High Court orders surrender under EAW Act 2003 despite respondent's travel community claim and lack of file.

Neutral Citation: [2015] IEHC 658

THE HIGH COURT

[2015 No. 9 EXT]

BETWEEN

MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

APPLICANT

AND

BARNEY MCGINLEY

RESPONDENT

JUDGMENT of Mr. Justice Noonan delivered the 22nd day of July, 2015.

1. This is an application brought pursuant to the provisions of the European Arrest Warrant Act 2003 (as amended) (“the Act”) for the

surrender of the respondent to the authorities in Northern Ireland. The European Arrest Warrant (“EAW”) was issued by Belfast

Magistrates Court on the 9th December, 2014 and was endorsed for execution by the High Court on the 13th January, 2015. The

respondent was arrested on foot of this warrant on the 3rd February, 2015 at the Criminal Courts of Justice, Dublin 7.

2. The four offences, which are the subject matter of the warrant, are alleged to have been committed on the 15th November, 2011.

The respondent was charged with these offences before Belfast Magistrates Court on the 16th November, 2011, and was admitted to

bail on the 18th November, 2011. It is alleged that he absconded while on bail giving rise to the delay in bringing this application.

3. No issue has been raised as to the identity of the respondent and I am satisfied from the evidence of Sergeant Sean Fallon that s.

16(1)(a) of the Act has been complied with and that the respondent is the person in respect of whom the EAW was issued.

4. With regard to s. 16(1)(b), I have examined the original warrant and I am satisfied that it has been endorsed in accordance with s.

13 of the Act for execution. Again, this is not in issue. The EAW states that the surrender of the respondent is requested for the

purpose of prosecution and accordingly s. 45 does not apply, thus satisfying the requirements of s. 16(1)(c). With regard to s. 16(1)

(d), the sections referred to therein do not apply and therefore the court is not required to refuse surrender on this ground.

5. In his Notice of Objection and in argument, the applicant essentially raises three issues which he says prohibit his surrender under

Part 3 of the Act, and these are as follows:-

1) The respondent is a member of the travelling community and there are reasonable grounds for believing that in his

prosecution and/or punishment, he will be treated less favourably than a person who is not of his ethnic origin as provided

in s. 37(1)(c)(ii)(I). Further, he would be exposed to inhumane and degrading treatment or punishment which would be a

contravention of his rights under both the Constitution and the European Convention on Human Rights.

2) The offences with which he is charged do not correspond with offences under the law of the State and consequently

his surrender is prohibited by s. 38.

3) There is no, or no sufficient, evidence that the DPP is considering, but has not yet decided, whether to bring

proceedings against him for an offence and thus his surrender is prohibited by s. 42.

6. I propose to deal with each of these issues in turn.

First Ground of Objection

7. The allegation of discrimination and breach of s. 37 is based on the following averment at para. 4 of the affidavit of the respondent

sworn on the 20th May, 2015:-

“I am a member of the travelling community and I believe I will be treated less favourably in Northern Ireland because of

that. I don’t think I will get a fair trial there and if imprisoned it will be especially tough for me.”

8. This averment is entirely unsupported by any expert evidence or independent empirical data. It is no more than a bare assertion.

Section 4A of the Act is material in that regard in that provides:-

“It shall be presumed that an issuing State will comply with the requirements of the Framework Decision, unless the

contrary is shown.”

9. In Minister for Justice and Equality v. Altaravicius [2006] 3 I.R. 148, the Supreme Court held that extradition arrangements,

whatever their form, between this country and other states have been applied by the courts on the presumption that the other

states have complied in good faith with their obligations under the relevant treaty or statutory provision. The assertion of non-

compliance or the raising of the possibility of non-compliance was not sufficient to dislodge the presumption of compliance. The

presumption stood until something to the contrary was shown.

8. It seems to me in the light of the foregoing that the bare and self serving assertion made by the respondent in his affidavit could

not, without more, form any basis for the court coming to the conclusion that there are reasonable, or indeed any, grounds for

believing that the respondent will be discriminated against in any shape or form or that his rights will be infringed.

Second Ground of Objection

9. The EAW gives particulars of four offences which can be described in concise form as:

a) Hijacking a vehicle,

b) Criminal damage,

c) Common assault and

d) Theft.

Each offence carries a maximum sentence in excess of 12 months imprisonment and accordingly satisfies the minimum gravity

requirements contained in s. 38(1)(a)(i).

10. Section (e) of the EAW provides a description of the circumstances in which the offences were committed, including the time,

place and degree of participation in the offences by the respondent. A detailed narrative of those circumstances appears in section

(e). In summary, it is alleged that in the early hours of the morning of the 15th November, 2011, a taxi driver, Kieran Logue, picked up

three fares, all male, who proceeded to hijack his vehicle and assault him. It is alleged that one of the males seated in the front of

the vehicle pushed Mr Logue out the driver’s door onto the road and all three males then ran after him and assaulted him. They then

made off in the vehicle. It is alleged that when the vehicle was recovered, damage had been caused to it. It is further alleged that a

bottle of wine was stolen from a nearby restaurant around the same time and an empty bottle of wine was recovered near the

abandoned taxi.

11. In a letter of the 8th July, 2015 to the respondent’s solicitors, the Chief State Solicitor sets out particulars of offences under the

laws of the State which are said to correspond with the offences with which the respondent is charged in Northern Ireland.

12. It is submitted on behalf of the respondent that the narrative description of the circumstances of the alleged offences in the EAW

does not sufficiently relate to the respondent, with the exception of the assault offence. Reliance in that regard was placed on

Minister for Justice and Equality v. Kasprowicz [2010] IEHC 207.

13. On the hijacking charge, it was submitted that the facts disclosed in the EAW indicate that the eldest of the three males who

was the front seat passenger was the only culprit identified and there was nothing to indicate that this was intended to refer to the

respondent. However in my view, this totally ignores the subsequent facts alleged where all three males chased and assaulted Mr

Logue. This, to my mind, demonstrates clearly that the three males were at all material times acting in concert in the execution of a

common purpose and joint enterprise. The same considerations necessarily apply to the criminal damage charge. In that regard, it

seems to me that the judgment of the Supreme Court in Minister for Justice and Equality v. Stafford [2009] IESC 83 is relevant. In

that case, the Supreme Court upheld a decision of the High Court regarding an European Arrest Warrant in which Peart J. said the

following:-

“The principle of mutual recognition must be interpreted in a way which precludes this Court, except in the most obvious

and glaring inadequacy and failure to make any link between the person named in the warrant and the alleged offence,

from seeking to go behind the description contained in paragraph (e) and in so doing questioning the bona fides of the

warrant signed as it is by the issuing judge.

The requirement that the warrant contains a description of the degree of the respondent’s involvement in the offences

means just that – a description thereof. There is no requirement that a particular level of involvement be described in the

sense of having to pass a certain threshold of involvement so as to show anything like a prima facie case. That would be

to require strength of argument demonstration. In my view the principle of mutual co-operation is consistent with the

requesting authority being expected to show a degree of participation or involvement by the respondent in the offences

set forth in the warrant. Beyond that it is a matter for the requesting authority, who in this case has stated that it has

been decided to charge and try the respondent with the charges, to prove its case at trial beyond a reasonable doubt so

as to dislodge the presumption of innocence which he presently enjoys as of right. To go further in my view and expect

that the requesting authority should at this stage be required to set forth all of its proposed evidence in more detail is not

something required by either the letter or the spirit of the Framework Decision.”

14. These sentiments were echoed by the views of Denham J. (as she then was) in delivering the judgment of the Supreme Court

where she said:-

“19. The question which arises for determination is whether the acts alleged on the warrant show a link with the

requested person. It is not necessary to show a prima facie case. It is not necessary to show a “strong” case. The issue

of guilt or innocence is for the jury in the requesting state.

20. This case is one of circumstantial evidence. There is no reason why an accusation of a crime based upon

circumstantial evidence could not be the basis for a European arrest warrant. It is necessary to look at the facts alleged

in each warrant.”

15. These remarks are particularly apposite to the theft charge which is based on circumstantial evidence but demonstrates a clear

link to the respondent who is alleged to have been identified in CCTV footage by the proprietor of the restaurant in question.

16. I am therefore satisfied that in respect of the four offences alleged, a sufficient link to the respondent has been demonstrated

and further, that the offences with which he is charged correspond to offences under the law of the State thus satisfying the

requirements of s. 38.

Third Ground of Objection

17. In a letter of the 6th May, 2015 to the respondent’s solicitors, the Office of the DPP said:-

“The Office of the DPP has not received a file concerning any of these offences from An Garda Síochána. The Office of

the DPP is not considering and will not be considering initiating criminal proceedings against Mr McGinley in respect of the

specified four offences.”

18. It was submitted on behalf of the respondent that the DPP could not have reached a decision in this regard as no file had been

received and therefore the requirements of s. 42 were not satisfied. I cannot accept that submission and it seems to me that the

DPP’s statement in this regard could not be clearer and it would be stretching the interpretation of the language used to breaking

point to suggest that the statement made is somehow equivocal. Accordingly, I am satisfied that there is no substance in this point.

19. For these reasons, I will order the surrender of the respondent pursuant to the EAW.