Supreme Court allows appeal, holding warrants void due to failure to produce to Commissioner under s. 43.

THE SUPREME COURT

[S.C. NO. 130 OF 2004]

Denham J.

Fennelly J.

McCracken J.

IN THE MATTER OF AN APPLICATION FOR AN INQUIRY UNDER ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN/

THOMAS JAMES O’ROURKE

APPLICANT/APPELLANT

AND

THE GOVERNOR OF CLOVERHILL PRISON AND

THE ATTORNEY GENERAL

RESPONDENTS

Judgment delivered on the 13th day of May, 2004 by Denham J.

1. Appeal

Thomas James O’Rourke, the applicant/appellant, hereinafter referred to as the applicant, has brought this appeal against the decision

of the High Court (Peart J.) delivered on the 26th February, 2004 which held that the applicant is being detained in accordance with

law and refused his application for release under article 40.4.2 of the Constitution.

2. Facts on Arrest

The facts on the arrest of the applicant are not in issue and were set out fully by the High Court, as follows:

“The applicant was arrested in this jurisdiction on the 13th January, 2004 on foot of three warrants of arrest which was issued

on the 18th December, 2003 by the Crown Court at Kingston Upon Thames, England. These warrants are in respect of charges

of robbery, conspiracy to rob, and agreeing to do certain acts with intent to pervert the course of justice. The offences are

said to have been committed between September, 2001 and January, 2002.

Upon his arrest he was brought before the High Court on 13th January, 2004, pursuant to the provisions of section 45 of the

Extradition Act, 1965, as amended (‘the 1965 Act’).

Thereafter he has been remanded in custody pending the hearing of the application for an order for his rendition to the United

Kingdom pursuant to the provisions of section 47 of the 1965 Act.”

3. Facts as to system operated by Commissioner

The facts as to the receipt of the warrants and the system operated by the Commissioner was deposed to by Sergeant Michael

Heffernan, as follows:

“…the originals of the said warrants were received at Garda Headquarters from the Metropolitan Police on the 22nd December,

2003 and endorsed for execution by Assistant Commissioner Egan on the 2nd January, 2004. I say and believe that the receipt

of the said original warrants on the 22nd December, 2003 by Garda Headquarters amounts to a production of the warrants to

the Commissioner for the purpose of section 43 of the Extradition Act, 1965 as amended.

3. For the assistance of this Honourable Court I can set out the operational mechanics of the Garda Síochána Extradition

Section. I say that a separate Extradition Section operates within the Garda Síochána and is located at Garda Headquarters in

the Phoenix Park. I say that when warrants are received in the Extradition Section they are received there on behalf of the

Assistant Commissioner with responsibility for extradition. The warrants, in the case of those coming from the United Kingdom, if

it appears that the person may be in the State or may intend to enter the State, shall be endorsed for execution, subject to

the provisions of the Extradition Act, 1965. For the purposes of considering whether the Attorney General will give a direction as

set out in section 44 of the said Act the warrants must be sent to the Attorney General for his consideration. On receipt of the

present warrants on the 22nd December, 2003 the copy warrants and supporting documentation were sent on the same date to

the office of the Attorney General for the purposes of section 44 of the Extradition Act, 1965 as amended would be given (sic).

Pursuant to instructions from the Attorney General on the 24th December, 2003 the warrants were ready to be endorsed. They

were subsequently endorsed on the 2nd January, 2004, having already been produced for production on the 22nd December,

2003.”

4. Question of Law

At issue in the High Court, and in this court on appeal, is a question of law. On behalf of the applicant it was submitted that after the

coming into force of the European Arrest Warrant Act, 2003, hereinafter referred to as the Act of 2003, on the 1st January, 2004, the

applicant may not be dealt with under the provisions of Part III of the Extradition Act, 1965, as amended, hereinafter referred to as

the Act of 1965, as that Part has been repealed by s. 50 of the Act of 2003, save in limited circumstances, provided for in s. 50 (2)

(a) and (b) of the Act of 2003 which, it was submitted on behalf of the applicant, do not apply to this case. Consequently, it was

submitted on behalf of the applicant, the Assistant Commissioner of An Garda Síochána who endorsed the warrants on 2nd January,

2004 was not entitled to do so under s. 43 of the Act of 1965.

5. Law

The European Arrest Warrant Act, 2003 is an Act to bring into effect a European Union Council framework decision of 13th June, 2002

on the European Arrest Warrant and the surrender procedures between member states, to amend the Extradition Act, 1965 and to

provide for connected matters. The Act of 2003 states in s. 1 (2) that the Act comes into operation on 1st January, 2004. The

application of the Act is set out in s. 4 (1) which provides:

“Subject to subsections (2) and (3), this Act shall apply in relation to an offence, whether committed or alleged to have been

committed before or after the commencement of this Act.”

Subsections (2) and (3) are not relevant to this case. Thus, the 2003 Act provides that it will apply to an offence whether alleged to

have been committed before or after the 1st January, 2004, and the offences in this case were alleged to have been committed prior

to 1st January, 2004. However, in repealing the Act of 1965, the Act of 2003 made provision as follows:

“50.(1) Part III of the Act of 1965 is repealed.

(2) Where, before the commencement of this Act, a warrant issued by a judicial authority in a place in relation to which Part III

of the Act of 1965 applies was-

(a) produced to the Commissioner of the Garda Síochána for the purpose of section 43 of the Act of 1965, or

(b) endorsed for execution under that Part,

then, notwithstanding the repeal of the said Part III effected by subsection (1), that Part shall, on and after the said

commencement, continue to apply in relation to that warrant and the person named in that warrant shall be dealt with under

and in accordance with that Part.”

It is this section which the respondents submit applies to this case. The warrants were not endorsed before 1st January, 2004 and so

s. 50 (2) (b) does not apply.

At issue is whether s. 50 (2) (a) of the Act of 2003 applies. It is clear that the words “produced” and “for the purposes of s. 43 of

the Act of 1965” are at the core of the case. The person to whom the warrant is “produced” is also important. The Act of 2003

exempts from the procedures under that Act a warrant which was issued by a judicial authority in a place to which Part III of the Act

of 1965 applies where prior to 1st January, 2004 it was produced to the Commissioner of the Garda Síochána for the purposes of s. 43

of the Act of 1965.

6. “Produced”

Section 50 (2) of the Act of 2003 refers to a warrant which, before the 1st January, 2004, was “produced” to the Commissioner of

the Garda Síochána for the purposes of s. 43 of the Act of 1965. Thus, the Act of 2003 exempts from that Act a warrant which was

issued by a judicial authority in a place to which Part III of the Act of 1965 applies where prior to 1st January, 2004 it was produced

to the Commissioner of the Garda Síochána for the purposes of s. 43 of the Act of 1943. The question then is whether before 1st

January, 2004 the warrants were “produced to the Commissioner of the Garda Síochána for the purposes of section 43 of the Act of

1965.” The relevant facts, as found by the learned trial judge, and not contested, were as follows:

“…the evidence of Sgt. Michael Heffernan of An Garda Síochána is that these warrants were received in the office of the

Commissioner of An Garda Síochána at Garda Headquarters from the Metropolitan Police on the 22nd December, 2003. He has

stated that upon receipt of the warrants, on that date, copies were sent to the Attorney General for the purpose of obtaining a

direction, if any, from the Attorney General, as is required by section 44 of the 1965 Act, as amended. Having heard back from

the Attorney General on the 24th December, 2003, the warrants were duly endorsed by the Assistant Commissioner on the 2nd

January, 2004.”

The evidence was that the warrants were received in the office of the Commissioner of An Garda Síochána on the 22nd December,

2003. No evidence was given that the warrants were produced to, or considered by, the Commissioner or other person designated by

the legislation.

7. Commissioner

In the Act of 1965, the designated persons are specifically defined. Section 42 of the Act of 1965 provides that “Commissioner of the

Garda Síochána” and “Commissioner” include a Deputy Commissioner and an Assistant Commissioner. Section 43 of the Act of 1965

and s. 50 of the Act of 2003 must be interpreted in light of that statutory definition. The legislation provides that designated persons

carry out the functions stated.

8. Minister

The Act also provides for an executive role in the process. Section 44 (1) of the Act of 1965 states:

“A warrant shall not be endorsed for execution under this Part if the Minister or the High Court, on the question being referred

to the Court by the Minister, directs in accordance with this section that it shall not be so endorsed.”

It is clear that it is envisaged under the Act of 1965 that the Minister shall have a view on the warrant. The Minister is the Minister

for Justice. It is also plain that the view of the Minister should be obtained prior to endorsement as the Act is mandatory that the

Commissioner shall not endorse the warrant for execution if the Minister so directs. Consequently, a process of several stages is

envisaged in s. 43 of the Act of 1965 and indeed in s. 50 of the Act of 2003.

9. High Court Judgment

Having referred to s. 44 (1) of the Act of 1965 the learned High Court judge held:

“This section makes it quite clear that before the Commissioner is permitted to endorse the warrants for execution under the

provisions of section 43 (1) (b) of the 1965 Act, he must consult the Minister after the warrants have been received by him.

There is therefore a two-step process involved. Clearly section 44 does not come into play until the warrants have been

produced to the Commissioner, since until he has the warrant he cannot refer it to the Minister for his direction under section

44 of the Act. In my view therefore, it cannot be so that the ‘production’ of the warrant to the Commissioner after the Minister

has been consulted is what constitutes the warrant being ‘produced’ to the Commissioner for the purposes of section 43 (2) (b)

of the 1965 Act. Otherwise there is no legal basis for the Commissioner referring the matter on to the Minister.

The scheme of the Act, in my view, does not envisage that the views of the Minister are to be obtained other than by the

Commissioner contacting him in that regard following the production of the warrant to him.”

I am satisfied that this is a correct statement of the law.

10. Submissions

On behalf of the applicant, counsel submitted that the receipt of the warrant in the office of the Commissioner on 22nd December,

2003 was not “production” pursuant to s. 43 (1) (b) of the 1965 Act. At that time staff in the office dealt with the warrants. It was

submitted that the warrants were not “produced” to the Commissioner until they were before him on 2nd January, 2004, in which case

the 1965 Act does not apply and the applicant is in unlawful detention. Counsel submitted that the Commissioner was not mandated

to obtain the view of the Minister, that the section is prohibitory. Also, it was submitted, that as the “Commissioner” is defined in the

Act, the receipt of the warrants in the office of the Commissioner was not production under s. 43 (1) (b) of the 1965 Act.

On behalf of the respondents it was submitted that the interpretation in the judgment of the High Court was correct. It was

submitted that the procedure under the Act of 1965 envisages production and endorsement as being two separate and distinct

phrases in the extradition process. In this case the warrants were received in the Extradition Section at Garda Headquarters on behalf

of the Assistant Commissioner with responsibility for extradition. It was submitted that the receipt of the warrants is the production

to the Commissioner.

11. Core

At the core of this case is whether the receipt of the warrant in the extradition division of Garda Headquarters was such that it was

“produced to the Commissioner of the Garda Síochána for the purposes of s. 43 of the Act of 1965”: s. 50 (1) (a) of the Act of 2003.

12. National Law

At issue in this case is the interpretation of national law. The Act of 1965 governed rendition between the jurisdictions of England and

Wales and Ireland until the Act of 2003 came into effect. The Act of 2003 became applicable from 1st January, 2004. It retained

certain saving clauses for cases then being processed. The Act of 2003 provided that in certain circumstances the Act of 2003 would

not apply, that the Act of 1965 would still be applicable. One of the savers of the prior law of the Act of 1965 was where a warrant

issued in a relevant jurisdiction was produced to the Commissioner of the Garda Síochána before 1st January, 2004 for the purposes

of s. 43 of the Act of 1965.

The Act of 2003 does not define “produced.” The Act of 1965 does not define “production.” However, the term “produce” is defined in

the Concise Oxford Dictionary as:

“1. bring forward for consideration, inspection or use.”

…

Stroud’s Judicial Dictionary, 6th edition, 2071 states that:

“to produce a thing to a person, semble, means to show it to him personally and does not involve the idea that the possession

of it is to be parted with.”

I am satisfied that the ordinary meaning of “produce” is to bring forward for consideration. Section 43 provides for “production.” The

production is for consideration. Consideration follows on the production.

Section 43 (1) (b) of the Act of 1965 states plainly that “on production of the warrant to the Commissioner.” Thus the plain words of

the section require that the production be to the person designated. This is consistent with the importance of the duty of considering

the warrant for endorsement as to whether a person be delivered out of the jurisdiction.

The words of s. 43 (1) (b) then go on to give functions to the Commissioner stating where “it appears to the Commissioner that the

person named or described therein may be found in the State.” Thus, in his consideration, the Commissioner has to examine whether

the person may be found in the State. Clearly, inquiries (even if initial inquires may have been made) are required under this section.

These inquiries are envisaged as being made between the production of the warrant and its endorsement. Such inquires may be short,

for example if the person is in an Irish prison, or longer if more information needs to be sought.

The issue in this case is whether the warrants were “produced” to the Commissioner for the purposes of s. 43 before 1st January,

2004. The evidence is that they were “received” in the Extradition Unit by other persons, on behalf of a designated person. The

question is whether they were “produced” for the purposes of the law. If the transitional arrangements were to relate to endorsed

warrants only, then the legislation would have said so. However, that is not the situation. The legislative arrangements relate also to

warrants which have been produced, but were not yet endorsed, for the purpose of s. 43 of the Act of 1965. This refers to warrants

at an earlier stage in the scheme under the Act of 1965; such warrants may still be processed under the procedure in Part III of the

Act of 1965. This meaning is clear from the plain words of s. 50 of the Act of 1965. It is also clear from the plain words of the

legislation that it is a sequential process which commences with the warrants being produced to the designated person.

A Step Too Far

There was no evidence that the warrants were produced to the Commissioner, or any of the persons who, under the Act of 1965, are

designated persons, to carry out the function described in s. 43, prior to 1st January, 2004. The evidence was that the warrants had

been received in the Extradition Unit in Garda Headquarters. Essentially, the court was requested to infer that there had been

“production” of the warrants. However, only the designated persons are enabled to carry out the functions set out in s. 43 and there

was no evidence of even receipt by those persons in 2003. Whatever about considering inferring receipt by designated persons in

such circumstances, the court must address the issue of “production” for the purposes of s. 43 of the Act of 1965. Receipt of the

warrants by non-designated persons is so far removed from the concept of production of the warrants to a designated person that I

am satisfied it may not be inferred. It would be a step too far from the clear words of the statute.

Further, it is clear that s. 43 envisages that the warrants be produced to the Commissioner for the purpose of endorsement. There

would be a time lapse between production of a warrant and its endorsement. It may well be that contact was made prior to the

production of the warrant both between relevant persons of the two jurisdictions, and between relevant persons within this

jurisdiction, thus reducing potential delay when the warrants are produced. However, specific matters have to be attended to

between the production of the warrants and their endorsement. This is reflected in the saver at s. 50 (2) (b) of the Act of 2003.

There is no evidence that there was production of the warrants to a Commissioner, or other designated person, prior to 1st January,

2004.

The words in s. 50 of the Act of 2003 are clear and unambiguous – they provide that the Act of 1965 is repealed save where the

warrants were produced to the Commissioner for the purposes of s. 43 of the Act of 1965 prior to 1st January, 2004. Consequently,

national law, that is s. 43 of the Act of 1965, applies when warrants were produced to the Commissioner prior to 1st January, 2004. It

is then a matter of construction of the legislation to determine the meaning of “production.”

The law on the interpretation of statutes, and the approach to be taken by the courts is well established: Howard v. Commissioners

for Public Works [1994] 1 I.R. 101, Grealis and Corbett v. The Director of Public Prosecutions and the Attorney General [2001] 3 I.R.

144 at p. 176; and I do not intend to reopen that area of the law. It is the duty of the court to give effect to the intention of the

legislature. That intent is obtained from the words of the legislation. If the legislation is clear and unambiguous, the intent is plain. In

this case the words are clear and unambiguous and the intent of the legislature is clear. It gave a function to specially designated

persons. Those persons only may carry out the functions in s. 43 of the Act of 1965. The legislation required production of the

warrants to those persons. Receipt by others could not be production to the designated persons. As all the evidence in this case

shows that there was receipt by others during the relevant time and production to the designated person only outside the permitted

time, it is clear that s. 43 does not apply.

Consequently, I am satisfied that the saver in the Act of 2003, applying the law in the Act of 1965, does not apply. On the evidence

before the court both the production to, and endorsement by, the Commissioner were in January, 2004. This means that the

applicable law was not that of the Act of 1965. Consequently, the warrants are void. I am satisfied that in light of the clear and

unambiguous words of s. 43 of the Act of 1965 it should be interpreted on its plain words to which the ordinary meaning should be

given. In these circumstances the warrants were not produced to the Commissioner in 2003 and therefore the Act of 1965 does not

apply. Consequently, the warrants are not lawful.

13. Transitional Provisions

The court was referred to the transitional provisions and the reference to requests received before 1st January, 2004. It is expressed

clearly in the transitional provisions of the Council Framework Decision of 13th June, 2002 that extradition requests received before

1st January, 2004 will continue to be governed by existing instruments relating to extradition. These warrants were received prior to

1st January, 2004. The relevant national law is s. 50 of the Act of 2003 which reflects the Council Framework Decision and requires

that where before 1st January, 2004 the warrants were produced to the Commissioner for the purposes of s. 43 of the Act of 1965,

that Act applies. This requires consideration of the national law in s. 43 of the Act of 1965. On so doing, I am satisfied, as analysed

above, that the warrants were not produced to the Commissioner for the purposes of s. 43 within the required timeframe.

14. Conclusion

For the reasons given I would allow the appeal and order the release of the applicant. Nothing in this judgment should be construed

as a bar to procedures under the new legislation. It remains open to the relevant authorities to consider proceeding under the Act of

2003.