Supreme Court orders release of detainee under European Arrest Warrant Act after ten-day surrender period expires.

THE SUPREME COURT

No. 07/06

Murray C.J.

Denham J.

Fennelly J.

IN THE MATTER OF ARTICLE 40.4 OF THE CONSTITUTION

AND OF THE HABEAS CORPUS ACT, 1782

BETWEEN

MICHÉAL Ó FALLÚIN

APPLICANT/APPELLANT

AND

THE GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

AND

THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM

NOTICE PARTY

JUDGMENT of MR JUSTICE FENNELLY delivered on the 3rd day of May, 2007.

1. This appeal raises an important point concerning the power to detain a person pursuant to the European Arrest Warrant Act, 2003.

Section 16(7) of the Act provides that a person whose surrender to an issuing state has been ordered, but who is not in fact

surrendered within ten days of the coming into effect of that order “shall be released from custody immediately.” May he,

nonetheless, be detained in custody pending an appeal to this Court?

2. There were two appeals before the Court. The first was an appeal against the order directing the Appellant’s surrender. The

second was and still is an appeal against the order of the High Court (Peart J) of 29th November 2005 declining to order his release

pursuant to Article 40.4.2 of the Constitution. The Appellant gave notice shortly before the hearing that he was not pursuing the first

appeal. That appeal has, therefore, been dismissed. The Appellant proceeded with his appeal pursuant to Article 40.4.2. At the end of

the hearing, this Court decided that the respondents had not justified the lawfulness of the continued detention of the Appellant and

it ordered his release. This is the statement of reasons for that decision.

3. On 21st June 2004, District Judge Workman at Bow Street Magistrates’ Court, London, in the United Kingdom, issued a European

Arrest Warrant seeking the arrest and surrender of the Appellant. The warrant alleges that the Appellant had conspired with others to

defraud the United Kingdom Passport Agency by the provision of false passport applications, contrary to common law. The Warrant

requested that the Appellant be arrested and surrendered for the purpose of a criminal prosecution. It was communicated to the Irish

authorities. The Appellant was duly arrested and brought before the High Court in accordance with the provisions of the Act.

4. The Appellant filed a Notice of Objection and raised a number of legal points resisting his surrender. None of these are now

relevant, since the Appellant has withdrawn his appeal against the order for his surrender. The proceedings in the High Court were

conducted before Finlay Geoghegan J, who delivered several judgments. By her order dated 20th October 2005, the learned judge

ordered that the Appellant be surrendered to such person as would be duly authorised by the United Kingdom to receive him and that

he be committed to prison pending the carrying out of the order. The accompanying committal warrant ordered that he be lodged in

Cloverhill Prison “there to be detained by the Governor thereof for a period of not less than fifteen days from the date hereof (except

in the meantime the [Appellant] has consented to his being delivered up in that period) until his delivery as aforesaid and for any

further period as may be necessary under law.”

5. At the conclusion of the hearing in the High Court, that Court had informed the Appellant, as is required by section 16(4) of the

Act of 2003, and as is recited in its order, of his right to make a complaint under Article 40.4.2 of the Constitution at any time before

his surrender to the issuing state (the United Kingdom).

6. The Appellant made no application pursuant to Article 40.4.2 of the Constitution within the period of fifteen days from the making

of the High Court order, during which his surrender to the issuing state was prevented by the order. This fact is central to the

interpretation of section 16(7) of the Act, under which the Appellant claims that he is entitled to be released from custody. However,

on 4th November, one day before the expiry of the fifteen-day period specified in the order, he served notice of appeal to this Court

against the order of Finlay Geoghegan J.

7. On 23rd November 2005 the Appellant obtained a conditional order pursuant to Article 40.4.2 of the Constitution from the High

Court (Peart J) requiring the Respondent Governor to produce the body of the Appellant and to certify in writing the grounds of his

detention. This the Governor did by relying on the committal warrant already referred to.

8. Peart J delivered his judgment on the full hearing of the Article 40 application on 29th November 2005. Having referred to section

16(7) of the Act, Peart J stated: “at first glance, the application seems unanswerable.” He was persuaded, however, by the

arguments of the respondents’ counsel to decline to order the release of the Appellant. His conclusion was based on the fact that,

once there was an appeal to this Court from the order of the High Court, that order "is not an order which for the time being applies

to the applicant." He proceeded: “It is not in force (i.e. enforceable) until that final decision has been made in relation to its

execution.”

9. This appeal is concerned only with the post-order procedures under the Act. Almost all relevant provisions are contained in section

16. 10. Under section 16(1), following all earlier procedures, and being satisfied that there has been compliance with specified statutory

requirements, “the High Court may ……make an order directing that the person be surrendered to such other person as is duly

authorised by the issuing state to receive him…”

11. Section 16(3) provides:

"An order under this section shall not take effect until the expiration of 15 days beginning on the date of the making of

the order."

12. That provision for the postponement of the surrender is to be read together with sub-sections (4) and (6). Sub-section (4)

provides:

"When making an order under this section the High Court shall also make an order committing the person to a prison……

there to remain pending his or her surrender in accordance with the order under this section, and shall inform the person—

(a) that he or she will not, without his or her consent, be surrendered to the issuing state, before the expiration of

the period of 15 days specified in subsection (3), and

(b) of his or her right to make a complaint under Article 40.4.2° of the Constitution at any time before his or her

surrender to the issuing state."

13. Sub-section (6) provides:

"Where a person makes a complaint under Article 40.4.2° of the Constitution, he or she shall not be surrendered to the

issuing state while proceedings relating to the complaint are pending."

14. Finally, section 18(5) provides:

"Where a person makes a complaint under Article 40.4.2° of the Constitution, he or she shall not be surrendered to the

issuing state while proceedings relating to the complaint are pending."

15. The meaning of this statutory scheme is clear. It constitutes a guarantee to a person whose surrender has been ordered by the

High Court that the surrender cannot in fact take place, in the first instance for fifteen days, and then, provided he has made an

Article 40 application, until the proceedings relating to the complaint under Article 40 have been determined. All the provisions so far

cited relate to surrender and not to detention. That is, of course, a vital distinction. Arrest and detention are essential steps in any

form of extradition or surrender, but they depend for their validity on clear legal rules.

16. Before turning to section 16(7), which is the nub of the case, I should refer to sub-section (5), which provides:

17. "Subject to subsection (6) and section 18, a person to whom an order for the time being in force under this section applies shall

be surrendered to the issuing state not later than 10 days after—

(a) the expiration of the period specified in subsection (3), or

(b) such date (being a date that falls after the expiration of that period) as may be agreed by the Central Authority in the

State and the issuing state."

18. In this case, there has been no agreement for surrender on a different date with the issuing state. In fact, Mr Patrick McCarthy,

Senior Counsel, on behalf of the respondents submitted that it would not have been permissible for the state to reach such an

agreement , as there was no “order for the time being in force” in relation to the Appellant.

19. The entire case turns, therefore, on sub-section (7):

"Subject to subsection (9), a person (to whom an order for the time being in force under this section applies) who is not

surrendered to the issuing state in accordance with subsection (5), shall be released from custody immediately upon the

expiration of the 10 days referred to in subsection (5), unless, upon such expiration, proceedings referred to in subsection

(6) are pending."

20. Sub-section (9) does not apply: it deals with a person whose release is not possible, because he or she is in lawful custody in the

state for other reasons. In the absence of an agreement with the issuing state, the period under sub-section (5) remains ten days.

21. Therefore, on the face of it, the Appellant was entitled to be released from custody at the expiry of twenty five days (ten days

after the coming into effect of the order) from the date of the making of the order of Finlay Geoghegan J, namely on 15th November

2005.

22. The respondents, in support of the decision of Peart J, submit that the right to release does not arise. The Appellant has

exercised his right of appeal to this Court. Section 16(12) restricts the constitutional right to appeal to points of law only. It reads as

follows:

"An appeal against an order under this section or a decision not to make such an order may be brought in the Supreme

Court on a point of law only."

23. Nonetheless, however restricted, there is a right of appeal. Mr McCarthy submits that it would be both unlawful and

unconstitutional for the Minister to surrender the Appellant to the issuing state, while his appeal is pending. He submitted that, for the

purposes of sub-section 7, there was no “order for the time being in force under” the section in relation to the Appellant, once he had

served his notice of appeal. Clearly, this is an extremely difficult argument to justify. The order of Finlay Geoghegan J is still in

existence, even though, until the day of the hearing of this appeal, it was under appeal. There was no stay on the order, except in

respect of the fifteen day period provided in the section. Order 58, rule 18provides:

"An appeal to the Supreme Court shall not operate as a stay of execution or of proceedings under the decision appealed

from, except so far as the High Court or the Supreme Court may order……"

24. No stay was obtained in this case. Even if it had been, I am not at all sure that it would have had the effect that the High Court

order was not “in force.” I do not accept, therefore, that there was no order in force under section 16, upon the expiry of the

combined fifteen day and ten day periods specified in the section. It follows also, insofar as it is relevant, that I do not accept Mr

McCarthy’s submission that it was impermissible for the state authorities to agree a different surrender date with the issuing state for

the purposes of section 16(5).

25. Insofar as I can discern the real thrust of the respondents’ argument, it seems to be based on the need to respect the right of

the Appellant to pursue his appeal. It is unusual, to say the least, to find the state arguing that a person should be deprived of one

constitutional right (liberty) in order to protect another (the right of appeal). Moreover, there is no necessary connection between

the Appellant’s right to pursue his appeal and his right to be at liberty while it is pending. The appeal does not depend on his being in

custody. Thus, I find the respondents arguments unconvincing.

26. I return to the words of sub-section (7). It mandates the release of the Appellant. That mandatory obligation is qualified only in

the case that Article 40 proceedings are in being. Section 16(7) ordains release unless such proceedings are in existence and section

18(5) prohibits surrender until they are disposed of. It is noteworthy that the legislature has introduced no such qualification for the

case of a pending appeal. The maxim, expressio unius est exclusio alterius, is strongly supportive of the conclusion that it was not

intended to qualify the release obligation for the case of an appeal. I am satisfied that the Appellant was entitled to be released from

custody immediately upon the expiry of the period of ten days after the coming into effect of the High Court, i.e., twenty five days

after it was made.

27. I would make one final observation. It relates to the obligation of the Court to interpret the Act of 2003 in the light of the Council

Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member states, which the

legislation implements. The obligation to release a person whose surrender has been ordered, if he has not been surrendered ten days

after date of the order comes into effect reflects, subject to the introduction of the fifteen-day period, the provisions of paragraph 5

of Article 23:

"Upon expiry of the time limits referred to in paragraphs 2 [which provides for the ten-day period] to 4, if the person is

still being held in custody he shall be released."

28. The true meaning and intent of that provision has not been argued in this case. It may have to await a decision of the Court of

Justice. The order of this Court is made pursuant only to Article 40.4.2 of the Constitution. It is based on the unlawfulness of the

custody in which the Appellant has been held. The Court makes no decision concerning the status or effect of the surrender

proceedings or of the High Court order.