the parties to this decision should not have intended the immediate release of a requested person in the event that a final decision is not made by a member state within the specified period in any particular case. Such a consequence would, in my opinion, have to be spelled out clearly and unambiguously given the primary obligation on participating member states to execute the European arrest warrant as set out in Article 1. Even assuming, without explicitly so finding, that Article 17 has been incorporated word for word into the Act, I cannot agree that it provides that the consequence of the failure of the High Court to make a final order within the time specified therein (whether 60 or 90 days) is that the applicant is entitled to immediate release.” In an earlier part of his judgment the learned High Court judge also made the following observation: “In my opinion if section 16 were to be construed on its own the inevitable interpretation would be that it intends the release of the requested person where the High Court decides not to make an order but where it has reached no decision within 60 (or 90) days the intention is not that the requested person be released but simply that the specified authorities be informed. So far as the legislature is concerned therefore where an order has not been made after the specified periods there is no intention to provide for the release of the requested person.” The fundamental question which both parties have been addressing in this case has at all stages been the question of whether the appellant upon the expiration of the sixty day time limit unextended was entitled ipso facto to be released. I believe, however, that that was the wrong question. The correct question to be addressed and which was in fact addressed by the learned High Court judge is whether following upon the expiration of the sixty day period unextended the duty to execute the warrant ceases. If the answer to that question is in the affirmative then there can obviously be no disputing the appellant’s right to release. If, however, the duty to execute continues then there can be no right to an absolute or permanent release. It may, of course, be open to a court to grant bail. In some circumstances a court may consider that the proceedings ought to be struck out or dismissed and an order for release made on the grounds of a breach or breaches of the arrested person’s fundamental rights. This power of the court is not affected by the provisions of either the European Arrest Warrant Act, 2003 itself or by the Council Framework Decision. Indeed, the twelfth recital to the Framework Decision makes this clear and it is worth quoting in full. “This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union in particular chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation or that that person’s position may be prejudiced for any of these reasons. This Framework Decision does not prevent a member state from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media.” “Member states shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.” “This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.” Even if I am wrong about this interpretation and that in some circumstances the time limits are to take effect in individual cases, I would then be of the view that on any reasonable purposive interpretation of the Act and the Framework Decision, self-induced delay on the part of the arrested person must be discounted in calculating the period. Otherwise, in my opinion, the Framework Decision in many cases all over Europe will be unworkable. Delays by way of court proceedings and appeals are common to all member states and indeed “delay” is the wrong word as that implies some kind of blameworthiness. A more accurate expression would be “a lapse of time”. In this jurisdiction unlike most jurisdictions in the European Union there is only one appeal from the highest court of first instance. In the jurisdiction of England and Wales there is an appeal to the Court of Appeal and a possible further appeal to the House of Lords. In Scotland the position is similar with the Inner House of the Court of Session performing the function of the Court of Appeal. In France there is the Cour d’Appel and in certain circumstances a further appeal from it to the highest court. Similarly, in most countries in Europe. All courts have recesses in the summer and at Christmas for instance. It would seem to me that in any country within the European Union it is quite a likely scenario that the sixty day or indeed the ninety day time limit would be exceeded without fault on anybody’s part especially if interlocutory applications or interlocutory appeals were brought, as happened in this case and as might happen in any case, as for instance, a discovery application. Such an application might go through all the court systems on appeal and inevitably these time limits would expire. Unless these periods are to be discounted in making the calculation the Framework Decision is unworkable. One could envisage, of course, a different form of Framework Decision that might have provided for a mandatory execution of the warrant within a particular period and the return of the person to the executing state in the event of a subsequent appeal by that person being successful. But no such provision is contained in this Framework Decision. I have already indicated that I believe that none of this arises because I am satisfied that the time limits of sixty days and ninety days have no relevance to individual rights in individual cases. But I repeat that if I am wrong about this, I still believe that time taken up in court proceedings instigated by the arrested person must, as a matter of purposive interpretation, be discounted. The learned High Court judge in his judgment has referred both to section 16(7) of the Act and to Article 23(5) of the Framework Decision. Both of these provisions refer to the time limit for surrender of a person who has not consented to his or her surrender or has withdrawn such consent. If the High Court decided not to make an order for surrender the arrested person must be released unless serving sentence for some other reason. If it had been the intention in the Framework Decision that such would be the consequence of the expiration of the sixty day or ninety day time limits, I cannot imagine why a similar express provision for release would not have been contained in the decision. For all these reasons, I would dismiss the appeal. Dundon v. Govr. of Cloverhill Prison | ||||||
