Supreme Court dismisses appeal where self-induced delay in surrender proceedings does not trigger automatic release under European Arrest Warrant Act.

THE SUPREME COURT

Record No. 171/05

Murray C.J.

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 2005

1. This 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 –

(a) Against whom that state intends to bring proceedings for the offence to which the European arrest warrant relates,

or

(b) …

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.”

2. As I will be explaining, the time limit on which the appellant relies is in a particular context contained in the Act and that context is

the “Framework Decision” which is defined in the Act as meaning “Council Framework Decision of 13th June, 2002 on the European

arrest warrant and the surrender procedures between Member States”. The Irish language and English language versions of the text

of the Framework Decision are contained in Part A and Part B respectively of the Schedule to the Act. The logic of the appellant’s

heavy reliance on the inclusion of the words “and the Framework Decision” in section 10 must be that if those words had been

omitted the legal consequences might be quite different and the argument of the state much stronger. For reasons which will emerge

in the course of this judgment, I find myself unimpressed by this line of argument. The difficulties which undoubtedly arise in this case

are not caused or at least not primarily caused by any hasty or faulty draftsmanship in relation to the Act of 2003. That Act is not

happily drafted but the primary question at issue in this case derives essentially from the Framework Decision itself. The issues

relating to the interpretation of the time limit and the consequences of non-compliance in this case could arise in the courts of any

member state of the European Union. In my opinion, there is nothing peculiar to either Irish legislation or the Irish courts system which

confines the problem to Ireland.

3. 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 –

… … … … … … … … … … … … …”

4. The subsection then sets out five conditions including a condition that “the surrender of the person is not prohibited by Part III or

the Framework Decision (including the recitals thereto).” The important point which I want to signpost at this stage is that “a date

for the purpose of section 16” as provided for in section 13 is not just a date of hearing. It is a date of decision. Section 16(1)

expressly contemplates that on the actual date fixed under section 13 the High Court makes the order directing that the person be

surrendered etc.

5. 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.

6. 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. 7. 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.”

8. “Eurojust” is defined in the Act as meaning “the body established by Council Decision of 28th February, 2002 setting up Eurojust

with a view to reinforcing the fight against serious crime.” To understand the context of these two subsections it is necessary to

refer to the provisions of the Council Framework Decision. Article 17 in the English language version of that decision reads as follows:

“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.”

9. It is clear that subsections (10) and (11) of section 16 of the 2003 Act are intended to be implementations of Article 17 of the

Framework Decision. On the argument of counsel for the appellant both in the High Court and in this Court subsection (11) is really

irrelevant because in their submission no extension to ninety days was ever granted. The argument on behalf of the appellant is that

the court was bound by a sixty day time limit and that once that time expired the appellant was entitled to be released. After giving

the matter careful consideration, I have come to the conclusion that that submission cannot be correct.

10. 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.”

11. It is important to make clear, as the High Court judge did in his judgment, that the appellant in relation to his time limit argument

rested his case on the Framework Decision itself and the alleged incorporation of that Framework Decision into the Act and not on the

provisions of section 16 of the Act.

12. 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.”

13. I agree also with that passage though in a sense a stand alone interpretation is irrelevant. I am, however, even more in

agreement with it if it is interpreted as it should be in the light of the Framework Decision.

14. 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.”

15. It would seem to me therefore, that if there was inordinate delay prejudicial to the rights, including fundamental rights of an

arrested person that person might be entitled to be discharged and released. But that is quite different from suggesting that by

reason of the expiration of an unextended sixty day time limit there is an automatic entitlement to release. I am satisfied that upon

the expiration of that period the duty to execute the warrant has not come to an end but continues. Accordingly, it does not lead to

release. Article 1, paragraph 2 of the Framework Decision provides as follows:

“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.”

16. In accordance with the recital already quoted paragraph 3 of the same Article goes on to provide:

“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.”

17. If, therefore, as the learned trial judge believes and, as I also believe, the sixty day and ninety day time limits are with a view to

internal discipline within the member states and not with a view to conferring individual rights in individual cases then this appeal must

fail.

18. 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.

19. 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.

20. 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.

21 For all these reasons, I would dismiss the appeal.