Court allows appeal where Assistant Commissioner executed warrant without personal production to Commissioner as required by law.

THE SUPREME COURT

130/04

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

AND

The Governor of Cloverhill Prison and the Attorney General

Respondents

Judgment delivered by Mr Justice McCracken on the 13th day of May 2004.

On 18th December 2003 three warrants of arrest were issued against the Appellant by the Crown Court at Kingston-upon-Thames in

England. On 22nd December 2003 these warrants were transmitted to the extradition section of the Garda Siochana at Garda

Headquarters in Phoenix Park in Dublin. It would appear that they were immediately sent to the Attorney General for his consideration

pursuant to s.44 of the Extradition Act 1965, and presumably, although it is not stated in evidence, were also sent to the Minister

under s.44(1) of that Act as amended. On 24th December 2003 it was intimated to the extradition section of the Garda Siochana that

there was no objection to the warrants being executed.

On 2nd December 2004 the warrants were executed by the Assistant Commissioner responsible for the extradition section. It is not in

dispute that the Assistant Commissioner executed this warrant in purported pursuance of the provisions of s.43 of the Extradition Act

1965. There is no evidence that the Assistant Commissioner, or any other person coming within the definition of “the Commissioner”

within the meaning of the 1965 Act ever saw these warrants or had them physically produced prior to 2nd January 2004.

Section 50(1) of the European Arrest Warrant Act 2003 which came into force on 1st January 2004, repealed Part III of the

Extradition Act 1965, including s.43 thereof. Section 50 subsection 2 provided:-

“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 Siochana for the purposes 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.”

Section 42 of the extradition Act 1965 defines “Commissioner” as including a Deputy Commissioner and an Assistant Commissioner for

the purposes of Part III of the Act. Quite clearly, therefore, the reference in s.50(2) of the 2003 Act to production to “the

Commissioner of the Garda Siochana for the purposes of section 43 of the Act of 1965” means production to persons who come

within the definition of “the Commissioner” under s. 42 of the 1965 Act.

Quite clearly the warrants in the present case were not endorsed for execution under Part III of the 1965 Act before 1st January

2004, and therefore the net issue is whether the receipt of the warrants by the extradition section of the Garda Siochana constituted

production to the Commissioner within the meaning of s.50(2)(a) of the 2003 Act.

The Appellant argues that the purpose of s.43 of the 1965 Act is to empower the Commissioner, or somebody coming within the

definition of the Commissioner, to endorse a warrant for execution. He argues, and it is accepted by the Respondent, that the

warrant must be endorsed personally by somebody coming within the definition of “the Commissioner”. It follows that, while the

production of the warrant to the Commissioner may be a separate act from its endorsement, nevertheless, as the purpose of the

production is to enable the Commissioner to perform a personal function in relation to it, therefore the production must also be

personal to the Commissioner.

The Respondent argues that “production” in s.50, and indeed “production” under s.43 of the 1965 Act, is a separate and distinct

phase in the extradition process from the endorsement of the warrant. The Respondent points to the general procedure under the Act

and to the power to direct that the warrant shall not be endorsed which is given to the Attorney General and to the Minister. It is

argued that, when the warrants are received by the extradition section, they are by implication produced to the Commissioner so that

he may ascertain whether there is any objection from the Minister or the Attorney General. In my opinion this view is mistaken. There

is nothing in the Act which imposes an obligation on the Commissioner to make inquiries from the Minister or the Attorney General.

Quite clearly, as a matter of practice, copies of the warrants must be sent to the Minister and the Attorney General, but this is not

an obligation imposed on the Commissioner. It is an administrative function no doubt performed by members of the gardaí in the

extradition section, and must be done as a matter of routine in the case of every warrant which is received in that section. It does

not appear to me to be necessary in any way that the warrant must be produced to the Commissioner, or indeed the Commissioner

must be aware of it, before it is sent to the Minister or the Attorney General.

It is perhaps useful to examine the wording of s.43 further. It provides for the existence of two circumstances before the

Commissioner may endorse the warrant. The first of these relates to the provisions of the warrant itself, and is a factual requirement.

It does not involve any function of the Commissioner. The second is that:-

“On production of the warrant to he Commissioner of the Garda Siochana it appears to the Commissioner that the person

named or described therein may be found in the State.”

This does involve a determination on the part of the Commissioner, but presumably on information supplied to him by members of the

extradition section of the gardaí. The first condition does not require the warrant ever to have been seen by the Commissioner, but

the second condition would appear to require physical production of the warrant to him, as he is required to make a determination in

relation to “the person named or described therein”. I do not think that this provision could be satisfied by an officer of the

extradition section who does not come within the definition of “the Commissioner” making this determination, and therefore the use of

the word “production” in s.43 appears to me clearly to mean production to the Commissioner in person.

I am reinforced in this argument by the fact that s.42 expressly extends the definition of “Commissioner” to a Deputy Commissioner

and to an Assistant Commissioner only. If it had been intended to extend this any further, I have no doubt that the section would

have said so. Accordingly, I am satisfied that, as s.43 requires personal production to the Commissioner, it necessarily follows that

s.50 of the 2003 Act, where it refers to production to the Commissioner for the purposes of s.43, must also refer to personal

production to the Commissioner.

In deference to the Respondent, if feel I should also deal briefly with his submission that regard must be had to the Framework

Decision of 13th June 2002, as the purpose of the European Arrest Warrant Act 2003 was to give effect to this decision. Article 32 of

the Framework Decision, under the heading “Transitional Provision” provides:-

“Extradition requests received before 1st January 2004 will continue to be governed by existing instruments relating to

extradition. Requests received after that date will be governed by the rules adopted by member states pursuant to this

framework decision.”

It is interesting to note that the word used in this Article is “received”. There is no doubt that the warrants in the present case which

would constitute the extradition requests were received in this State before 1st January 2004. I was a little concerned that the

reference to “existing instruments relating to extradition” was to the instruments that were in force at the time the extradition

request was received, which of course in the present case would be the Extradition Act 1965 as amended, and that provisions coming

into force subsequent to the receipt of the extradition request would not be an “existing instrument”. However, on reflection I

consider that the words “will continue to be governed” implies that the instruments referred to are those existing from time to time

after the receipt of the request, and is not limited to those which were in force when the request was received.

Accordingly, I would allow this appeal.