Supreme Court refuses surrender to France for murder trial pending under Irish domestic law. Appeal allowed against High Court order.

THE SUPREME COURT

Appeal No. 174/2011

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

O’Donnell J.

BETWEEN:

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Applicant/Respondent

AND

IAN BAILEY

Respondent/Applicant

JUDGMENT of Mr. Justice Fennelly delivered the 1st day of March 2012.

1. On the night of 22nd – 23rd December 1996 Madame Sophie Toscan Du Plantier, a French citizen, was brutally murdered at or near

her home in Schull, County Cork.

2. Nobody has ever been charged with her murder. However, France wishes to pursue a prosecution against the appellant, a citizen of

the United Kingdom, who is resident in Ireland. A French judicial authority has issued a European arrest warrant seeking the surrender

of the appellant to France for that purpose. Under French law, such a prosecution is, in principle, possible. France exercises extra-

territorial jurisdiction in respect of crimes, including murder, committed against French citizens, regardless of the nationality of the

perpetrator. Irish law on extra-territorial criminal jurisdiction is the converse. In the case of murder, it will exercise extra-territorial

jurisdiction over an Irish citizen, regardless of the nationality of the victim. In the first case, the citizenship of the victim and in the

second case that of the alleged perpetrator determines jurisdiction.

3. The present case presents the further complicating feature that the crime, while committed outside France, was committed, not in

a territory outside Ireland, but in Ireland itself. Thus, the State would have been in a position to prosecute the appellant for the crime

here. However, although the appellant was at one time regarded as a suspect, the responsible prosecuting authority, the Director of

Public Prosecutions, (“the DPP”) has, on at least two occasions, firmly decided that there is no sufficient evidence to warrant

charging him. In the state of the law as it existed under the Act of 2003 in its original form, section 42 of the Act would have acted

as a bar to his surrender. That provision was removed by amending legislation in 2005. Furthermore, Ireland has not implemented the

option, available to the State in the Framework Decision, to refuse to surrender for offences committed or deemed to have been

committed in Ireland.

4. Both the Framework Decision on the European Arrest Warrant and the European Arrest Warrant Act, 2003 contain provisions

relevant to the surrender of persons sought in respect of extra-territorial offences. The latter contains an imperfectly expressed

embodiment of the former. The European Convention on Extradition of 1957 previously catered for the matter and was reflected in

Irish law by the Extradition Act, 1965. It is unclear whether a principle of reciprocity underlies the extradition of suspects accused of

committing extra-territorial offences. There is certainly no reciprocity between the French and Irish positions regarding the

prosecution of extra-territorial offences.

5. The Framework Decision is, of course, a measure of European Union law, whose interpretation can be determined finally only by the

Court of Justice of the European Union. The Act of 2003 must be interpreted in conformity with the Framework Decision. However,

this Court has not been given the authority to refer questions of interpretation to that Court. It will not have that power until 2014.

Nor has the Court of Justice to date had occasion to pronounce on the legal issue which is before this Court. Thus, this Court must

interpret the Framework Decision and the Irish implementing Act, without the assistance of the Court to which final interpretative

authority has been assigned.

6. These remarks are made in a context where the appellant objects to his surrender to France in reliance on section 44 of the Act of

2003. His objection failed in the High Court. He appeals to this Court with the benefit of a certificate from the High Court that the

point is a matter of exceptional public importance.

7. For present purposes, as the Chief Justice explains in her judgment, there are four principal legal issues for consideration. They are:

a. Whether the surrender of the appellant is prohibited by s. 44 of the Act of 2003;

b. Whether the appellant is entitled to object to his surrender pursuant to s. 42 of the Act of 2003 by reason of the legal

effects of the decision of the DPP not to prosecute him;

c. Whether the Court is obliged to refuse to surrender the appellant on the ground that no decision has been made to

charge and to try him in France;

d. Whether there has been abuse of process by the Irish State authorities, for the purposes of s. 37 of the Act of 2003.

In this judgment, I will deal with the issues mentioned at (a) and (c) above. I agree with the Chief Justice and with O’Donnell J that

the appellant is not entitled to succeed on this appeal pursuant to s. 42 of the Act (ground (b)). I also agree with the Chief Justice

that it is unnecessary to deal with the issues raised under s. 37 of the Act of 2003.

The proceedings to date

8. The European Arrest Warrant was issued in France on 19th February 2010 and transmitted to the Central Authority here for

execution. On the 23rd April 2010, it was endorsed for execution by the High Court. The respondent was arrested and brought before

the High Court.

9. The appellant included, in his Statement of Points of Objection before the High Court a claim that his surrender ought not to be

granted because:

“It [his surrender] is contrary to section 44 of the Act of 2003 (as construed in conformity with Article 4(7)(b) of the Framework

Decision)…..as the alleged crime was committed outside the territory of the issuing Member State (France) and the law of the

executing Member State (Ireland) does not allow prosecution for the same offence when committed outside its territory, as the

[appellant] is not an Irish citizen.”

10. Section 44 of the Act of 2003 provides as follows:

“A person shall not be surrendered under this Act if the offence specified in the European arrest warrant issued in respect of him or

her was committed or is alleged to have been committed in a place other than the issuing state and the act or omission of which the

offence consists does not, by virtue of having been committed in a place other than the State, constitute an offence under the law

of the State.”

11. Peart J heard the application in the High Court and on the 18th March, 2011, delivered a judgment in which he ordered the

surrender of the appellant to the French authorities.

12. Peart J noted particularly that a file had been sent to the DPP and that a decision had been made not to prosecute the appellant

on any charge relating to the death of Mme. du Plantier. A letter dated 5th July 2010 to the appellant’s solicitor, confirmed that the

file had been reviewed on a number of occasions, most recently in 2007, and that “on all occasions the original decision not to

prosecute [the appellant] was confirmed”.

13. Counsel for the Minister argued in the High Court, as he has in this Court, that section 44 does not apply to the present

application for surrender, because the offence was committed in the State. In other words the section applies only when the offence

in the warrant was committed in a place other than the State.

14. Peart J rejected that submission. The section means, he held, that surrender is prohibited, where two conditions are met: firstly,

the offence alleged in the warrant, was committed outside the issuing state, France in this case; secondly, under the law of the

executing State, here Ireland, the same offence, when committed outside Ireland, does not constitute an offence under Irish law.

The learned judge noted that in his experience--and he has extensive experience of European arrest warrant cases--this case was

unique, in as much as the offence was committed not just outside the issuing state but in the executing state.

15. Having thus rejected the primary submission of the Minister, the learned judge, nonetheless, accepted a modified version of it.

16. Firstly, he noted the submission made on behalf of the appellant to the effect that section 44 is based on the principle of

reciprocity which requires that one state should not be required to extradite a person for an offence if it could not request extradition

for the same offence were the roles reversed, and that the principle is directed at ensuring an almost perfect balance of mutual

obligations between states. He recalled his own earlier decision in Minister for Justice, Equality and Law Reform v. Aamond [2006]

IEHC 382 (High Court, 24th November 2006) where the offences in a Danish European arrest warrant were alleged to have been

committed outside the territory of Denmark (but not in Ireland) – in a third state. An earlier request for Mr Aamond’s extradition under

the provisions of the Extradition Act, 1965 had been considered by this Court in Aamond v Smithwick [1995] 1 ILRM 61, which I will

discuss later.

17. Counsel for the Minister submitted that the interpretation of section 44 contended for by the appellants failed to give effect to

the objective of Article 4.7 of the Framework Decision.

18. The Minister argued that there is nothing in Irish law to prevent surrender where the offence alleged in the warrant was

committed in Ireland. Ireland, as a Member State, could have but did not exercise the option conferred by Article 4.7(a) of the

Framework Decision. That would have enabled the State, in implementing the Framework Decision, to include in Irish law a ground of

refusal of surrender in cases where the offence was regarded by the law of Ireland, as the executing Member State, as having been

committed in part or in whole in the territory of the State. The Minister referred to section 42 of the Act of 2003, as amended in

2005, which provides for a prohibition of surrender for offences under Irish law in two instances only. They are, firstly, where the DPP

is considering, but has not yet decided, whether to bring proceedings against the person whose surrender is sought for the offence,

(section 42(a)) and, secondly, where proceedings have in fact been brought in the State (section 42(b)). Neither of these provisions

applies in the present case.

19. Counsel for the Minister submitted that, it was clearly not the intention of the Oireachtas that a person would not be surrendered

simply because the offence for which he is sought had been committed in this State: otherwise the Act of 2003 would have so

provided. Section 44 had not given effect to the objective of Article 4.7(a) and regard should be had to the over-riding objective of

surrender pursuant to Article 2.

20. The learned judge accepted these submissions as being broadly correct and that there was nothing within the Framework Decision

to suggest, much less require, that the surrender of the respondent to France be prohibited. Section 42 would have been the obvious

place to provide for an optional ground for refusal where the offence is regarded by Irish law as having been committed in part or in

whole in the territory of the State.

21. Peart J expressed his conclusion on this issue as follows:

“But in reaching a conclusion on this issue the Court must look at the entire Act and the Framework Decision and interpret section 44

by reference to any other relevant sections of the Act of 2003, and in the light of the aims and objectives of the Framework Decision.

If one has regard to the manner in which section 42 has been enacted, and has regard also to the absence of any provision of the

Framework Decision which requires that surrender be refused in the circumstances of this particular offence, it is not contra legem to

hold that section 44 of the Act of 2003 prohibits surrender in respect of offences which are committed in a country other than the

issuing state and other than this State (i.e. in a third state), and where under the law of this State such an offence does not, by

reason of having been committed in a third state, constitute an offence. That does not do violence to section 44 when one considers

section 42 and the Framework Decision in tandem with it.” (emphasis added)

22. It is important to understand this reasoning, as it is essentially supported by the Minister on the appeal. In the first part of that

paragraph, the learned judge was essentially saying that the State had not exercised the option to provide for refusal of surrender

under Article 4.7(a) of the Framework Decision in cases where the offence specified in the warrant is regarded in law as having been

committed in the State. Section 42 was the most closely relevant section, but it was silent on this issue. In the second part of the

paragraph, he appears to interpret section 44 as applying to cases where the offence is committed in a third country (neither the

issuing nor the executing Member State) but, by use of the phrase, “other than this state,” excludes its application to cases where it

was committed in the State. He refers to the contra legem principle and suggests that he is not doing violence to section 44, but he

does not consider the conformity of section 44 with Article 4.7(b) of the Framework Decision.

23. Having thus rejected the claim that surrender was prohibited by section 44 and having ordered the surrender of the appellant, the

learned judge certified the following point as being one of exceptional public importance in accordance with the provisions of s.16(12)

of the European Arrest Warrant Act, 2003, as amended by section 12 of the Criminal Justice (Miscellaneous Provisions) Act, 2009:

“Whether the surrender of a person is prohibited by Section 44 of the Act where the offence for which surrender is sought is

committed in the State and where the victim is a national of the requesting State which seeks to exercise an extra-territorial

jurisdiction to prosecute the offence under its own laws and in circumstances where the Director of Public Prosecutions in this State

has decided not to prosecute the person in respect of that offence”.

24. One of the appellant’s grounds of appeal is that the learned High Court judge erred insofar as he found that there was jurisdiction

to surrender the appellant and, more specifically, insofar as he held that the prohibition on surrender contained in section 44 of the

Act of 2003 related only to cases where the offence for which surrender is sought was committed outside the territory of the State

(Ireland) and the issuing state.

The legal background

25. The effect of section 9 of the Offences against the Person Act, 1861 as amended by the Third Schedule to the Criminal Law Act,

1977 and Article 3 of the Offences against the Person Act, 1861 (Section 9) Adaptation Order, 1973 [S.I. No. 356 973] is that the

Courts of Ireland have jurisdiction to prosecute an Irish citizen for an offence of murder or manslaughter committed outside the

jurisdiction and irrespective of the nationality of the alleged victim. The section and the Statutory Instrument are quoted in full in the

judgment of the Chief Justice.

26. Section 44 constitutes an implementation of Article 4.7(b) of the Framework Decision. That provision, in turn, replicates in

substance a provision of the European Convention on Extradition, (“the Paris Convention”), done at Paris on 13th December 1957.

27. Article 7 of the Paris Convention, under the heading, “Place of commission,” provided:

1. The requested Party may refuse to extradite a person claimed for an offence which is regarded by its law as having

been committed in whole or in part in its territory or in a place treated as its territory.

2. When the offence for which extradition is requested has been committed outside the territory of the requesting Party,

extradition may only be refused if the law of the requested Party does not allow prosecution for the same category of

offence when committed outside the latter Party's territory or does not allow extradition for the offence concerned

28. Article 26 of the Paris Convention permitted a reservation to be made in respect of Article 7 but provided that a contracting party

“which has made a reservation of a provision of the Convention may not claim application of the said provision by another party save

in so far as it has itself accepted the provision.” The Explanatory Memorandum to the Convention states that the effect of this

provision is to make any reservation “subject to reciprocity.”

29. Effect was given in Irish law to the terms of the Paris Convention by the combined effect of section 8(1) of the Extradition Act,

1965 and, in the case of any particular other country, by Statutory Instrument. The full terms of that section should be noted:

“Where by any international agreement or convention to which the State is a party an arrangement (in this Act referred to as an

extradition agreement) is made with another country for the surrender by each country to the other of persons wanted for

prosecution or punishment or where the Government are satisfied that reciprocal facilities to that effect will be afforded by another

country, the Government may by order apply this Part in relation to that country.” (emphasis added)

30. By virtue of the Extradition Act 1965 (Part II) (No. 23) Order 1989 (S.I. No. 9 of 1989] the government, in exercise of power in

that behalf conferred by section 8 of the Act of 1965, applied the Paris Convention in relation, inter alia, to Denmark.

31. The Supreme Court considered the Paris Convention, as thus applied to Part II of the Extradition Act, 1965, in Aamond v

Smithwick, cited above. That case concerned a request by Denmark under Part II for the extradition of the applicant in respect of

drug smuggling offences alleged to have been committed on the high seas, thus outside the territory of Denmark, the requesting

State. The applicant was detained in accordance with the Act pending his extradition to Denmark. He applied pursuant to Article 40.4

of the Constitution for his release, in reliance on Article 7 of the Paris Convention, arguing that extradition for an extraterritorial

offence was precluded in a case where this State did not also allow prosecution for such an offence when committed outside the

national territory. At the time, it was not possible to prosecute him in Ireland for offences of the type for which he was sought. Finlay

C.J. delivered the judgment of this Court. He considered that the provisions of Part II of the Act provided “what might be described as

basic requirements and guidelines for cases where the government being satisfied that appropriate reciprocal facilities will be afforded

by another country apply Part II of the Act of 1965 to a request for extradition in a case where no convention or extradition treaty or

agreement exists.” (see page 68 of the report). The Chief Justice was satisfied that the provisions of Article 7.2 of the Convention

applied and that their application was mandatory, because, inter alia, they provided “a clear protection in certain circumstances to an

individual against the detention and extradition which is provided for in the scheme.”

32. That case was, of course, decided against the background of the Extradition Act, 1965 in application of the Paris Convention. The

surrender of Mr Aamond was subsequently sought pursuant to the Act of 2003 and refused in a ground not relevant to the present

proceedings.

33. Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender of persons between Member

States was, in due course, adopted and implemented in Irish law by the Act of 2003. The original proposal for the Framework Decision

did not include Article 4.7 (a) or (b). It included a provision which would have permitted refusal of surrender in respect of an offence

committed outside the issuing Member State where the offence in question did not exist under the law of the executing State.

34. On 4th December a number of Member States proposed the introduction of additional grounds for non-execution based on Article

7 of the Paris Convention. Hence Article 4.7 was adopted. The Framework Decision does not, however, contain any provision for

reservation on the lines of Article 26 of the Paris Convention.

35. Article 4.7 of the Framework Decision is headed “Grounds for optional non-execution of the European arrest warrant,” is

essentially expressed in similar terms to Article 7 of the Paris Convention. It provides that the “executing judicial authority may refuse

to execute the European arrest warrant” in cases specified in seven paragraphs. As noted above, the Chief Justice in Aamond v

Smithwick considered that Article 7.2 of the Paris Convention conferred protection on individuals.

36. The paragraph of Article 4 of the Framework Decision, which is relevant for present purposes is in paragraph 7 and is as follows:

“where the European arrest warrant relates to offences which:

(a) are regarded by the law of the executing Member State as having been committed in whole or in part in the territory

of the executing Member State or in a place treated as such;

or

(b) have been committed outside the territory of the issuing Member State and the law of the executing Member State

does not allow prosecution for the same offences when committed outside its territory.”

37. It is not clear whether the availability of these grounds for non-execution depends on whether they have been adopted in the

Member State’s implementing legislation or whether they are available to the national court, when performing the function of

executing judicial authority. It was not argued on behalf of the appellant that he could rely on Article 4.7(b) other than by virtue of

its implementation in the form of section 44 of the Act of 2003. Thus, I will not consider the possibility that the appellant could invoke

Article 4.7(b) directly.

38. It is common case, as was accepted by Peart J, that section 44 represents the exercise by the State of the option in favour of

non-execution provided for by Article 7.4(b).

Submissions on the appeal

39. The appellant submits that Peart J misinterpreted section 44 by reading into it the additional words “other than this State (i.e. in

a third state),” thus making the section inapplicable on the facts of this case. It is submitted that the decision in Aamond v Smithwick

required the Extradition Act, 1965 to be treated as penal legislation and interpreted strictly, that the same principle applies to the Act

of 2003 and that the requirement of conforming interpretation derived from the judgment of the Court of Justice in Case C-105/03

Pupino [2005] ECR I-5285 does not justify the insertion of these words. In any event, on the ordinary literal interpretation of section

44, it does not include the added words.

40. At the hearing of the appeal, Mr Garret Simons, Senior Counsel, submitted, on behalf of the appellant, that section 44 recognises

a principle of reciprocity. The executing Member State is not required to surrender the person unless it practises extra-territorial

jurisdiction in the same circumstances. Section 44 should be given a purposive interpretation. It was submitted that the learned High

Court judge mistakenly restricted the purpose of section 44 by limiting it to Article 2.1. The object of section 44 is to implement

Article 4.7(b) and it should be interpreted in conformity with that provision.

41. When analysing whether the offences are the “same offences” for the purpose of Article 4.7(b), a legal, not a factual approach is

required. Put otherwise, in deciding whether Ireland does or does not allow prosecution “for the same offences when committed

outside its territory,” the expression “the same offences” must be taken as including not only the factual components of the offence

but also the conditions pertaining to the exercise of extra-territorial jurisdiction. That exercise in the present case will take account

of the different bases on which the two states exercise extra-territorial jurisdiction. The crucial element, so far as Ireland is

concerned, is that the offence of murder, when committed outside Ireland, cannot be prosecuted here unless the alleged perpetrator

is an Irish citizen. This is not a necessary or relevant element under French law.

42. The Minister maintains on the appeal the stance he took in the High Court. He argues throughout for a plain and literal approach

to the interpretation of section 44 and accepts that paragraphs (a) and (b) of Article 4.7 provide for two entirely different situations.

He says that section 44 is the statutory provision whereby the Oireachtas, when implementing the Framework Decision in domestic

law, chose to avail in a particular manner of the ‘extra-territorial’ opt-out allowed for by Article 4.7(b) of the Framework Decision. The

Oireachtas never chose to avail of the-opt out contained in sub-paragraph (a) of Article 4.7. Therefore, the Minister says, section 44

has no application in this case, where the offence for which surrender is sought was not committed in a third state and this is the

plain and literal meaning of section 44 of the Act. If the offence alleged in this case had been committed outside Ireland, for example

in the United Kingdom, the section might have operated as a bar to surrender. It has no application to the present case because the

offence was committed in the State.

43. The Minister, presumably concerned to address the divergence between the language of section 44 and the terms of Article

4.7(b), submitted that, although an executing State may refuse to order surrender where the offence is committed outside its

territory and the executing State would not have jurisdiction to prosecute, this option was taken up in section 44 of the 2003 Act but

in a qualified way, by applying the option only where the acts or omissions in question were committed outside the State.

44. In support of this position, the Minister advances a somewhat complex argument, by introducing section 42 of the Act to his

analysis. As has been seen, the learned High Court judge also sought assistance from section 42. What the Minister says can, I hope,

be fairly paraphrased as follows. Article 4.7(a) of the Framework Decision permitted a Member State to provide in its laws for refusal

of surrender (the Framework Decision says “non-execution”) where, under its law, the offence is regarded as having been committed

in whole or in part in the territory of that State. The Minister accepts that the Oireachtas never chose to avail of this opt-out.

45. However, the Minster has submitted that section 42, as originally enacted, prohibited surrender in all circumstances where

offences under Irish law could be the subject of possible prosecution. The section, as originally enacted contained three paragraphs,

(a), (b) and (c). These provided for the following three situations:

• Where the DPP or Attorney General was considering but had not yet decided whether bring proceedings against the

person for the offence in question (section 42 (a));

• Where proceedings had been brought against the person for that offence in the State (section 42 (b)); and

• Where the DPP or Attorney General had decided not to bring a prosecution or had entered a nolle prosequi (section 42

(c).

The provision for the third situation by paragraph (c) was repealed by section 83 of the Criminal Law (Terrorist Offences) Act, 2005.

46. According to the Minister, the Oireachtas, in enacting section 42, had in effect closed off the possibility of surrendering a person

who had committed an offence in Ireland. The Minister accepted the existence of a fourth possibility, namely where no consideration

had ever been given to the person in question being prosecuted in the State. The important phrase is in effect. The Minister does not

contend that section 42 is an actual implementation of Article 4.7(a).

47. The Minister submits that the-opt out provision in Article 4.7(b) was adopted into Irish Law under the 2003 Act as originally

amended through the combined effect of sections 42 and 44 of that Act. The Oireachtas made conscious decisions as to which of the

opt-outs in the Framework Decision it would avail of and as to whether to adopt them in their entirety. Not all of the opt-outs were

adopted and the forms of the opt-outs are not identical. In effect, surrender was barred under section 42, where the offence was

committed in Ireland under Section 42. The Minister appears to reach this conclusion by equating the question of law, i.e., whether

the offence was regarded as having been committed in Ireland, with the three questions of fact which arose under section 42 as

originally enacted and the two such questions after the 2005 amendment. Each of those concerns decisions whether or not to

prosecute.

Problems of interpretation

48. The question raised by the appellant’s objection is whether section 44 of the Act of 2003 prohibits his surrender, a question which

depends in turn on how that section is to be interpreted. Two closely related issues of interpretation need to be considered.

49. The first of these is the application of the rule of conforming interpretation of national law in the light of the measure of the law

of the European Union, here the Framework Decision, which it implements. The second is whether the national measure, section 44 in

particular, is to be considered solely in the light of the general objective of the Framework Decision as expressed in particular in

Article 2 or whether the relevant rule is rather Article 4.7(b) and whether that provision confers rights on individuals. It is also

necessary to bear in mind, in any event, that the method of interpretation to be used when interpreting a Framework Decision is not

necessarily a simple literal one.

50. Having determined the correct approach to interpretation generally, I will turn to a consideration of section 44 in particular.

Conforming interpretation

51. The principle that the courts of the Member States are obliged to interpret any particular provision of national law in the light of

the provision of the law of the European Union (formerly the European Community) it is intended to implement is called the principle of

conforming interpretation. Pupino, cited above, applies to framework decisions adopted under the now defunct “Third Pillar” a principle

of conforming interpretation originating in Case 14/83 Von Colson and Kamann [1984] ECR 1891. It has been explained and adapted in

later cases most notably Case C-106/89 Marleasing [1990] ECR I-4135. As explained by the Court of Justice in the latter case:

“in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon

to interpret it is required to do so, so far as possible, in the light of the wording and the purpose of the directive in order to achieve

the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.” (emphasis added).

52. In Case C-105/03 Pupino [2005] ECR I-5285, the Court of Justice extended that principle to framework decisions adopted under

the Treaty on European Union (TEU) in spite of the absence from that Treaty of any provision corresponding to Article 10EC on which

its previous case-law had principally relied in justification of the principle. The Court cited, in particular, the fact that Article 35 TEU

conferred on the Court a jurisdiction to give preliminary rulings combined with the fact that even Member States which had not made

the declaration necessary to permit its courts to make references were entitled to present observations to the Court. The Court

explained:

“The jurisdiction [to make references for preliminary ruling] would be deprived of most of its useful effect if individuals were not

entitled to invoke framework decisions in order to obtain a conforming interpretation of national law before the national court.”

That principle requires the national court, where necessary, to “consider the whole of national law in order to assess how far as it can

be applied in such a way as not to produce a result contrary to that envisaged by the framework decision” (paragraph 42).

53. The Court described the basic nature of the obligation in similar terms to those used in Von Colson and Kamann. It is to interpret

the national law “as far as possible, in the light of the wording and the purpose” of the framework decision.

54. The Court recognises that there are two types of limits to the obligation of the national court:

• Firstly, the court’s obligation is to interpret in conformity with the framework decision only insofar as that is possible; it

is not obliged to set aside the national law, i.e., it need not act contra legem;

• Secondly, the interpretative obligation may be subject to limits derived from general principles of law; in particular, the

obligation does not require the imposition of criminal liability.

55. Furthermore, as can be seen from the reasoning in Pupino, individuals are entitled to rely on the principle in order to invoke the

terms of framework decisions. The specific questions posed to the Court by the Italian court in Pupino concerned provisions of a

framework decision which required national law to provide facilities to child victims appearing as witnesses in criminal prosecutions. In

that context, the Court held that the Framework Decision had to be interpreted “in such a way that fundamental rights, including the

right to a fair trial as set out in Article 6 of the [European Convention on Human Rights]………………are respected.(paragraph 59).

56. The effect of the Pupino principle in application of the procedure for the European arrest warrant was explained by Murray C.J. in

Minister for Justice Equality and Law Reform v Altaravicius [2006] 3 I.R. 148 at 156 as follows:

“When applying and interpreting national provisions giving effect to a framework decision the courts "must do so as far as possible in

this light of the wording and purpose of the Framework Decision in order to attain the result which it pursues" (see Criminal

proceedings against Pupino (Case C-105/03) [2005] E.C.R. I-05285). The principle of conforming interpretation is limited, as the Court

of Justice has pointed out in Pupino and other cases, to the extent that it is possible to give such an interpretation. It does not

require a national court to interpret national legislation contra legem . If national legislation, having been interpreted as far as possible

in conformity with community legislation to which it purports to give effect, but still falls short of what is required by the latter, a

national court must, as a general principle, apply that legislation as interpreted although there may be other consequences for a

member state which has failed to fully implement a directive or framework decision.”

What purpose is to be considered?

57. The Court of Justice speaks in Pupino of the wording and the purpose of the framework decision. This echoes the general

interpretative practice of the Court of Justice, which, so far as the treaties were concerned, can be traced back to Case 26/62 Van

Gend en Loos [1963] ECR 1. That, as the Court said at page 12 of the report, is to consider the “spirit, the general scheme and the

wording” of provisions of the Treaty. Variations have been applied in many cases over the years, depending on context. To give but

one example, the Court in Joined cases C-267/95 & C-268/95 Merck & Co v Primecrown Ltd [1996] 1 ECR 1-6285 referred to “other

criteria of interpretation,” where there was divergence in the different language versions and spoke of “the general scheme and the

purpose of the regulatory system of which the provisions form part.” (paragraph 21.).

58. In Pupino, the Court made specific reference to the wording and the purpose of the framework decision. The general purpose and

objective of the Framework Decision was described by Murray C.J, in his judgment in Altaravicius, cited above. He said at page 153:

“The Act of 2003 is the means adopted by the State to give effect to its obligations under the framework decision. Those obligations

are reflected in s. 10 of the Act which provides that where a European arrest warrant has been duly issued in respect of a person

within the State, that person shall, subject to and in accordance with the provisions of the Act and the framework decision, be

arrested and surrendered to the issuing state.”

59. Peart J in the High Court appeared to accept the argument of the Minister that the framework decision clearly sets out its aim and

objective in Article 2.1 of the Framework Decision namely the surrender of persons either for prosecution or for the service of

sentences already imposed.

60. However, Article 4.7(b) provides, in terms, that an executing judicial authority may refuse to execute an arrest warrant in either

of the two situations described at (a) and (b). Insofar as there may be doubt about the meaning of a national provision implementing

either of these options or, as they have been called, “opt-outs,” it is obvious that the principle of conforming interpretation applies to

it in the sense that it is informed by the option it implements. National law might, depending on circumstances, have to be given a

restricted meaning to prevent it exceeding the limits of the Union provision at issue. In other cases, of which this may be one, it may

have to be given a meaning which better recognises the rights of individuals.

61. There does not appear to have been any explicit decision to the effect that a qualification or exception to a European Community

or European Union measure should be taken into account when interpreting a provision of national law. The Court did, however, in

Case 8/81 Becker [1982] ECR 53 decide that an individual could rely on the direct effect of an exempting provision of the Sixth

Directive on value-added tax against a Member State which had not implemented it. In Case 322/88 Grimaldi v Fonds des Maladies

Professionnelles [1989] ECR 4407, the Court held that a national court was bound to take into account even a Commission

recommendation when interpreting a national law regarding categories of illness covered by a European schedule of occupational

diseases. The effect would, in that case, be to broaden the scope of national provisions.

62. There does not seem to me to be any reason in principle to exclude the principle of conforming interpretation from a measure

merely because it implements an “opt-out.” On the contrary, logic demands that the principle be applied equally to such a situation.

Indeed, it might well be that a correct interpretation would lead to the exclusion of an individual from the benefit of a national

measure, once it was correctly interpreted as a matter of European Union law.

63. Accordingly, I am satisfied that section 44 must be interpreted in conformity with Article 4.7(b) and not merely with the general

objectives of the Framework Decision.

64. Once it is established, as I believe it is, that the principle of conforming interpretation applies, it follows that the first thing to do

is to seek out the correct meaning of Article 4.7(b).

65. The first and in truth fundamental argument of the Minister is that section 44 has no application in this case for the simple reason

that the offence specified in the arrest warrant was, as a matter of fact, committed in this jurisdiction. The condition for the

application of the second part of Article 4.7(b) is that “the law of the executing Member State does not allow prosecution for the

same offences when committed outside its territory.” The Minister’s submission is plainly completely inconsistent with Article 4.7(b) for

two reasons.

66. Firstly, the article is concerned with the law of the executing State. The facts are not relevant. In particular, it is irrelevant that

the offence specified in the warrant was committed in the executing State. Secondly, the expression the “same offences,” for the

same reason, refers to offences of the same type as that charged in the arrest warrant. It cannot refer to the actual offences. Such

a reference would make no sense. It would make nonsense of the history of the provision tracing back, as it does, to Article 7.2 of

the Paris Convention. The paragraph is concerned with the law of the executing State in the hypothetical situation where offences of

the same type are committed outside its territory.

67. Accordingly, if it is to be interpreted as contended by the Minister, section 44 could not be an implementation of Article 7.4(b),

simply because it directly contradicts it.

68. I also disagree with the Minister’s second and more complex argument, accepted by Peart J, to the effect that sections 42 and 44

combined are to regarded as an implementation of Article 4.7(a) and/or (b). I confess to having difficulty in following this argument,

because the Minister said at one point in his written submissions that the State had never chosen to avail of the opt-out provided by

Article 4.7(a) and that paragraphs (a) and (b) deal with two entirely different situations. Nevertheless, he also submitted that section

42 in effect closed off the possibility of surrendering a person who had committed an offence in Ireland and that is the subject-matter

of paragraph (a).

69. If the Minister is contending that section 42, whether as originally enacted or as amended in 2005, represents, in any way an

implementation of Article 4.7(a), his submission is erroneous. Paragraph (a) deals with the situation, as here, where the offence is

regarded by the law of the executing Member State as having been committed on its territory. Clearly, it covers, first and foremost,

the simple case, such as the present, where the offence was in fact committed in the territory of the executing Member State. It

addresses the place where the offence, as a matter of the law of that State the offence specified in the warrant is regarded as

having been committed.

70. If the State had, in fact, adopted the “opt-out” provided by paragraph (a), there would, of course, be no difficulty. The

appellant’s surrender would be prohibited. Furthermore, I do not accept that section 42, whether in its 2003 form or its 2005 form can

be regarded as any form of implementation of either paragraph (a) or paragraph (b). Each paragraph of section 42 is concerned with a

possible or actual prosecution in the State for the actual offence: where one is being considered (paragraph a); where there has in

fact been a prosecution in the State of the person sought (paragraph b).

71. Where the DPP has decided not to prosecute (paragraph (c), now repealed). None of these provisions has any concern with

whether or not, as a matter of Irish law, the offence is regarded as having been committed in the State, which is the subject-matter

of Article 4.7(a); none is concerned with Irish law where offences of the type named in the arrest warrant are in fact committed

outside Irish territory.

72. For all of these reasons, I believe that the learned High Court judge was in error when he interpreted section 44 by interpolating

the qualification “other than this State (i.e. in a third state).” Firstly, Article 4.7(b) contains no such provision. Thus, the judge could

not have reached this result by applying the principle of conforming interpretation. Secondly, section 44 itself contains no such

provision. Although the learned judge did not consider that it was “contra legem to hold that section 44 of the Act of 2003 prohibits

surrender in respect of offences which are committed in a country other than the issuing state and other than this State (i.e. in a

third state),” that qualification to the obligation of conforming interpretation could never be deployed for the purpose of inserting into

national law a set of words which were in themselves contra legem.

73. In short, I am satisfied that Article 4.7(b) applies where the offence specified in the warrant was committed outside the issuing

Member State and, under its law, the executing Member State does not prosecute for the same offences. The question remains

whether section 44, properly interpreted in the light of Article 4.7(b) prohibits surrender in this case.

74. Counsel for the appellant argued that a principle of reciprocity underlies the correct interpretation of the provision, though he did

not cite any authority for that as a general proposition of extradition law. The law of extradition is the product of a great mixture of

many bilateral treaties and some multi-lateral conventions. It is generally the product of negotiation between the representatives of

the contracting states, which frequently have different and divergent criminal law and procedure. It is by no means uncommon that

extradition treaties cater for such differences. Qualifications, exceptions or reservations are commonplace. The best known

divergence is that many but not all civil-law countries had a practice, often at the level of constitutional law, of refusing to extradite

their citizens. Common-law countries have not historically refused extradition on that ground. The resulting treaties are a matter for

negotiation. Nor have I been able to discern such a general principle in the terms of the Paris Convention. At most two provisions

recognise the possibility of making some provisions reciprocal.

75. That is not to say that a requirement of reciprocity may not be a feature of individual extradition provisions. As has been seen

above, section 8(1) of the Act of 1965 envisaged that the adoption by the Government by order of an international convention in

relation to another country would depend on reciprocal facilities being offered by that country. Finlay C.J. referred specifically to this

requirement in the context of basic requirements and guidelines.

76. Although there does not appear to have been any direct decision on the point, there are some indications of a similar

interpretation in the United Kingdom. Jones on Extradition (Sweet & Maxwell, London 1995 at paragraph 5-012, p. 131), referring to

Article 7 says: “If a party requests extradition for an offence committed outside its territory, extradition may be refused only if the

requested party’s law does not allow for a prosecution in equivalent circumstances.” This statement was repeated in the 2001 edition

(see Jones on Mutual Legal Assistance par. 10-018), the last before the (UK) Extradition Act, 2003, which codified the law on

extradition and implemented the European Arrest Warrant. These statements seem to be regarded as explanations of the provisions of

the (UK) Extradition Acts of 1967 and 1989. Lord Justice Scott Baker’s report to the Home secretary of 30th September 2011 uses

the expression, “corresponding circumstances,” taken apparently from section 3(1)(c) of the (UK) Extradition Act 1967.

77. The United Kingdom legislation of 2003 contains no overt acknowledgement of the Framework Decision or the notion of the

European arrest warrant. Member States party to the Framework Decision are described as “Category 1 territories.” Nonetheless, the

definition of extradition in section 64(4) of that Act seems to be regarded as an implementation of Article 4.7(b). It provides:

“The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—

(a)the conduct occurs outside the category 1 territory;

(b)the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for

a term of 12 months or a greater punishment (however it is described in that law);

(c)in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the

relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or

a greater punishment.” (emphasis added).

78. The expressions corresponding circumstances, modified to “equivalent circumstances” in Jones on Extradition, has thus, it appears

been used in United Kingdom legislation since 1967. It appears to be a reflection of Article 7.2 of the Paris Convention. It is

particularly of note that the United Kingdom Parliament has retained the expression in its implementation of the Article 4.7(b) opt-out.

79. While Lord Justice Scott Baker considers it to be an aspect of double-criminality, it seems to me to require something more.

Article 4.7(b) does not in itself require reciprocity in the sense that each Member State must have adopted the opt-out. It is for each

Member State to decide independently whether to avail of the various options, in particular Article 4.7(b). However, it is still possible

to interpret the provision as implying a reciprocal application of the respective laws of the issuing and executing states. By that I

mean that Article 4.7(b) envisages that prosecution of the extra-territorial offences at issue should be subject to similar conditions in

each State.

80. It is of particular interest to consider the views of Mr Remy Farrell and Mr Anthony Hanrahan, the learned authors of The European

Arrest Warrant in Ireland (Clarus Press Dublin 2011). They are worthy of citation in extenso and, although they have not been among

the authorities relied upon, they appear to have significantly influenced the submissions of the appellant.

81. Under the heading Article 4.7(b), the authors consider that Article 4.7(b) reflect a principle of reciprocity. They say:

“The rationale underlying Art 4.7(b) which is implemented by s 44 of the 2003 Act is quite different. Provisions of this type can be

found in extradition agreements from the late 19th century onwards. Such provisions are based on the principle of reciprocity which

held that one State should not be required to extradite for an offence if it could not request extradition for the same offence where

the roles were reversed. The principle is directed at ensuring that an almost perfect balance of mutual obligations as between States

is maintained.” (par. 12-14, page 182).

82. They consider that section 44 is concerned with a hypothetical comparison of the legal provisions of the two States regarding

extra-territorial offences. They say:

“In essence s. 44 prohibits surrender in circumstances where the State would not be entitled to prosecute the same offence on an

extra-territorial basis. This necessarily requires the court to engage in a hypothetical exercise of considering whether, if the

respondent committed the offence in a third country, he could be prosecuted for that offence within the State on the basis of his

nationality or some other feature of the offence which gives rise to an extra-territorial jurisdiction. It is immediately obvious that such

an exercise is far from straightforward and it will require the court to consider first whether or not the offence is in fact an

extraterritorial one and second, on the assumption that it is, on what basis it might be hypothetically prosecuted in this jurisdiction. ”

(Par. 12-16, page 182).

The learned authors, at a later point, explain in some detail the test they consider to be applicable under section 44. I find this

passage particularly persuasive. They say:

“Where it is clear that the offence in the warrant is an extraterritorial offence, the court must consider whether the offence would be

amenable to prosecution on an extraterritorial basis in this jurisdiction. This, clearly, amounts to the court engaging in a hypothetical

test whereby it essentially substitutes the State for the position of the requesting State in relation to the offence described in the

warrant. Quite how far this translation of the different elements of the offence must go is not made entirely clear by s. 44.

Presumably where the place of commission of the offence is Ireland the court must essentially ignore this fact and assume for the

sake of the exercise that the place of the fence is another State. It is less clear what the position is where the requesting State has

asserted extraterritorial jurisdiction on the particular basis, such as active personality (i.e. the respondent is a citizen of the

requesting State and as such criminally liable for offences committed abroad). Is the court restricted to considering whether the

State would exercise extraterritorial jurisdiction on the same basis or can it consider whether extraterritorial jurisdiction might be

exercised on an alternative bases? The act provides little assistance in this regard. However, the underlying principle of reciprocity

would seem to predicate in favour of the court being restricted to considering whether extraterritorial jurisdiction could be exercised in

theory on a similar cases as opposed to on some other ground.” (par. 12-21, page 184).

83. Article 7 of the Paris Convention inspired Article 4.7(b). This is clear from the travaux préparatoires. Even if it is expressed in

slightly different terms, its effect seems to me to be the same. Article 4.7(b) uses the confusing term “same offences.” Literally

interpreted, that might refer to the actual offences. Clearly, in context it does not. The Paris Convention used the expression “same

category of offence.” That is how Article 4.7(b) should be interpreted.

84. Is the application of paragraph (b), however, defeated where, as here, the executing State prosecutes for the same type of

offence but only on condition that the perpetrator is an Irish citizen? That is really the nub of this case.

85. The first part of Article 4.7(b) is satisfied, on the face of it, merely where the offence has been committed outside the territory of

the issuing State. But a little more thought shows that more is plainly required. It is common case that France exercises extra-

territorial jurisdiction on condition that the victim is or was a French citizen. The Framework Decision does not expressly require such

a basis for the exercise of jurisdiction to be shown on the face of the warrant. Paragraph (f) of the standard form, at (d) reads:

“Other circumstances relevant to the case (optional information) followed, in parentheses by “NB: this could cover remarks on extra-

territoriality, interruptions of periods of time limitation and other consequences of the offence.)” It must be a fundamental pre-

condition to the issue of a European arrest warrant that the law of issuing State permits it to exercise jurisdiction over any person

whose surrender it seeks. To assume otherwise would be to undermine the fundamental requirement of mutual confidence and respect

for the judicial decisions of the participating States. Hence, Article 4.7(b) must mean that the issuing State has jurisdiction to

prosecute the person sought even though the offence was committed outside its territory.

86. As a matter of Irish law, a person not a citizen of Ireland could not be prosecuted for the crime of murder committed outside

Ireland. Adverting to the words of Article 4.7(b), it is not true that Ireland does not exercise extra-territorial jurisdiction in respect of

the crime of murder. Equally, it would not be true to say, without qualification, that Ireland exercises extra-territorial jurisdiction over

the crime of murder. The question, “does Ireland prosecute for murder committed outside its territory?” is not susceptible to a yes or

no answer.

87. The extra-territorial laws of Ireland and France are the converse of each other. A too-literal interpretation of Article 4.7(b) leads,

in my view, to an uneven, capricious and arbitrary result, well illustrated by the present case. The English-law concept of

corresponding circumstances tends to a more consistent result. It obviously envisages more that the mere search for

correspondence, which is, after all, provided for elsewhere in the Framework Decision.

88. I believe that a sensible and fair interpretation of Article 4.7(b) demands the recognition of a principle of reciprocity. Thus, where

a State exercises the option, surrender will be prohibited where the executing State does not exercise extra-territorial jurisdiction in

respect of offences of the type specified in the warrant in the same circumstances. In the present case, the relevant circumstance is

that the person whose surrender is sought is not an Irish citizen. Under Irish law, a person cannot be prosecuted outside the territory

of the State unless he or she is an Irish citizen.

Section 44 interpreted in the light of Article 4.7(b)

89. For reasons I have already given, it is clear that section 44 must be interpreted, so far as possible, in the light of the relevant

provision, here Article 4.7(b) of the framework decision.

90. The first part of section 44 sufficiently replicates the first part of paragraph (b) to make it clear that it was intended by the

Oireachtas to implement that option. The offence was committed outside the territory of France.

91. It is true that the second part of the section does not use language which obviously corresponds to that paragraph. However, it

does replicate two aspects of the second part of paragraph (b). Firstly, it concerns an offence committed “in a place other than the

State,” which corresponds with “offences…committed outside its territory…” in Article 4.7(b). Secondly, it raises the question whether

the offence “does not…… constitute an offence under the law of the State,” also found in paragraph (b).

92. Perhaps the most problematical aspect of section 44 is to be found in the words requiring that “the act or omission of which the

offence consists does not, by virtue of having been committed in a place other than the State, constitute an offence under the law

of the State.” These are the words which led counsel for the Minister to argue that they refer to the actual offence committed in this

case. I have already declined to accept this argument as incompatible with the terms of Article 4.7(b).

93. My view is that, in the light of paragraph 4(7)(b) these words can only refer to a corresponding but hypothetical offence of

murder, committed outside Ireland, in which the question of Irish exercise of extra-territorial jurisdiction falls to be considered. The

section relates to a hypothetical offence of murder. Thus, without doing any significant violence to the language of the section, the

term, “does not,” is necessarily a reference to what Irish law provides for in such a situation. Looking at it as a grammatical problem,

the use of the indicative form, “does not,” is equivalent to the conditional, “would not” and could, if necessary, be so read. However,

that may not be necessary. Once the question is recognised as being hypothetical, the issue is whether, the crime of murder

generally, when committed outside Ireland “constitute[e] an offence under the law of the State.”

94. In such a hypothetical situation, the question is whether the offence “does not,” “by virtue of having been committed in a place

other than the State constitute an offence under the law of the State.”

95. The final lines of section 44 are: “the act or omission of which the offence consists does not, by virtue of having been committed

in a place other than the State, constitute an offence under the law of the State.” If the words were inverted to read as follows,

they would be: “the act or omission of which the offence consists does not… constitute an offence under the law of the State, by

virtue of having been committed in a place other than the State.”

96. In this way, section 44 can be made compatible with Article 4.7(b) without doing violence to the words, but merely by placing

them, for better understanding, in a different order.

97. In my view, it is perfectly possible to interpret section 44 in conformity with Article 4.7(b). Under that provision, correctly

interpreted, the surrender of the appellant is prohibited for the following reasons. Firstly, the offence specified in the European arrest

warrant was committed outside France, the issuing Member State. Secondly, murder committed outside Ireland is not an offence

under Irish law, unless the alleged perpetrator is an Irish citizen. Interpreted in the light of the Framework Decision, section 44 applies

where Ireland would not have the power to prosecute on the same basis as France: under Irish law, a person who is not an Irish

citizen cannot be prosecuted for a murder committed outside Ireland.

98. It follows that section 44 prohibits the surrender of the appellant. I would allow the appeal and set aside the order of the High

Court. I would make an order pursuant to section 16(8) refusing an order for surrender of the appellant pursuant to section 16 of the

Act of 2003 refusing and direct his release from custody.

Section s. 21A

99. Denham C.J. and Hardiman J have provided a full account of the evidence relevant to the issue which arises under s. 21A. I will,

therefore, confine myself to referring to the highlights of that evidence.

100. The essence of the system of French criminal procedure is well known, even if it is often misunderstood. It is certainly very

different from ours. It consists of two distinct phases. The first part is the investigation or instruction, conducted by a personage

well-known in film and literature: the juge d’instruction. His or her function is to investigate the criminal complaint made against a

person. The object of the instruction is the discovery of the truth. The juge d’instruction must collect evidence both for and against

the accused. At the end of the instruction, the juge d’instruction decides whether there is enough evidence to place the accused on

trial. The act of sending for trial is called the mise en examen, and has been translated into English as the indictment. As Me

Dominique, the appellant’s French lawyer says, it is better to use the French expression, as there may be no equivalent in English or,

more to the point, no equivalent procedure in Irish law. Indictment, in our sense, refers to a document presented by the prosecutor

after the accused has been returned for trial. In France, the mise en examen is the act of a judge and results from a judicial decision.

At any rate, there is no decision to put the person on trial until that point has been reached.

101. Much has been made of the conflict between the statements of French law made by Me Tricaud on behalf of the appellant and

Mme Françoise Chaponneaux, vice-procureur de la République, provided by the Minister at the last day of the hearing. Insofar as

there are differences, they principally relate to the rules regarding trial in absentia, which are not relevant to the central issue. Both

lawyers agree that, if the appellant were to be surrendered to France pursuant to the European arrest warrant, the French criminal

proceedings would be at the stage of the instruction.

102. Me Tricaud said in his statement to the High Court:

“The issuing of the said arrest warrant on the 16th February, 2010, is roughly equivalent to charging the Respondent with the

offence. It means that the investigating judge has indicated that there is sufficient evidence against the respondent to warrant

further criminal prosecution (though not necessarily enough evidence to place him on trial). The prosecution is now in the phase of

“l’instruction”, or the examination phase.” (emphasis added).

103. Mme Françoise Chaponneaux agrees. She describes the procedure in great detail. She says that the juge d’instruction is only

responsible for a procedure preparatory to the trial procedure. The aim of the investigation is to reveal the truth; it must

consequently examine evidence of both innocence and guilt (à charge et à décharge). The accused enjoys the presumption of

innocence. Quite explicitly she states that the appellant, if he is surrendered to France, will find himself at the stage of the

instruction. It is only at the conclusion of the instruction that the juge d’ instruction decides whether to place him in mise en examen,

i.e., send him for trial.

104. To be clear, therefore, the first stage of what has been described by Me Tricaud as a prosecution has commenced and is still in

existence. The domestic French arrest warrant already issued is the equivalent of a charge.

105. Section s. 21A of the Act of 2003, inserted by the Act of 2005, provides:

“(1) Where a European arrest warrant is issued in the issuing state in respect of a person who has not been convicted of

an offence specified therein, the High Court shall refuse to surrender the person if it is satisfied that a decision has not

been made to charge the person with, and try him or her for, that offence in the issuing state.

(2) Where a European arrest warrant is issued in respect of a person who has not been convicted of an offence specified

therein, it shall be presumed that a decision has been made to charge the person with, and try him or her for, that

offence in the issuing state, unless the contrary is proved.”

106. Since the entry into force of the Act of 2003, the High Court and Supreme Court have handled a large number of cases of

European arrest warrants. We now have a settled jurisprudence establishing the obligation of the courts to give effect to the purpose

and objectives of the Framework Decision, to respect the principles of “free movement of judicial decisions……within an area of

freedom security and justice,” of “mutual recognition” and a “high level of confidence between Member States, while also respecting

fundamental rights and certain principles recognised by the European Convention on Human Rights.

107. Murray C.J. explained the relationship between the Framework Decision on the European arrest warrant and the Irish

implementing statute in a passage also cited by O’Donnell J in his judgment in Minister for Justice, Equality and Law Reform v Olsson

[2011] IESC 1. That passage from the judgment of Murray C.J. in Minister for Justice, Equality and Law Reform v McArdle [20005] 4

I.R. 260 at 268, is worth repeating. It is as follows:

“The European Arrest Warrant Act 2003 gives effect in this jurisdiction to the European Council Framework Decision of the 13th June,

2002, on the… . The recitals to that decision make reference to the implementation of "the principle of mutual recognition of criminal

proceedings" and in particular recital number 6 which states "the European arrest warrant provided for in this Framework Decision is

the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council refer

to as the 'cornerstone' of judicial cooperation". Accordingly, it seems to me that where a judicial authority of a member state issues a

European arrest warrant and that is accompanied by a certificate referred to in s. 11(3) of the Act of 2003, both of which state and

certify respectively, that the surrender of the person named in the warrant is sought for the purpose of prosecution and trial, that

must be acknowledged as at least prima facie evidence of the purpose for which the request is made. It would, in my view, normally

require cogent evidence to the contrary to raise a genuine issue as to the purpose for which the warrant in question has been issued

and the surrender sought.” (Note: s. 11(3) of the Act of 2003 was repealed in 2005).

108. Murray C.J. further reflected on these principles in his judgment in the case of Minister for Justice Equality and Law Reform v

Altaravicius, already cited. He explained that the Act:

“…must be interpreted in the light of the terms of the Framework Decision which it implements and with particular regard to the

objectives to be achieved. The system or mechanism of surrender created by the Framework Decision applies in all Member States of

the European Union. Recital 5 in the preamble to the Framework Decision refers to “… the introduction of a new simplified system of

surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences …” It has as its

object “… to remove the complexity and potential for delay inherent …” in pre-existing extradition procedures. (Whether, in the light

of its structure and the manner in which it has been drafted it will achieve that objective, is another question.) As that Recital,

Recital 6 and Article 1.2 make clear it is founded on the mutual recognition of judicial decisions and judicial cooperation within the

European Union. Recital 10 emphasises “the mechanism of the European Arrest Warrant is based on a high level of confidence

between Member States”. Both the preamble and provisions of the Framework Decision as well as the Act of 2003 acknowledge that

in operating this system of surrender fundamental rights, including fairness of procedures, must be respected and provide for certain

safeguards in that respect.

It is important to note that the ideas of mutual recognition and mutual respect relate to judicial decisions of a judicial authority,

within the meaning of the Framework Decision, in one State by judicial authorities in other Member States.”

109. I will recall but will not repeat that this Court is under a duty of conforming interpretation as laid down in Pupino, which I have

cited above and which is also cited by Denham C.J. in her judgment. The Court is obliged to interpret the Act of 2003 in conformity

with the Framework Decision, though only so far as possible.”

110. The Framework Decision is, therefore, designed to provide, subject to the protection of individuals guaranteed in particular by

the European Convention on Human Rights, an efficient and speedy procedure for the surrender of suspects between Member States

in accordance with the principles of mutual respect and confidence. It necessitates a degree of respect for and understanding of

different legal systems and, in particular, different criminal procedures. O’Donnell J explained the matter very well in his judgment in

Olsson, cited above:

“In approaching the question of the interpretation of the Act, it is necessary to keep both the nature of the Act and its origins in

view. One thing which can be said with assurance is that the Act does not intend that words such as “charge" and "prosecution"

should only be understood as meaning a charge or prosecution in the Irish criminal justice system. The Act establishes a procedure for

the reciprocal execution of warrants with legal systems, almost all of which differ in some ways, even at times significantly from that

of this jurisdiction. If the Act intended that the only warrants emanating from a criminal justice procedure which was identical to that

of Ireland would be executed here, then the Act would manifestly have failed to achieve its object, and indeed that of the Framework

Decision."

111. Section 21A obliges the High Court to refuse surrender of a person who has not yet been convicted “if it is satisfied that a

decision has not been made to charge the person with, and try him or her for, that offence in the issuing state……” I do not think

there is any problem in this case about the rebuttal of the presumption in s. 21A (2). The evidence of the two French lawyers is, in

its most relevant aspects, virtually agreed.

112. In my view, it is clear from this evidence that a decision has been made to charge the appellant. Clearly, a decision to charge is

not, in France, equivalent to a decision to put a person on trial. Indeed, it might be argued that, in our own system, a decision by the

DPP to charge a person does not necessarily lead to his being put on trial and is, in any event, not the same thing as putting him on

trial. It is unnecessary, however, to debate the matter any further. Me Tricaud accepts that the issue of the warrant for arrest in

France was the equivalent of a charge. Furthermore, he speaks of "further prosecution." The object of the Framework Decision is, in a

case such as the present, that the person be surrendered to the issuing State “for the purposes of conducting a criminal

prosecution…” (See Article 1(1) of the Framework Decision.) I do not think that there is any evidence to rebut the presumption that a

decision has been made “to charge” the appellant. Rather to the contrary, it has been decided to charge him.

113. The same cannot be said with regard to a decision “to try” him. The position in French law, as it has been explained to this

court, is crystal clear. The appellant, if surrendered to France, will find himself in the midst of the stage of instruction or investigation.

As O’Donnell J explained the matter in Olsson, “what is impermissible is that a decision to prosecute should be dependant on such

further investigation producing sufficient evidence to put a person on trial.” That passage applies, a fortiori, to a decision to try a

person. Where, as here, the evidence is so compellingly clear that the court must be, as the section says "satisfied," that no decision

has been made to try the appellant, s. 21A explicitly obliges the Court to refuse the order for surrender. That could not be a clearer

case for application of the notion of contra legem. It is not possible to construe s. 21A in the light of the Framework Decision, without

disobeying its clear command.

114. I am, therefore, compelled to agree that the section prohibits the surrender of the appellant. If this section were not in such

terms, it could be plausibly argued that, looking at the French criminal procedure in its entirety, and even accepting that it is still only

at the stage of instruction, the surrender of the appellant is sought “for the purposes of conducting a criminal prosecution…” A broad,

purposive and conforming interpretation could well lead to that result. But the section is quite explicit. It is not open to the Court, by

means of conforming interpretation, to circumvent the clear terms of s. 21A.

115. Hardiman J points out in his judgment that a statement was made on behalf of Ireland in the course of negotiation of the

Framework Decision in the following terms:

“Ireland shall, in the implementation into domestic legislation of this Framework decision, provide that the European Arrest Warrant

shall only be executed for the purpose of bringing that person to trial or for the purpose of executing a custodial sentence or

detention order”.

If s. s. 21A had been expressed in those terms, it might well, in view of the obligation of conforming interpretation, have been possible

to interpret the section in such a way as to permit the surrender of a person in the position of the appellant. The legislation did not,

however, take the form indicated in the government’s statement. It introduced an explicit requirement that a decision have been

made to try the person.

116. The result is that, in the state of the evidence before the Court regarding the stage which has been reached in the prosecution

in France, the Court is coerced to conclude that no decision has been made to try the appellant. It follows that the Court must

refuse to surrender the appellant.

117. I would allow the appeal and set aside the order of the High Court for the surrender of the appellant to France.