Supreme Court dismisses appeal on surrender grounds, ruling amended EAW Act applies to all lawful applications.

THE SUPREME COURT

[Record No: 98/2011]

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

O’Donnell J.

Between/

The Minister for Justice, Equality and Law Reform

Applicant/Respondent

and

Ciarán Tobin

Respondent/Appellant

Judgment delivered on the 19th day of June 2012 by Murray J.

1. I concur with the judgment of the Chief Justice and would also dismiss the appeal. The facts and circumstances of the case,

including relevant legislative provisions and amendments to them, are set out in her judgment.

2. In concurring I propose to make some brief observations on certain aspects of the case, and to give my considered view on the

issue arising under s.27 of the Interpretation Act, 2005.

3. Most, and certainly the most salient, arguments made on behalf of the appellant, Mr. Tobin, stem in one form or another from the

fact that there had been a previous unsuccessful application by the Minister for his surrender to Hungary on foot of a European Arrest

Warrant in respect of the sentence imposed for the same offence. The application now before the Court is made on a newly issued

European Arrest Warrant in effectively the same terms in respect of the same offence and judicial sentence which had been imposed

on the appellant after his conviction in Hungary.

4. It is not in issue that at all material times, there was, and continues to be, an obligation under E.U. law on the State to give effect

to the Framework Decision establishing the system of surrender on foot of European Arrest Warrants. That means that the State has

at all times had a duty to give effect in national legislation to the system for surrender provided for in the Framework Decision without

creating any obstacles to surrender of a person wanted for prosecution on criminal offence, or to serve a judicially imposed term of

imprisonment, other than those provided for or envisaged by the Framework Decision.

5. Section 10 of the European Arrest Warrant Act, 2003, as amended by s.6 of the Criminal Justice (Miscellaneous Provisions) Act,

2009 (which removed the requirement that the person sought should have “fled” as a precondition to surrender) was, of course,

intended to give full effect to that obligation. The European Framework Decision means that each Member State of the European

Union, including Ireland and Hungary, are entitled to expect that every other Member State would surrender to them persons wanted

for prosecution or to serve a sentence after conviction on foot of any European Arrest Warrant issued in conformity with the

requirements of the Framework Decision.

6. The various judgments delivered today in this case do not give rise to any decision of this Court, impugning the validity, as such, of

the European Arrest Warrant on which the present application is based. Nor do they give rise to a decision of the Court that this

application constitutes an abuse of process. On the contrary, a majority of the Court has decided to reject that ground of appeal.

7. At all material times the appellant is, and remains, a person who stands convicted of a serious criminal offence in a Member State

of the European Union, and in respect of whom there is an outstanding European Arrest Warrant seeking his surrender which, as far as

this Court is concerned, has been lawfully and duly issued by a judicial authority in Hungary, in accordance with the law of the

European Union. Notwithstanding the order to be made by this Court today that warrant remains enforceable throughout the European

Union, other than Ireland.

8. On the question of res judicata I would observe that no issue concerning the application of that doctrine arises in this case, the

parties having acknowledged the established principle that the doctrine does not apply to extradition cases. (The general application

of the doctrine of res judicata should not be confused with the subsidiary principle of issue estoppel, which would apply, or with other

issues). For example, in the written submissions it was stated on behalf of the appellant “It should be noted that the appellant does

not argue that the doctrine of res judicata applies to the second set of proceedings. It is evident that the precise legal issue which

was determined in the first set of proceedings – whether Mr. Tobin had fled from Hungary, and could therefore be surrendered

under s.10 – does not arise for determination in this set of proceedings, following the enactment of the 2009 Act. Strictly speaking

therefore, no issues of res judicata arise”. Accordingly, no argument was made and no decision required on the issue of res judicata.

9. The fact that this is a second application for the surrender of the appellant, who over the years has resisted and refused to

comply with the order and sentence of a court of trial at which he was legally represented on his own instructions, does not in my

view, and for the reasons set out in the judgment of the Chief Justice, give rise to valid grounds for refusing his surrender on foot of

the European Arrest Warrant now before the Court, and in accordance with the Act of 2003, as amended.

Section 27(1)(c) of the Interpretation Act, 2005

10. In one of his more substantive grounds of appeal the appellant has sought to rely on the provisions of s.27(1)(c) of the

Interpretation Act, 2005. In doing so he claims to be the beneficiary of a right accrued under s.10 of the European Arrest Warrant

Act, 2003 in the form in which it stood at the time when the first application for his surrender was decided. That is to say, when s.10

of the Act required the applicant for surrender to establish that a person who is sought for the purpose of serving a judicially imposed

sentence of imprisonment had “fled” the requesting State prior to serving or completing such sentence. That requirement was, of

course, repealed by s.6 of the Act of 2009, referred to above.

11. Section 27(1) and (2) of the Interpretation Act, 2005, provide as follows:

“27(1) Where an enactment is repealed, the repeal does not—

(a) revive anything not in force or not existing immediately before the repeal,

(b) affect the previous operation of the enactment or anything duly done or suffered under the

enactment,

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment,

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence against or

contravention of the enactment which was committed before the repeal, or

(e) prejudice or affect any legal proceedings (civil or criminal) pending at the time of the repeal in

respect of any such right, privilege, obligation, liability, offence or contravention.

(2) Where an enactment is repealed, any legal proceedings (civil or criminal) in respect of a right, privilege,

obligation or liability acquired, accrued or incurred under, or an offence against or contravention of, the

enactment may be instituted, continued or enforced, and any penalty, forfeiture or punishment in respect of such

offence or contravention may be imposed and carried out, as if the enactment had not been repealed.” (emphasis

added)

12. Section 27 is limited in its application by the provisions of s.4 of the Act of 2005 which specified that the presumptions and rules

set out in the Act applied to any enactment “except insofar as the contrary intention appears in this Act, in the enactment itself, or

where relevant, in the Act under which the enactment is made”.

13. Section 27(1)(c) does not create the presumption against interference with any general right. It refers only to a right “accrued or

incurred under the enactment”, that is to say, the enactment repealed. The reference to an enactment includes any portion of an

Act, as stated in s.2 of the Interpretation Act, 2005.

14. It is well established by the case law of this Court that a right does not “accrue” or become a vested right, under an enactment

of the Oireachtas, simply because there is a provision in such enactment for the exercise of a right (see for example J. Wood & Co. v.

Wicklow County Council [1995] ILRM 51, and McKone Estates Ltd. V. Dublin County Council [1995] 3 ILRM 283). As our case law

makes clear, a statutory right is only deemed to accrue or vest for the purposes of s.27 (although obviously the case law refers to

earlier, although similar, provisions of the Interpretation Act, 1937) when something specific occurs which gives rise to an accrued

right under a Statute. This principle is not in issue in this case. Neither was it really contested that the decision of this Court to

refuse the application for the appellant’s surrender in the earlier proceedings was an occurrence which gave rise to an accrued right

under the Statute. There was no debate, or no significant argument, between the parties as to what may constitute an accrued or

vested right for the purposes of s.27 of the Interpretation Act. One proceeds on the basis that the decision in the first proceedings

concerning the appellant, having been decided in his favour, gave rise to an accrued right under the enactment. Clearly, that right

was the right to resist his surrender to Hungary on the grounds that he had not “fled” within the meaning of the Act.

15. The appellant argues that on the basis of s.27(1) and (2) of the Interpretation Act, 2005 there is a presumption that the

Oireachtas did not intend to deprive him of that accrued right when enacting the amending legislation. On the basis that there was an

accepted accrued or vested right in the appellant, the question is whether the presumption which he relies upon is inapplicable in this

case on the basis that “a contrary intention” appears in the amending enactment itself within the meaning of s.4 of the Interpretation

Act, 2005.

16. Accordingly, the issue which arises in this context is purely one of statutory interpretation. The primary question of interpretation

left to the Court is whether a contrary intention within the meaning of s.4 is to be found in the enactment as amended.

17. That interpretive issue fall to be determined in accordance with the principles laid down in our case law (although they are not

issues which have arisen with any degree of frequency) such as the judgment of this Court in Hosie v. Kildare County Council [1928]

I.R. 47 at 68, and a judgment of the High Court in L.M. v. Devally [1997] 2 ILRM 369.

18. Before referring to these and other cases I think it would be helpful to look at the provision of s.27 of the Act of 2005 briefly in its

historical context.

19. I think, however, it is important to highlight at this point that the issues of statutory interpretation to which s.27 of the

Interpretation Act give rise do not, by definition, relate to, and should not be confused with, the issues of res judicata, issue

estoppel, retrospective effect and the binding effect of judgments in proceedings inter parties, civil or criminal, which are intended to

be final and complete as concerns those parties.

20. As already pointed out, the Court is concerned here with whether a right accrued under a specific enactment is one which was

not affected by the repeal of a provision of the enactment under which the right accrued, because no contrary intention appears in

the enactment.

Historical Context

21. Section 27 of the Interpretation Act, 2005 reflects very closely the wording of s.38(2) of the Interpretation Act, 1889 when

statutory savers of this nature were first introduced in that form. Our intervening Interpretation Act, 1937, at s.21, contained the

same, or almost exactly the same, wording.

22. The Interpretation Act, 1889 provided that mere repeal did not:

“Revive anything not in force or not existing at the time when the repeal take affect; or

Affect the previous operation of any enactment so repealed; or

anything duly done or suffered under any enactment so repealed; or

Affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

Affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so

repealed; or

Affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty,

forfeiture or punishment as aforesaid; and any such investigation, legal proceedings, or remedy may be instituted,

continued, or enforced, and any such penalty, forfeiture, or punishment may be imposed as if the repealing Act had not

been passed.” (emphasis added)

23. The provision preserving the continued exercise of rights or remedy as if the repealing Act had not been passed is now reflected

in sub-section 2 of s.27 of the Act of 2005.

24. Prior to the Act of 1889 it had been usual to insert saving provisions to the foregoing effect in all Acts in which repeals were

effected.

25. As is pointed out in Dodd’s Statutory Interpretation in Ireland [Tottel Publishing, 2008] to understand the genesis of such

provisions it is necessary to understand the position that prevailed at common law arising from the repeal of a Statute. As the author

of that book points out “at common law, the repeal of an enactment made it as if the enactment had never been, except as to

matters past and closed. This went so far as to revive enactments repealed by the enactment repealed.” (at p.78). The effect of

the repealing of a Statute as described by Tindal, C.J. in Kay v. Goodwin (6 Bing., at 582) was cited with approval by Murnaghan J.

when he delivered the judgment of this Court in Hosie v. Kildare County Council (cited above). Tindal, C.J. stated “I take the effect of

repealing a Statute to be to obliterate it as completely from the record of the parliament as if it had never been passed; and must

be considered as a law that never existed, except for the purposes of those actions, which were commenced, prosecuted, and

concluded whilst it was an existing law.”

26. As Sullivan, P. pointed out in his High Court judgment in the same case, having also cited Tindal, C.J. “In order to prevent the

hardship which might result from the application of this principle in many cases, it became usual to insert in repealing statutes

provisions in the nature of saving clauses, protecting rights which had been acquired under the statute repealed. The necessity for

such saving clauses is now obviated by the Interpretation Act, 1889, sect. 38, sub-sect. 2, which provides that, unless the contrary

intention appears, the repeal of any enactment shall not affect any rights or privileges acquired or accrued under the enactment so

repealed.”

27. Accordingly, the general savers introduced by the Act of 1889 were introduced in order to avoid regurgitating in a pedantic

fashion savers in every Act which repealed (which term includes, for this purpose, amended) an earlier Act. The saver provisions

inserted in the Interpretation Act of 1889 were intended, in certain circumstances, to address a range of possible consequences

which could flow from the enactment of a repealing Act if the common law consequences of a repeal were to apply in a unfettered

fashion.

28. Thus, in certain circumstances a party to whom a right under the repealed enactment had accrued could rely on that enactment

as if it had not been repealed

General Principles

29. Broad or general principles relating to the interpretation of a saving provision such as s.27 were considered by this Court in Hosie

v. Kildare County Council [1927] I.R. 47 at 68. In that case the Court considered the interpretation of s.38, subs.2 of the

Interpretation Act, 1889 (cited above), which very much corresponds with s.27(1)(c) and (2) of the Act of 2005. The actual

conclusion of this Court in that case was that by necessary implication there was a “contrary intention” in the amending Act which

prevented the applicant from relying on the presumption contained in s.38, subs.2. As one might expect, the actual conclusion or

result in the case turned on the particularities of the legislation in issue, as is likely to be the position in any particular case involving

the interpretation of legislation, in the light of such statutory savers. This could also be said of the result in the case, on a similar

issue, in L.M. v. Devally (cited above).

30. However, this Court did refer to general principles which are relevant to the interpretation of a saving clause such as s.38 in that

case and which clearly, in my view, apply by analogy to the corresponding provision to be found in s.27 of the Act of 2005.

31. Murnaghan, J. delivered the judgment of the Court, and having referred to the dicta of Tindal, C.J. in Kay v. Goodwin (recited

above), he went on to make specific reference to the statutory provisions which were relevant to the case in question, and of course

in particular referred to s.38(2) of the Interpretation Act, 1889. As regards a consideration of s.38, Murnaghan, J. stated:

“The onus is upon those who say that existing rights are to be impaired, to point to such intention appearing in the

repealing enactment. The contrary intention does not appear in express words, but the room for doubt is whether such

a contrary intention does appear by plain implication.” (This was a reference to the particular provisions of the legislation

in question.)

He continued:

“Lord Hatherley, in Pardo v. Bingham [L.R. 4 Ch. 735], states that in seeking to ascertain the intention of the Legislature,

regard must be had to the general scope of the Act, to the remedy sought to be applied, to the former state of the law,

and to what was in the contemplation of the Legislature.”

32. Having examined all the relevant legislation, the Court in that case concluded, having regard to the provisions of the Act as a

whole, that there was a “contrary intention” which the Interpretation Act of 1889 contemplated, “not in express words, but by

necessary implication”.

33. A similar interpretative approach was adopted by Carroll, J. in L.M. v. Devally (cited above). In that case the parties had, in

earlier proceedings, entered into an agreement pursuant to s.10(4) of the Illegitimate Children (Affiliation Orders) Act, 1930, as

amended by the Family Law (Maintenance of Spouses & Children) Act, 1976. In those circumstances such an agreement was stated in

the Act to be “a complete bar to any further proceedings under this Act in respect of such child against the putative father…”.

34. The foregoing Act of 1976 was amended by s.18 of the Status of Children Act, 1987 by the insertion of a new section which

permitted the Court, in respect of parents of a dependant child who are not married, to make a maintenance order concerning the

child, should it appear to the Court on application by one of the parents that the other has failed to provide such maintenance as is

proper in the circumstances. Again, the actual result in this case was governed by the particularities of the various legislative

provisions, but one of the issues determined by the learned High Court judge was whether the corresponding presumption in s.21(1)

(c) of the Interpretation Act, 1937 ran in favour of the putative father against, whom the claim for maintenance was made, on

account of a right accrued to him under the legislation by virtue of the agreement which had been made between the parties and

previously approved by the court under the Act of 1930.

35. What is relevant in that case is the interpretative approach of Carroll, J. which is consistent with that outlined by this Court in

Hosie v. Kildare County Council. In the course of deciding in favour of the applicant mother, on this point, Carroll, J. stated:

“The exclusion of a non-marital child from benefiting from an order of maintenance under the 1976 Act (as amended by

the 1987 Act) by reason of a pre-existing agreement would be contrary to the purpose of the 1987 Act which was to

confer equality on children (see long title).” (emphasis added)

Here the purpose of the Act as expressed in the long title was seen as an important consideration in determining the true intention of

the amended Act.

36. Having regard to the decision in Hosie, I would conclude that the following general principles should be followed (without intending

them to be all inclusive) in ascertaining whether an Act which has been the subject of a repeal (which includes an amendment) should

be interpreted as expressing a “contrary intention” so as to oust the application of s.27(1)(c) of the Act of 2005:

(a) The onus is on the party asserting that existing rights are to be impaired to point to such an intention appearing in

the repealing enactment. I would add that this must I feel be understood as not compromising the function of the court

itself to determine, in the final analysis, whether or not it is satisfied that a contrary intention appears or should be

inferred from the Act. Perhaps, more important, this judicial dicta on the onus placed on a party may have little or any

relevance to the interpretative task of the court when exercising its function and obligation to give to a national measure

a conforming interpretation in accordance with European law, to the extent reasonably possible.

(b) It is not necessary that a contrary intention within the meaning of s.4 of the Act be stated in express terms. That

may arise by necessary implication.

(c) The task is to ascertain the intention of the legislature.

(d) In seeking to ascertain that intention regard should be had to:

(i) the general scope of the Act,

(ii) the remedy sought to be applied,

(iii) the former state of the law, and

(iv) what was in the contemplation of the legislature by reference to the purpose of the Act.

The Purpose of the Amending Act

37. Considering the purpose and, indeed, genesis of the relevant amending provisions contained in s.6 of the Act of 2009 a brief

reference to the obvious purpose of the principal Act, the Act of 2003, should be made.

38. As is self-evident from a reading of the Act of 2003, including its long title, its sole and certainly primary purpose was to give

effect to the Council Framework Decision on the establishment of a system of European Arrest Warrants. This also necessitated or

rendered it appropriate to amend the Extradition Act, 1965 and other Acts.

39. In doing so the State was fulfilling the obligations accepted by Ireland under the various European treaties as reflected in s.2(1)

of the European Communities Act, 1972 as inserted by the European Union Act, 2009. I make more specific reference to this later.

40. It is not in contention in these proceedings, and indeed fully accepted, that the provision originally in s.10 whereby a person in

the position of the appellant must be shown to have “fled” the requesting state before his surrender could be ordered was not in

conformity with the Framework Decision.

41. Accordingly, as long as that provision remained in force, the State was acting in breach of its obligations under the treaties and

the Framework Decision.

42. When this Court decided to refuse the application for an order to surrender the appellant in the first application concerning the

appellant it did so in accordance with the specific terms of the Act as it then was. The Act of 2009 contains a series of amendments

to the European Arrest Warrant Act, 2003, and indeed s.6 itself contains amendments other than the one relating to the precondition

as to “fled”. However, it is not really in contention that it was the outcome of those earlier proceedings which, at the very least,

highlighted and brought to the fore the failure of the Oireachtas in that respect to give full effect to the Framework Decision as

required by law. It is difficult to imagine that the Hungarian authorities did not raise some bone of contention with the State or the

European Commission as to why their otherwise entirely legitimate request for surrender was refused. Of course, we do not know

whether that happened. On the other hand, it is accepted that the State realised that the Act of 2003 in that form left Ireland in

breach of its obligations to give an effective and full implementation to the Framework Decision. As counsel for the Minister stated, a

“mistake” had been made in enacting the legislation in that form. As a consequence the amending provision was introduced and

passed.

43. Counsel on behalf of the appellant also pointed out that Mr. Tobin was a unique case being the only person who appears to have

benefited from the defence of not having “fled” within the meaning of the relevant part of s.10 as it then was. One does not actually

know if that is the case, but it seems likely to have been.

44. There was some debate in the course of argument as to whether the amendment was intended to target Mr. Tobin’s case

specifically, and if not what were the implications as concern s.27(1)(c). From time to time cases coming before the courts will

expose in one form or another deficiencies or lacunae in legislation, or simply condemn a provision as being unconstitutional.

Inevitably, and again from time to time, the State will, in the light of the outcome of a particular case, identify the need for amending

legislation to be introduced when a Bill appropriate for the inclusion of such amendment is being brought before the Oireachtas. Thus

there may be a considerable passage of time before a legislative remedy is enacted unless such an appropriate Bill is in the offing. On

the other hand, the State may consider it a matter sufficiently important or urgent as to require the initiation of specific repealing or

amending legislation in the light of the outcome of a particular case. Indeed, in this case the amendment was included in a sort of

catch all Bill which became the Criminal Justice (Miscellaneous Provisions) Act, 2009. Obviously, the Oireachtas does not have the

constitutional power to set aside a decision in a particular case, and I do not consider there is any question of that in this instance,

and in any event it is a separate issue and does not arise in this context. What the Oireachtas can do is to change the law generally

and prospectively. That is a necessary and essential prerogative of the Oireachtas in the exercise of its legislative functions. It can of

course pass legislation having retrospective effect in certain circumstances, but there is no issue concerning that in this instance.

45. It seems to me clear that the amending provision, namely s.6 of the Act of 2009, is general in its form, and indeed has the

classical form of general amending legislation so that the principal Act, once amended, will be generally applied in its new form in all

cases coming under its rubric after it becomes law. That, of course, still leaves open the question as to the application of s.27 of the

Interpretation Act.

46. It is the Oireachtas, not the government of the day nor a Minister, which bears constitutional responsibility for the adoption of

legislation (see Crilly v. Farrington [2001] 3 I.R. 251). The Oireachtas may, or may not be, aware of particular cases or classes of

cases decided under the legislation prior to its proposed repeal. In this case the Oireachtas may, or may not have been, aware that

the appellant was the only case which was decided in the courts under the repealed legislation, if that was in fact the case. All of

this seems to me to be irrelevant to the issue under consideration because it is not necessary for the Oireachtas to make reference

to particular cases or particular class of cases or particular classes of persons who have been affected in the past by legislation when

repealing legislation in clear and uncertain terms and stating what the law should generally be in the future. So the fact that no

special mention was made of the earlier Tobin case in one form or another in the legislation cannot, in my view, be of any interpretive

significance. It would be unusual, from any perspective, to refer to past cases individually or collectively in legislation intended to

have general application for the future.

47. As was made clear in Hosie a saving provision such as s.27 of the Interpretation Act, 2005 does not fall to be disapplied only

when there is an express saving or declared intention to that effect, or in respect of earlier cases. As outlined above, a contrary

intention to the application of such a provision may arise by implication having regard to the terms, nature and purpose of the Act.

The Intention of the Oireachtas

48. In its former state s.10 was in breach of Ireland’s obligations under the law of the European Union. This had to be remedied, not

as a mater of discretion but as an obligation under the law. This is what the Oireachtas set out to do.

49. In order to place the duty to remedy such a breach in context it might be as well to recall some of the context in which the

obligation arises. Section 2(1) of the Act of 1972 provides that “the following shall be binding on the State and shall be part of

domestic law thereof under the conditions laid down in the treaties governing the European Union:” The section goes on to refer to

those treaties and to Acts adopted by the institutions of the European Union. It hardly needs stating that these are obligations that

arise as part of our national law and not simply something that is owed at an international level.

50. In the oft referred to Pupino case (C-105/03 2005 ECR I-05285) the Court of Justice took the opportunity to emphasise once

again the duties of Member States to give effect to community measures, including Framework Decisions, at national level. This is to

be differentiated from the conforming interpretation of duty on national courts, which is also dealt with in that case and which will be

referred to later. In that case the court noted that the wording of Article 34(2)(b) EU “confers a binding character on framework

decisions in the sense that they ‘bind’ the Member States ‘as to the result to be achieved but shall leave to the national authorities

the choice of form and method’.” (para. 33)

51. At paragraph 42 the court states “It would be difficult for the Union to carry out its task effectively if the principle of loyal co-

operation, requiring in particular that Member States take all appropriate measures, whether general or particular, to ensure

fulfilment of their obligations under European Law, were not also binding in the area of police and judicial co-operation in criminal

matters, which is moreover entirely based on co-operation between Member States and the institutions, …”.

52. It is abundantly clear from the terms of the provision amending s.10 of the Act of 2010 that the Oireachtas, in accordance with

its obligations under the law, sought to remove, once and for all, the requirement as to a person having “fled” as previously contained

in the section. This was not simply a policy choice, it was an obligation under the treaties to ensure that national legislation gave full

and proper effect to a community measure, in this instance a Framework Decision. Failure to do so would also have been in breach of

the fundamental principle of Union law of loyal co-operation by a Member State when in a case such as this the State was admittedly

aware that its legislation was in breach of European Union law.

53. That the amended s.10, with the requirement as to “fled” removed should have general application to all applications under the

new s.10 whether surrender of a person on foot of a European Arrest Warrant is, in itself, unremarkable. It is clear that it was given

such general application to all future European Arrest Warrants in order to conform with the Framework Decision and to abide by legal

obligations to do so.

54. If the Act, as amended by s.6 of the Act of 2009, were to be interpreted as applying to some requests from Member States for

surrender on foot of a European Arrest Warrant and not to others (or the appellant’s case solely), even though all of the warrants

issued have been issued in accordance with European Union law and particularly the Framework Decision, then the State could not be

said to have fulfilled its obligations under European Union law. Such an interpretation would defeat the avowed purpose of the Act.

55. On the contrary, the purpose of the amendment is to bring the legislation in full conformity with the Framework Decision. It was

remedying a breach of obligation by the State for all future cases. I think it is manifest that the Act did not intend to only partially

remedy the State’s failure to observe its obligation in this context.

56. In all the foregoing circumstances, having regard to the nature and object of the amendment and the obligations imposed on the

State when legislating on the system for European Arrest Warrants, that it was the intention of the Oireachtas that the Act would

apply to all applications for surrender governed by s.10 of the Act, without any exception in favour of a person, such as the

appellant, being the subject of an unsuccessful application under s.10 prior to the amendment.

57. Accordingly, I conclude that the enactment in question contained, by necessary implication, a contrary intention, within the

meaning of s.4 of the Interpretation Act, to the application of the presumption contained in s.27 of that Act..

Conforming Interpretation under EU Law

58. The Pupino case, referred to above, addresses the duty of national courts, who also have responsibility for the application and

interpretation of European Union law, to interpret national law, as far as possible, in conformity with the law of the European Union.

59. This applies generally, but obviously with all the more force when the national measure being interpreted expressly states, as is

the case here, that its purposes is to give effect to the E.U. measure. It will be recalled that the long title to the amending legislation

expressly states that its purpose is to give “further effect” to the Framework Decision in question. Pupino has, of course, been

referred to an relied upon in a number of cases in this Court. (See, for example, MJELR v. Altaravicius [2006] 3 I.R. 148 and MJELR v.

Stapleton [2008] 1 I.R. 44).

60. The Pupino decision did not involve any radical or novel statement of principle in the field of Union law, since essentially it

concluded that the principles of conforming interpretation of national law which always applied to Directives applied to the same

effect to the newer form of legislation, namely a Framework Decision. (See for example paragraph 31 of Pupino).

61. Under the principles well established it is worth recalling that at paragraph 43 of its judgment the Court of Justice stated:

“In the light of all the above considerations, the court concludes that the principle of interpretation in conformity with

Community law is binding in relation to framework decisions adopted in the context of Title VI of the Treaty on European

Union. When applying national law, the national court that is called on to interpret it must do so as far as possible in the

light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus

comply with article 34(2)(b) EU.”

62. The duty of giving a conforming interpretation conferred on national courts excludes, it seems to me, the exercise of that duty

being affected by any onus placed on one of the parties in proceedings. Once the issue of interpreting a national law in the light of

European Union law properly arises for decision in a case, the duty to give a conforming interpretation by the court concerned applies.

63. At paragraph 47 the Court of Justice fully acknowledged that this did not mean that national law should be interpreted contra

legem, while at the same time emphasising the duty of courts to avoid, as far as possible, an interpretative result that was contrary

to that provided by a framework decision. In that paragraph the Court stated:

“The obligation on the national court to refer to the content of a framework decision when interpreting the relevant

rules of its national law ceases when the latter cannot receive an application which would lead to a result compatible

with that envisaged by that framework decision. In other words, the principle of interpretation in conformity with

Community law cannot serve as the basis for an interpretation of national law contra legem. That principle does,

however, require that, where necessary, the national court consider the whole of national law in order to assess how far

it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision.”

64. Having regard to the fact that s.10 of the Act of 2003 in its new amended form was amended so as to conform with and give

effect to the Framework Decision, I am of the view that the Court is bound to give a conforming interpretation, namely that it applies

to all lawful applications for surrender made for the purpose of the Framework Decision after the coming into force of the amended

Act, without exception. I do not consider that there is anything in the enactment, or indeed the Interpretation Act, 2005, which

would support a contention that such an interpretation would be contra legem.

65. Accordingly, I conclude that this ground of appeal of the appellant is not well founded.