Supreme Court dismisses appeal on European arrest warrant surrender, confirming High Court order despite procedural arguments.

THE SUPREME COURT

APPEAL NO. 234/2004

MURRAY C.J.

DENHAM J.

McGUINNESS J.

HARDIMAN J.

GEOGHEGAN J.

BETWEEN

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

APPLICANT/RESPONDENT

AND

KENNETH DUNDON

RESPONDENT/APPELLANT

Judgment delivered on the 16th day of March, 2005 by Denham J.

1. This appeal raises issues on a European arrest warrant, in particular the undertakings provided by the issuing State pursuant to

s.22 (1) (b) and s.24 of the European Arrest Warrant Act, 2003, hereinafter referred to as the Act.

2. On the 14th day of May, 2004, the High Court (Ó Caoimh J.) ordered, pursuant to s.16 of the Act, that Kenneth Dundon, the

respondent/appellant, hereinafter referred to as the respondent, be surrendered to named persons duly authorised by Thames

Magistrates’ Court to receive him. The Minister for Justice, Equality and Law Reform, the applicant/respondent, is hereafter referred to

as the Minister.

3. On the 29th day of January, 2004 a European arrest warrant was issued by Frances Jane McIvor, a District Judge at Thames

Magistrates’ Court, London, England, for the arrest of the respondent so that he might be prosecuted in England for the offence of

murder. That warrant was faxed to Ireland on the 2nd day of February, 2004, which faxed copy was endorsed for execution in this

jurisdiction by a registrar of the High Court. On the 11th day of February, 2004 the respondent was arrested in Limerick by a member

of An Garda Síochána acting pursuant to the endorsed warrant and the respondent was then brought to the High Court. On the 14th

day of March 2004, the High Court ordered the surrender of the respondent to the authorised officers.

4. The key issue on this appeal is the undertakings. On that matter the learned High Court Judge held:-

“The issue arising in this case is whether the undertakings in question required in these sections is to be understood as an

undertaking to be given personally by the judge or court concerned that is the issuing judicial authority. I accept as correct,

the submission made to this Court that the courts have no function in a decision whether someone will be proceeded with or

prosecuted for an offence.

I believe that a literal approach to the provisions of s.22 and s.24 gives rise to an absurdity and that the court should apply a

purposive interpretation to these sections. In this regard I accept the submissions of counsel for the Minister and I also have regard

to cases applying such a rule such as Director of Public Prosecutions (Ivers) v. Murphy [1999] 1 I.R. 98. In applying such an

approach I believe that this Court must act upon the undertakings furnished by the issuing judicial authority which have been

received in turn from the Director of Public Prosecutions and from the Parliamentary Under Secretary of State. I am also satisfied,

having regard to the terms of the Framework Decision itself and in particular Article 28 para 1 thereof, that if this Court is to decide

on the surrender of the respondent that it is entitled in its decision to indicate that no consent for the surrender of the respondent to

a Member State other than the executing Member State for an offence committed prior to his or her surrender is given. I am further

more satisfied that having regard to the provisions of Article 27 that it is clear that in the instant case the respondent may not be

prosecuted, sentenced or otherwise deprived of his or her liberty of an offence committed prior to his or her surrender other than for

which he is being surrendered. In light of that fact no question arises of this Court giving its consent otherwise. I also take the view

that in light of the fact that it is proposed to proceed against the respondent for the offence of murder that this necessarily entails

that in the context of the matter going to a jury that a verdict may be returned in relation to a lesser offence as indicated in the

undertaking furnished by the Director of Public Prosecutions.”

5. The respondent has filed a Notice of Appeal against the judgment of the High Court with twenty two grounds of appeal. However,

the kernel of the appeal relates to the undertakings required in the Act of 2003.

6. Undertakings in this case

In this case the Issuing Judicial Authority certified:

“I, Frances Jane McIvor hereby certify that I have today received written undertakings made by the Parliamentary Under

Secretary of State, being the competent authority under section 98 of the Extradition Act 2003, and the Director of Public

Prosecutions, as Head of the Crown Prosecution Service of England and Wales, which is responsible for the prosecution of

Kenneth Martin Dundon. The undertakings are attached hereto marked “A” and “B”.

I hereby order that the attached undertakings be forwarded to the appropriate authorities in Ireland by way of annex to section

1 of the European Arrest Warrant issued by me under Part 3 of the Extradition Act 2003 on 29th January, 2004.”

The two undertakings are attached to the certificate. The first is from the Parliamentary Under Secretary of State and states:-

“Kenneth Martin Dundon shall not be extradited to a state other than a Member State of the European Communities (within the

meaning of the European Communities Act 1972), or Gibraltar without the consent of the Irish High Court and of the Irish

Minister for Justice, Equality and Law Reform.

This undertaking is given in accordance with Article 28(4) of the Council of the European Union Framework Decisions on the

European arrest warrant and the surrender procedures between Member States.

Given under the hand of the undersigned, one of Her Majesty’s Parliamentary Under Secretaries of State, this 17th day of

March, 2004.”

The second undertaking is from the Director of Public Prosecutions for England and Wales. It provides:

UNDERTAKING

On 29th day of January 2004 District Judge (Magistrates’ Courts) Frances Jane McIvor, sitting at the Thames Magistrates Court,

issued a warrant under Part III of the Extradition Act 2003 against Kenneth Martin Dundon. The warrant was issued in respect

of an allegation that on 9th October 2003 at 43 Hemsworth Court, Hobbs Place Estate, Hoxton, London N1, England, Kenneth

Martin Dundon murdered Christopher Jacobs.

The prosecution of the said Kenneth Martin Dundon for the said offence is brought by the Crown Prosecution Service of England

and Wales.

As head of the Crown Prosecution Service of England and Wales I hereby UNDERTAKE that, in the event of Kenneth Martin

Dundon being surrendered to the United Kingdom, Kenneth Martin Dundon will not be proceeded against, sentenced or detained

for the purposes of executing a sentence or detention order, or otherwise restricted in his personal freedom or otherwise

subjected to a penalty, for an offence committed before his surrender other than the said offence of murder or any of the

following lesser offences in respect of the death of Christopher Jacobs which are disclosed in the information contained in the

said warrant, and would be alternative verdicts open to the jury at his trial, namely

· Manslaughter;

· Wounding with intent, contrary to Section 18 of the Offences against the Person Act 1861;

· Unlawful wounding, contrary to Section 20 of the Offences against the Persons Act 1861;

· Assault Occasioning Actual Bodily Harm contrary to Section 47 of the Offences against the Person Act 19861, (details

annexed hereto),

before the expiration of a period of 45 days from the date of his final discharge in respect of the offence for which he is

surrendered (or the said lesser offences set out above) during which time he shall be free to leave the issuing United Kingdom,

unless having been so discharged he leaves the United Kingdom and later returns thereto, unless he voluntarily gives his

consent to being so proceeded against or detained or to such a penalty being imposed and is fully aware of the consequences

of so doing, that consent is given before the competent judicial authority in the United Kingdom and he obtains or is given the

opportunity to obtain professional legal advice in the United Kingdom in respect of these matters before so consenting;

Signed:

Ken MacDonald QC

Director of Public Prosecutions for England and Wales

Date: 17th March 2004.”

7. Undertakings required by the Act

Undertakings are required by the Act. This is a safeguard for a person sought which is required by Irish legislation. While, in general,

the legal process of the European arrest warrant under the Act is to give effect to Council Framework Decision of 13th June, 2002

(O.J. L190, 18.07.2002, p.1) the Framework Decision does not require such undertakings. The law as to such undertakings is Irish and

is to be found in the Act. Thus it is the relevant sections of the Act which require to be construed.

8. Law

Section 22(1) (b) of the Act provides:

“22 – (1) Subject to this section, a person shall not be surrendered under this Act unless –

(b) an undertaking in writing is given to the High Court by the issuing judicial authority that the person will not be

proceeded against, sentenced, or detained for the purposes of executing a sentence or detention order, or otherwise

restricted in his or her personal freedom, for an offence committed before his or her surrender other than the offence (in

respect of which he or she is surrendered) specified in the European arrest warrant concerned.”

And s.24 (1) of the Act states:

“24. – (1) A person shall not be surrendered under this Act unless the issuing judicial authority gives an undertaking in writing

that the person will not be extradited to a third state without the consent of the High Court and the Minister.”

The term “issuing judicial authority” is defined in the Act as meaning:

“in relation to a European arrest warrant, the judicial authority in the issuing state that issued the European arrest warrant

concerned.”

“Judicial authority” is defined as follows:

“the judge, magistrate or other person authorised under the law of the Member State concerned to perform functions the

same as or similar to those performed under section 33 by a court in the State;”

9. Submissions on construction of sections on undertakings

The case turns on the construction of s.22 (1) (b) and s.24 (1) of the Act. The respondent submitted that the undertakings are

required to be given by the issuing judicial authority and that undertakings in accordance with the sections had not been given. On

behalf of the Minister it was submitted that to construe the statute as requiring personal undertakings by the judicial authority would

result in an absurdity. It was submitted that the purpose of the two statutory provisions is to provide a safeguard against either a

breach of the specialty rule or re-extradition to third countries. It was further submitted that the Irish legislation requires that there is

a public judicial record of the undertakings provided by the issuing judicial authority to the High Court.

10. Statutory Interpretation

The rules for the construction of statutes are well established. In Howard v. Commissioners of Public Works [1994] 1 I.R. at p.151,

Blayney J. referred to the general principles to be applied in the interpretation of statutes and cited Craies on Statute Law (1971)

(7th Ed) at p.65:

“The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention

expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be

necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best

declare the intention of the lawgiver. ‘The tribunal that has to construe an Act of a legislature, or indeed any other document,

has to determine the intention as expressed by the words used. And in order to understand these words it is natural to enquire

what is the subject/matter with respect to which they are used and the object in view’. [Per Lord Blackburn in Direct United

States Cable Co. v. Anglo – American Telegraph Co. (1877) 2 App. Cas. 394]”.

I have expressed my view before that:

“Statutes should be construed according to the intention expressed in the legislation. The words used in the statute best

declare the intent of the Act. Where the language of the statute is clear we must give effect to it, applying the basic meaning

of the words: Howard v. Commissioners of Public Works [1994] 1 I.R. at p. 162.

In Cross on Statutory Interpretation, Third Edition, at p.40, interpretative aids are given as follows:

“(i) In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or

ordinary meaning of that word or phrase in its context in the statute? It is only when that meaning leads to some result which

cannot reasonably be supposed to have been the intention of the legislature that it is proper to look for some other possible

meaning of the word or phrase.

(ii) Then (in case of doubt) rules of construction are relied on. They are not rules in the ordinary sense of having some binding

force. They are our servants, not our masters. They are aids to construction, presumptions or pointers. Not infrequently one

“rule” points in one direction, another in a different direction. In each case we must look at all relevant circumstances and

decide as a matter of judgment what weight to attach to any particular “rule”.

(iii) It is a cardinal principle applicable to all kinds of statutes that you may not for any reason attach to a statutory provision a

meaning which the words of that provision cannot reasonably bear. If they are capable of more than one meaning, then you can

choose between those meanings, but beyond that you must not go.”

I am satisfied that these aids reflect the legal position in Ireland also and I apply them to this case.

11. Construction of the Act

11.1 Section 22(1) (b) of the Act commences by providing that:

“22 – (1) … a person shall not be surrendered under this Act unless –

(b) an undertaking in writing is given to the High Court by the issuing judicial authority that the person will not be

proceeded against, …”

The clear intent of the Act is to require the undertakings for the benefit of the person sought. At issue in this case is whether the

undertakings have been given appropriately, whether they are required to be given by the issuing judicial authority personally.

Section 22(1) (b) requires that the undertaking be in writing. That has been done. The section then requires that the undertaking in

writing “is given to the High Court” by the issuing judicial authority. The word “given” is the critical term of the section. “Give” is

defined in the New Shorter Oxford English Dictionary as:

“Hand over as a present;

Transfer the possession of gratuitously;

Confer ownership with or without actual delivery.

Bestow allot or donate, give presents.

Confer, grant, bestow…

Grant…

Accord to another …

Deliver, hand over …”

Bearing in mind these definitions of the ordinary meaning of the word ‘give’, I am satisfied that the ordinary meaning of the word

“give” is to hand over, to transfer, to deliver. Thus the section would read that a person shall not be surrendered under this Act

unless -

“An undertaking in writing is handed over (or, is transferred, or, is delivered) to the High Court by the issuing judicial authority

that the person will not be proceeded against, …”

There is no ordinary meaning that an undertaken “given” has to be made by the issuing judicial authority. It is required to be handed

over, transferred or delivered, by the issuing judicial authority. Thus I am satisfied that the certificate in this case, from the issuing

judicial authority, with the attached undertakings from the two relevant authorities, meets the requirement under the Act.

As the meaning of s. 22(1) (b) is clear from the ordinary language there is no need to apply any other rules of construction. However,

it is notable that the construction of the ordinary meaning of the words of the section is confirmed by a purposive approach to the

section. The section requires that the requested person be protected by the existence of these undertakings. It is appropriate that

the undertakings come from those who have authority to make such undertakings, rather than the issuing judicial authority personally,

but that they be transferred under the certificate of the issuing judicial authority. This construction is consistent with the intention of

the Oireachtas to provide protection to the requested person.

11.2 A subsidiary point arose on the construction of the section. The section requires that the person will not be proceeded against

for an offence committed before his surrender other than the offence specified in the European arrest warrant. This provision is not in

issue – the applicant is sought for the offence of murder and will be proceeded against on that offence. However, an issue has arisen

as to his possible sentence. If he is proceeded against and convicted of murder nothing arises. There is the possibility, however, that

a jury may decide to find him guilty of a lesser offence. The undertaking from the Director of Public Prosecutions of England and Wales

addresses this issue. He notes the lesser offences in respect of the death of Christopher Jacobs which would be alternative verdicts

open to the jury, being manslaughter, wounding with intent, unlawful wounding and assault occasioning actual bodily harm. This is a

legal process known to our legal system where it is also open to a jury to find an accused guilty of a lesser offence – and for which

there is a lesser sentence.

I am satisfied, in view of the facts of this case and the terms of the undertaking of the Director of Public Prosecutions for England

and Wales, that the word ‘sentence’ in s.22 (1) (b) includes a sentence for a lesser offence which is open to the jury to find on the

facts of the offence for which he is returned. The section clearly envisages that the person should not be proceeded against for an

offence other than specified in the European arrest warrant, which offence related to an event. If, as here, arising out of the event

alleged, it is possible for the legal system to find a lesser offence, then it is consistent with the concept of justice that this

alternative be open for the person sought. While he may only be tried for the offence on the warrant, the term ‘sentence’

encompasses a sentence for a lesser offence found by the jury. However, I make this decision specifically in light of the facts and

documents furnished in this case.

11.3 Section 24(1) of the Act also uses the word ‘give’. It states:

24.—(1) A person shall not be surrendered under this Act unless the issuing judicial authority gives an undertaking in writing

that the person will not be extradited to a third state without the consent of the High Court and the Minister.

For the reasons set out above I am satisfied that this section means that the undertaking is required to be handed over, transferred

or delivered by the issuing judicial authority. Thus the undertaking of the Director of Public Prosecutions of England and Wales

attached to the certificate of the issuing judicial authority meets the requirement of the section.

11.4 Conclusion on Undertakings

In conclusion on this aspect of the appeal, I am satisfied that the respondent has not made out a successful case on appeal.

Consequently, I would dismiss the appeal on all the grounds relating to the undertakings.

12. Other Grounds

The respondent raised several other grounds of appeal. However, none were pressed as strongly as the submissions raised on the

issue of the undertakings, and I would dismiss them all.

12.1 It was submitted that the learned High Court Judge erred in granting an adjournment in circumstances where it was sought for

the purposes of allowing the English authorities to decide whether and in what form they were going to provide undertakings. Two

matters are of relevance to this issue. This case arose shortly after the European Arrest Warrant Act 2003 came into effect. Also, the

requirement of undertakings is a matter arising on the Irish legislation and not the Framework Decision. Thus, difficulties in coming to

grips with the new system (which replaced the backing of warrants procedure which had existed between England and Wales and

Ireland, amongst others, under the Extradition Act, 1965) may be a relevant factor at that time. Further, the adjournment for these

documents has to be viewed in the context of the overall time frame in which this case has proceeded and adjournments sought and

obtained. I am satisfied that it is not good practice, subject to exceptional circumstances, for proceedings under the Act to be moved

unless the documents are in order. However, in the circumstances of this case the learned trial judge acted within his discretion by

permitting the short adjournment and I would not interfere with his decision.

12.2 The respondent also submitted as a ground of appeal that the application was brought in the wrong name – that of the Attorney

General instead of the Minister for Justice, Equality and Law Reform. The High Court stated that when the case first came before the

Court there appeared to be some confusion as to who was the moving party. It was clarified by counsel that they acted for the

Central Authority being the Minister, and the High Court indicated that his name should be inserted in the documentation. While some

of the documents contained the name of the Attorney General, the learned High Court Judge was satisfied that in no circumstances

should he dispose of the case based upon that matter as the substance of the case had been put forward to the Court by the

Central Authority being the Minister. I am satisfied that the learned High Court Judge acted within his discretion in so ordering and I

would confirm the decision of the High Court and dismiss this ground of appeal also.

12.3 Counsel for the respondent also raised a ‘strength of the case argument’. It was submitted that the learned trial judge erred in

finding that there was no requirement to consider the case against the respondent. It was argued by counsel that this was a one

witness case and that that witness has resiled from her statement and, as his wife, is not compellable.

I would first of all note on the facts that there is no basis to find that this is a one witness case. However, on the law I am satisfied

that the adequacy of the evidence against the person sought is not a matter for consideration on these proceedings under the Act.

Further, there is no requirement that the requesting state establish a prima facie case. Consequently, I would dismiss this ground of

appeal and confirm the finding of the High Court.

12.4 Finally, counsel for the respondent submitted that the learned trial judge failed to have regard to the fact that the warrant was

a facsimile and had not been delivered in accordance with the Act. In this respect counsel for the respondent relied on s. 12(4) of the

Act which provides that “…an issuing judicial authority shall be deemed to have complied with subsection (1) if facsimile copies of -”

an arrest warrant “are transmitted in accordance with regulations (if any) under subsection (10), … by means of a facsimile machine

in respect of which there is compliance with such regulations”. Counsel submitted that since no such regulations had been made

therefore the warrant was not transmitted by means of a facsimile machine which complied with regulations. Counsel for the

respondent agreed that it was an unmeritorious point but argued that the legislature had deemed what should happen. However, it is

evident that when the subsection refers to “compliance with such regulations” as regard the facsimile machine it is only referring to

the “regulations (if any)” as may have been made pursuant to subsection (10). It is quite clear that the subsection was intended to

operate in the absence of and pending the making of regulations, if any. It is only in the event of such regulations being made that

the question of compliance with them could arise. No such regulations having been made the question on non-compliance does not

arise and this ground of appeal must also fail.

13. Decision

For the reasons given I would dismiss the appeal of the respondent and confirm the order of the High Court that the respondent be

surrendered to Detective Constable Debbie Thompson or Detective Sergeant John Elliott (being persons duly authorised by Thames

Magistrates’ Court to receive him).