Court of Appeal dismisses appeal against surrender to Spain for drug trafficking, upholding High Court decision.

THE COURT OF APPEAL

Neutral Citation Number: [2017] IECA 329

Record No. 2017/132

Birmingham J.

Mahon J.

Edwards J.

IN THE MATTER OF THE EUROPEAN ARREST WARRANTS ACT

2003 AND 2012

BETWEEN/

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

- AND–

PATRICK JOSEPH MANGAN

APPELLANT

JUDGMENT of Mr. Justice Mahon delivered on the 11th day of December 2017

1. A European Arrest Warrant issued on the 5th April 2013 by the Kingdom of Spain (“Spain”) seeking the surrender of the appellant to

that country from this jurisdiction. The EAW was endorsed by the High Court on the 1st February 2016 pursuant to the provisions of

s. 13 of the EAW Act 2003, as amended. The Minister for Foreign Affairs has designated Spain as a member State for the purposes of

the Act of 2003 in the European Arrest Warrant Act 2003 (Designated Members States) Order (S.I. 4 of 2004).

2. On the 16th March 2017, pursuant to s. 16(1) of the European Arrest Warrant Act 2003, as amended, the High Court (Donnelly J.)

made the Surrender Order subject to a stay on the Order pending the conclusion of this appeal.

3. The relevant background facts are set out in considerable detail in the course of the judgment of Donnelly J. delivered on the 13th

March 2017 and will be repeated to only a limited extent in this judgment. The subject matter of the EAW is ‘illicit trafficking in

narcotic drugs and psychotropic substances’. The issuing judicial authority has clarified that they are relying on the designation of the

offence as one to which Article 2, para. 2 of the 2002 Framework Decision applies. The facts relevant to the alleged commission of

the criminal offence in Spain would, if committed in this jurisdiction, amount to the criminal offence of possession of a controlled

substance with intent to sell or otherwise supply it to another contrary to s. 15 of the Misuse of Drugs Act 1997, as amended.

Furthermore, it would also amount to conspiracy to possess controlled drugs with the requisite intent. On that basis, the High Court

found that the surrender of the appellant was not prohibited on the basis of s. 38 of the Act of 2003.

4. The identification of the appellant as a suspect in a drugs operation arose in the course of the interception/tapping of the Spanish

telephone of Anthony Joseph O’Neill and, thereby, telephone conversations between Mr. O’Neill in Spain, while using his Spanish

telephone, and the appellant in Ireland, using his Irish telephone were intercepted and recorded. At the time, the relevant judicial

Spanish authority had authorised the interception of Mr. O’Neill’s Spanish telephone.

5. In a communication from the issuing judicial authority in Spain on the 26th September 2016 addressed to The Central Authority in

this jurisdiction the following details were provided:-

“During the process of investigation that took place on different organisations involved in drug trafficking, it was found

out through the telephone intervention works that took place by Judicial Order that a group of people related to a

lieutenant of the Spanish Military Police (Guardia Civil) were trying to perform a drug trafficking operation (hashish). The

criminal organisation got the drug that came from Morocco and, for a price, it was delivered to another organisation in

Spain comprised of British and Irish people. Being their chief, Patrick Joseph Mangan, the person that paid for the drug.

The representative of the group in Costa de Sol was identified as Anthony Joseph O’Neill who received orders from

Patrick Joseph Mangan as well as the money to buy the drug. That is the reason why, only after the policy (sic)

investigation of the criminal group and after listening to the conversations held between him and John Anthony Joseph

O’Neill, conversation in which John Anthony Joseph O’Neill received orders and the money from Patrick Joseph Mangan, it

has been possible to find out the connection of Patrick Joseph Mangan with the facts under investigation. When they

both spoke by telephone and spoke about ‘Big Fella’ they might be referring to Mauricio Alejandro Teutsch Ovalle,

another defendant in the proceedings that belongs to another organised group in charge of getting the drug from

Morocco. Since that person also had his telephoned intervened it has been possible to find out about the conversations

he used to have with John Anthony Joseph O’Neill and therefore the connection of Patrick Joseph Mangan with the facts

under investigation.

In order to clarify the kind of participation that Patrick Joseph Mangan alias ‘The General’ and alias ‘The Old’ has in the

facts, a file is attached with the original conversations that have been monitored by a Judicial Order. In those

conversations the telephone number 6341 67588 is used by O’Neill and the telephone number 353 85 840 2653 is used by

Patrick Mangan.”

6. The information obtained by the Spanish authorities upon which they seek the surrender of the appellant was obtained from

information gleaned from listening to a telephone call made to or from the Spanish phone of Mr. O’Neill of which the Spanish

authorities were lawfully authorised to intercept. The contention that the information was obtained from tapping Mr. O’Neill’s Spanish

phone has not been challenged.

7. Following the conclusion of the High Court hearing, and on the making of the Order to surrender the appellant to Spain, the

appellant expressed his desire to appeal the decision of the High Court and sought a Certificate pursuant to s. 16(11) of the EAW Act

2003, as amended. That application was considered by the High Court, and on the 22nd March 2017 Donnelly J. expressed herself

satisfied that the decision of the High Court involved a point of law of exceptional public importance and that it was desirable in the

public interest that an appeal should be brought to this Court. The point of law of exceptional public importance was summarised in

two questions, namely:-

(i) Is a citizen’s constitutional right to privacy engaged if, without his knowledge or consent, his telephone conversations

with a third party not present in this jurisdiction or listened to, recorded and / or transcribed by the servants or agents of

another State when the citizen was present within this State and at the time that his conversations were recorded the

phone tap was directed at the phone of the third party by judicial order of the other State and where there is no

evidence that the interception of the conversations occurred within this jurisdiction?

and

(ii) If his constitution right to privacy is engaged, is the surrender of the citizen prohibited by s. 37(1)(b) of the European

Arrest Warrant Act 2003, as amended, in circumstances, where, if surrendered it is intended at his trial in the issuing

State to rely on such telephone conversations as evidence against him?

8. Crucial to this appeal is the finding of fact of the High Court that the gathering of the information by the Spanish authorities was

from its tap on Mr. O’Neill’s phone and, importantly, not on the appellant’s Irish telephone. The learned High Court judge stated:-

“The finding that it was not Mr. Mangan’s phone that was the subject of the telephone tapping authorisation in Spain

leads inexorably to the conclusion that the interception occurred in Spain, or at the very least, did not occur in Ireland

(as the Spanish authorities could have obtained lawful authority to tap the telephone of Mr. O’Neil in another country).

This is because the Spanish Authorities must be presumed to have acted lawfully and must be presumed not to have

violated both the respondent’s [the appellant in this appeal] personal rights and the integrity of the State.”

9. In Balmer v. Minister for Justice and Equality [2016] IESC 25, O’Donnell J. said:-

“44. Article 29 of the Constitution outlines that Ireland affirms its “devoted to the ideal of peace and friendly cooperation

amongst nations founded on international justice and morality”. This statement encapsulates a key principle applicable to

the circumstances of this case. Cooperation implies some give and take. It also focuses attention on reciprocity, and

the equality of sovereign states. The making of an extradition treaty, adherence to a convention on extradition, the

implementation of a Framework Decision, and adherence to international decisions in areas of family law may all raise

issues when surrender or return is sought. It is also necessary to appreciate that those issues arise under the same

instrument which permits Ireland to seek the surrender of suspects for trial of offences alleged to have occurred in

Ireland in respect of which Ireland has jurisdiction, or for the return of individuals to the jurisdiction of the Irish courts.

It is not, therefore, a case of the Irish Constitution controlling events abroad (in which case the only question would be

whether the acts alleged amount to a breach of the Constitution); it is, as already observed rather that the Irish court

is observing events abroad. Moreover, those events are observed through the lens of Article 29 requiring friendly

cooperation and Articles 1 and 5 which, in asserting sovereignty, require the respect of the sovereignty of other

countries. The events, with which we are concerned here, are not private transactions between individuals. They are,

by definition, the application of the criminal law within the territory of a sovereign state (in most cases two, and in

respect of, its own citizens), or the execution of sentences imposed by other courts. These are key attributes of

sovereignty of foreign friendly states, whose sovereignty we are bound by the Constitution to respect, in the same way

as we expect respect for matters within our own jurisdiction. That is why, in my view, it is correct to speak of s. 37 of

the [2003] Act as applying only to matters of egregious breach of fundamental principles of the Constitution or when

something is so proximate a consequence of the court’s order and so offensive to the Constitution as to require a

refusal of surrender or return. It may be that the concept of friendly cooperation may also permit or require steps to be

taken which would not have been taken in an earlier age, and not merely the provisions of the Irish Constitution have

been altered, but also because the area and content of international cooperation has extended. Such cooperation is

however, not unlimited. It is for example, by the terms of the Constitution itself subject to justice and morality. There

are also examples of limitations on this principle by consent, or international agreement or otherwise. It is neither

necessary nor desirable to explore these circumstances here, since they were not adverted to in argument. It is enough

to identify the focus of the analysis for the purpose of s. 37, which, in my view, explains the application of the Brennan

approach”

10. At the heart of this appeal is the contention by the appellant that the appellant’s Irish telephone was intercepted unlawfully by

the Spanish authorities. It is however accepted by the appellant that the relevant conversation(s) listened to by the Spanish

authorities were those communicating with Mr. O’Neill’s phone either by way of incoming or outgoing calls to or from that phone. It is

not suggested that any interception of the appellant’s phone otherwise occurred. It is noteworthy that the lawfulness of the Spanish

order has never been challenged in the Spanish Courts, the appropriate venue in which any such challenge should be made and

determined. There is a presumption in s. 4A of the Act of 2003 that an issuing State will comply with the requirements of the 2002

Framework Decision which in turn respects fundamental rights and it is to be assumed that a Court in Spain would afford the appellant

his appropriate rights in that jurisdiction, including his right to respect for his private and family life.

11. The case of MJE v. Damien McLoughlin (Unreported High Court 20th October 2017) concerned a claim that the respondent, if

surrendered, on foot of an EAW, would be subject to inhuman and degrading treatment in a prison in Northern Ireland. In the course

of her judgment, Donnelly J. observed:-

“It is also appropriate to note that the CJEU referred to the principle of mutual recognition on which the EAW system is

based as being founded upon the mutual confidence between member States and their national legal systems are

capable of providing the equivalent and effective protection of fundamental rights recognised at E.U. level. The CJEU

recognise that limitations of the principles of mutual recognition and mutual trust can be made in exceptional

circumstances. In consequence thereof the CJEU set out the principles referred to above. Under the Act of 2003 there is

a presumption that an issuing State will comply with its obligations under the Framework Decision which of course

includes respect for fundamental rights.”

12. The High Court made the following finding of fact:

“From the information before the court, I am satisfied that the respondent only came to the attention of the Spanish

authorities through the telephone conversations that were already being tapped. What the Spanish authorities rely upon

are the interceptions of the phone of John Anthony Joseph O’Neill. Indeed, it is striking that the respondent maintains

vigorously that his prosecution is a direct affect of the taped telephone conversations, however the Court is satisfied

that on the evidence before it the taping was of Mr. O’Neill’s telephone. The Court is satisfied that all of the evidence in

the EAW and additional information, points overwhelming in a single direction i.e. that the alleged involvement of the

respondent in this drug trafficking is based upon the telephone tapping of Mr. John Anthony Joseph O’Neill and the

recording of conversations between John Anthony Joseph O’Neill and Patrick Joseph Mangan. Indeed it is noteworthy that

the respondent in this case has not sought to put before the court any evidence that might show that during the course

of his detention in Spain on this alleged offence for a period of about two years, it was ever alleged that his phone had

been tapped. Thus, while the respondent had every opportunity to contest what has been stated by the issuing judicial

authority, he has not made any attempt to do so.”

13. The issue raised in the answer to the first question certified by the learned High Court judge is whether the right of privacy that

the appellant enjoys under the Irish Constitution, both as a citizen of this jurisdiction and more particularly, when communicating by

telephone from this jurisdiction is without limitation. The learned High Court judge expressed the view that the suggestion that a

person’s mere presence in this jurisdiction creates an entitlement to privacy no matter where on the globe he may communicate with

and that such communication may only be interfered with by an authorisation lawfully obtained in accordance with Irish law, is not a

tenable proposition.

14. The case of Kennedy and Ors v. Ireland and The Attorney General [1987] I.R. 587 was concerned with a claim for damages for

the unlawful tapping of the telephones of two political journalists between May and November 1982. In the course of his judgment

Hamilton P. (as he then was) said:-

“Though not specifically guaranteed by the Constitution, the right of privacy is one of the fundamental personal rights of

the citizen which flowed from the Christian and democratic nature of the State. It is not an unqualified right. Its exercise

may be restricted by the constitutional rights of others, by the requirements of the common good and is subject to the

requirements of public order and morality.”

15. He also stated (at page 593):-

“The nature of the right to privacy must be such as to ensure the dignity and freedom of an individual in the type of

society envisaged by the Constitution, namely, a sovereign, independent and democratic society. The dignity and

freedom of an individual in a democratic society cannot be ensured if his communications of a private nature, be they

written or telephonic, are deliberately, consciously and unjustifiably intruded upon and interfered with. I emphasise the

words "deliberately, consciously and unjustifiably" because an individual must accept the risk of accidental interference

with his communications and the fact that in certain circumstances the exigencies of the common good may require

and justify such intrusion and interference..”

16. Section 98 of the Postal Telecommunications Services Act 1983 provides that:-

“(1) A person who:-

(a) intercepts or attempts to intercept, or

(b) authorises, suffers or permits another person to intercept, or

(c) does anything that will enable him or another person to intercept, telecommunications messages being

transmitted …shall be guilty of an offence.”

17. Sub section (2) provides that no offence is committed in a number of specific instances, including in circumstances where the

interception is lawfully authorised.

18. The Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1983 provides for the authorisation of

interceptions for the purpose of criminal investigation or in the interests of the security of the State in very restricted

circumstances.

19. Lawfully permitted interception of telephones undertaken in compliance with statutory provision in this country enables garda

officers to eavesdrop on communications on a particular telephone. Such communications of necessity include those emanating from

that phone directed towards another telephone and those coming from another telephone into that particular phone. For such an

authorisation to mean anything else would be a nonsense and would be unworkable and pointless. The very nature of a telephone is

that it acts as a device to facilitate communication between two parties who are physically separated by distance from each other.

This process clearly involves at least two telephones and in practice often involves parties communicating with each other from

different jurisdictions.

20. A lawfully permitted phone tap in this country permits the listening into of a conversation between the phone which is the subject

of the authorisation and another telephone which is not the subject of such authorisation. Any suggestion that only conversations

between telephones which are both the subject of interception orders can be listened to is as meaningless as it is impractical. This

observation applies equally to telephone conversations between the lawfully intercepted telephone and another Irish telephone or a

foreign phone and whether they are being used in or outside Ireland.

21. Balmer is authority for the contention that Ireland does not export its Constitution. It follows therefore that the Irish

constitutional right to privacy does not apply to Spain and therefore the provisions of the Constitution are not engaged in relation to

activity undertaken in that State including the lawful interception within that State of communications to or from telephones in that

State.

22. In the particular circumstances of this case the appellant’s constitutional right to privacy, under the Irish Constitution, is not

engaged. The answer to question 1 is therefore No.

23. Having regard to the negative response to the first question it follows that the second question does not require to be answered.

24. In the circumstances the Court will dismiss the appeal and will uphold the decision of the High Court for the surrender of the

appellant to Spain. The Court is satisfied that his surrender does not breach either the appellant’s constitutional or ECnHR rights.