R -v- Governor of Wheatfield Prison
Neutral Citation [2009] IEHC 442.
HIGH COURT
Judgment was delivered by Mr Justice Liam McKechnie on May 5th, 2009.
JUDGMENT
In a case which Mr Justice McKechnie said had an importance outside its specific facts, a man who was the subject of a European Arrest Warrant issued in the UK in connection with sex offences failed to obtain a declaration that his detention in Ireland was unlawful because of the withdrawal of the original warrant for his arrest in the UK.
BACKGROUND
The issue in this case was: if the UK domestic warrant was no longer in existence on the date of the application for the surrender of the sought person, what effect might this have on the European Arrest Warrant and could the High Court still order the surrender of the person?
Mr R was alleged to have committed three acts of indecent assault against a nine-year- old between June and September 2001. Hendon Magistrates Court issued a warrant for his arrest on January 14th, 2003. Mr R fled to this jurisdiction and, on February 15th, 2005, Bow Street Magistrates Court in London issued a European Arrest Warrant for him. He was arrested in this jurisdiction on April 18th that year and released on bail.
In the High Court in November 2005, Mr Justice Michael Peart refused to order the man’s surrender and dismissed the application for it. The Minister for Justice appealed this decision to the Supreme Court in December 2005; the applicant cross-appealed. In February 2007, the appeal was heard by the Supreme Court and judgment was reserved. In July 2007, the Hendon warrant was withdrawn by order of the Hendon Magistrates Court.
On November 15th, 2007, the Minister’s appeal was upheld by the Supreme Court and the applicant’s surrender to England was ordered. He was remanded in custody pending his transfer. However, on November 27th, the Supreme Court was informed of the withdrawal of the Hendon warrant the previous July, meaning that no domestic warrant existed on November 15th, when his surrender was ordered. On November 28th, Hendon Magistrates Court issued a second warrant, identical to the first.
The Supreme Court then heard a submission on behalf of the applicant that in the circumstances, the European Arrest Warrant was invalid and no order for his surrender should have been made. It ruled that he should pursue the point by way of a habeas corpus application to the High Court, which the Supreme Court ruled would have jurisdiction to review all issues between the parties, including its own orders of November 15th and 23rd, 2007.
The High Court then heard all issues via the habeas corpus application. In relation to the Hendon warrant, the court heard that on January 14th, 2003, details of Mr R, as a wanted person, were circulated on the police national computer. This entry was due for an automatic review on January 30th, 2007.
If standard practice had been adhered to it would have been reviewed on that date, but was not. It was reviewed in either April or July of that year and his name was removed from the national computer, as the most up-to-date information available to the police at the time was the November 2005 High Court rejection of the application for his surrender, with no mention of the pending Supreme Court judgment on the Minister’s appeal.
In July, the warrant was withdrawn in Hendon Magistrates Court.
According to the English investigating officer, the withdrawal of the warrant was due to “a misunderstanding in relation to the process before the Irish courts”. She also made the point that it was still the intention to prosecution Mr R, and that if he were within the UK he could be arrested at common law without a court warrant, given the nature of the alleged offences.
An English barrister gave evidence for the applicant that as a matter of English law, the existence of the underlying warrant was critical for the continuing validity of the EAW. This was countered by two legal witnesses for the English prosecution service, who said that once issued, an EAW had independent legal effect unrelated to the continuing existence or validity of the underlying domestic warrant.
Counsel for the State pointed out that the European Council’s framework decision on June 13th, 2002, which gave rise to the European Arrest Warrant Act 2003, did not require a domestic warrant to remain in existence once the EAW had been granted.
DECISION
After examining the Framework Decision and the cases of Fallon, Altaravicius and Stapleton, Mr Justice McKechnie said it was undoubtedly the case that the court could examine the validity of the EAW at its date of issue. Surrender could also be refused in several instances where the warrant remains valid, he said. In this case, a finding of invalidity was essential if Mr R was not to be surrendered.
Turning to the circumstances where the applicant’s name was removed from the police computer and the Hendon warrant withdrawn, he pointed out that the most recent information available to the police at the review date in mid-2007 was sourced from November 2005. “Why did not the police search out what the up-to-date position was?” he asked, “and what steps have been taken by either or both bodies [police and Crown Prosecution Service] to ensure that what caused this type of failure has been addressed?”
Mutual recognition was essentially built on trust and complacency could not be tolerated, Mr Justice McKechnie said. In relation to this case, he said the Act required that the EAW was validly issued at its date of issue, but it had nothing to say about its continuing validity.
A warrant could be challenged if the court was satisfied that a decision had not been made to charge the suspect person with the offences specified in the warrant, but this was not the case here, as the Hendon warrant was withdrawn erroneously.
Mr R had therefore been unable to satisfy the court that his detention was unlawful.
However, Mr Justice McKechnie added that this judgment could not be seen as one which rendered immune from judicial challenge in this jurisdiction unacceptable laxity by requesting states.
The full judgment is on www.courts.ie