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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Minister for Justice & Equality v Maguire, Minister for Justice & Equality v Farrell [2020] IEHC 77 (14 February 2020)
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Cite as: [2020] IEHC 77

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THE HIGH COURT
[2020] IEHC 77
[2017 No. 58 EXT]
BETWEEN
MINISTER FOR JUSTICE & EQUALITY
AND
CIARAN MAGUIRE
THE HIGH COURT
APPLICANT
RESPONDENT
[2017 No. 59 EXT]
BETWEEN
MINISTER FOR JUSTICE & EQUALITY
APPLICANT
AND
SEAN PAUL FARRELL
RESPONDENT
JUDGMENT of Mr. Justice Binchy delivered on the 14th day of February, 2020
1.       By these applications, the applicant seeks the surrender of each of the respondents
pursuant to European Arrest Warrants dated 10th March, 2017 (“the EAWs”) for the
purpose of the prosecution of each of the respondents arising out of the same events that
occurred in Northern Ireland on 18th June, 2015, in which it is alleged that each of the
respondents played an active part.
2.       The hearing of the applications commenced on 5th December, 2019, and concluded on
6th December, 2019. However, further submissions were received by the Court on 17th
December, 2019 in light of further information provided, to which I refer below. The
identity of the respondents is not in dispute and I am satisfied that the persons before the
Court are the respondents named in the EAWs.
3.       The issuing judicial authority (“IJA”) in each case is stated, at para. I of the EAWs, to be
the District Judge (Magistrates’ Court) sitting at Laganside Court, Belfast Magistrates’
Court. The EAWs were both endorsed by this Court on 20th March, 2017.
4.       In each case it is stated that two warrants of arrest have been issued (for each
respondent) in respect of one offence of attempted murder and one offence of possession
of explosives with intent. For the offence of attempted murder, the IJA has in each case
ticked the box for “murder, grievous bodily injury” at para. E (1) of the EAWs. There was
no dispute about this, and accordingly it is not necessary for the applicant to demonstrate
correspondence in relation to these offences. In relation to the offence of unlawful and
malicious possession and control of an explosive substance, the applicant submits that on
the facts of this case (which I address below) the offence corresponds to an offence under
s. 3(1)(b) of the Explosive Substances Act, 1883 (as amended by s. 4 of the Criminal Law
(Jurisdiction) Act, 1976 and s. 36 of the Criminal Justice Act, 1999) which provides:-
“3(1) A person who in the State or (being an Irish citizen) outside the State unlawfully
and maliciously –
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(a) …
(b) Makes or has in his possession or under his control an explosive substance
with intent by means thereof to endanger life, or cause serious injury to
property, whether in the State or elsewhere, or to enable any other person so
to do,
Shall, whether any explosion does or does not take place, and whether any injury
to person or property is actually caused or not, be guilty of an offence and, on
conviction on indictment [shall be liable to a fine or imprisonment] for a term not
exceeding 20 years and the explosive substances shall be forfeited.”
5.       It was not argued on behalf of the respondents that the actions allegedly undertaken by
the respondents as set forth in the EAWs do not correspond to this offence. I am satisfied
that the actions, if committed in this jurisdiction (or indeed outside the State if committed
by an Irish citizen) would indeed constitute an offence under Irish law and accordingly
correspondence is established as regards this offence.
6.       The EAWs state that the offence of attempted murder is subject to a sentence of
imprisonment for life, and possession of explosives with intent is also subject to a
sentence of imprisonment for life. Accordingly, minimum gravity is established in relation
to each offence.
7.       At the hearing of these applications, I was satisfied that none of the matters referred to in
ss. 21A, 22, 23 and 24 of the European Arrest Warrant Act 2003 (as amended) (the “Act
of 2003”) arise, and that the surrender of the respondents is not prohibited for any of the
reasons set forth in any of those sections.
Description of actions of respondents as set forth in EAWs
8.       At paragraph E of the EAWs it is stated that on 18th June, 2015, at approximately 02.45
hours, a serving police officer in Northern Ireland awoke and looked out her bedroom
window to see a male on the ground at the driver’s door of her husband’s vehicle. Her
husband is also a serving police officer. She knocked at the window causing the male to
flee and then called the police. At the scene police found a device underneath the police
officer’s car, which was found to be an improvised explosive device.
9.       Police officers travelling to the scene observed two vehicles driving in convoy at high
speed from the direction of the town of Eglinton. These vehicles travelled across the
border, but in the meantime the Police Service of Northern Ireland (“PSNI”) had passed
on descriptions of the vehicles to An Garda Síochána, and a Garda vehicle identified one
of these vehicles passing through the village of Killygordon (15km from Lifford) and gave
chase to the vehicle. The vehicle was a Volkswagen Passat and matched the description
of one of the vehicles given by the PSNI to An Garda Síochana. The Gardaí successfully
apprehended the Passat which had three male occupants. All three were arrested on
suspicion of membership of an illegal organisation. The driver of the Passat is alleged to
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be one of the respondents, Mr. Maguire. The other occupants were the other respondent,
Mr. Farrell, and the third is stated to be Mr. Seán McVeigh.
10.       The EAW relating to Mr. Farrell states that he was taken to Milford Garda Station where
he was interviewed by Gardaí after caution and subsequently released without charge.
Mr. Farrell was found to have in his possession a Toyota car key. The other car observed
travelling in convoy with the Volkswagen Passat was a Toyota. The registration number
of both the Passat and the Toyota had been noted and both vehicles were identified as
having been stolen. The Toyota key taken from Mr. Farrell was tested on the Toyota
(which was later recovered) and it successfully worked in the door locks and ignition. Car
mats from the vehicles were both found to have explosive residue. Forensic examination
of the DNA profile recovered from the Passat matched Mr. Farrell’s DNA.
11.       Mr. Maguire was taken to Letterkenny Garda Station where he was also interviewed by
Gardaí (after caution) and released without charge. His DNA profile was recovered from a
different pair of gloves found in the vehicle. A low quantity of explosive material was
detected in one of the gloves, and also on jeans and a Wrangler hooded coat seized from
Mr. Maguire.
12.       Importantly, during the course of this hearing it was acknowledged by the applicant that
while in custody, each of the respondents received the standard form of caution that they
would receive in this jurisdiction to the effect that they were not obliged to say anything
but that anything that they might say would be taken down in writing and might be given
in evidence. It is common case that this is the extent of the caution given to the
respondents while detained by the Gardaí for questioning, and that the caution did not
extend to warning them that, if they remained silent in custody, inferences might be
drawn from that silence in the event that they were surrendered to Northern Ireland for
trial in that jurisdiction. It is also common case that both respondents elected to exercise
their right to remain silent and that neither made a statement of any kind to the Gardaí.
13.       It is relevant at this juncture also to record that prior to the hearing of this application,
the respondents had each issued judicial review proceedings against the applicant
whereby they sought orders of mandamus requiring the applicant to respond to requests
for information in relation to and arising out of their detention by the Gardaí, and further
sought an order of mandamus requiring the applicant herein to provide information
requested by the applicant, purportedly pursuant to the provisions of Directive
2012/13/EU of the European Parliament and of the Council of 22nd May, 2012, on the
right to information in criminal proceedings (“the Directive”). The reliefs sought were
refused both in the High Court by Donnelly J. in a decision delivered on 11th February,
2019, and, subsequently, in the Court of Appeal in a decision delivered by that court
(Kennedy J.) on 1st November, 2019. This latter decision in particular has some
relevance to these proceedings in the context of the reliance placed by both respondents
on the Directive, in opposition to this application.
14.       In its decision in the judicial review proceedings, the Court of Appeal also indicated that
judicial review was not the appropriate mechanism for seeking orders for delivery of the
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documentation and other materials that they sought, and that the appropriate application
was for an order of discovery of the same. Accordingly, the respondents each then
moved applications for discovery before this Court, which applications were dismissed in a
decision delivered by this Court on 26th November, 2019. The respondents then appealed
that decision, and that appeal was dismissed in a judgement of the Court of Appeal
delivered on 4th December, 2019.
15.       A decision was taken by the Director of Public Prosecutions not to try the respondents in
this jurisdiction for the offences for which their surrender is sought in Northern Ireland.
Materials gathered by the Gardaí in the course of their investigation have been handed
over to the authorities in Northern Ireland. Although, as will be seen, the respondents
contend that there was a violation of their constitutional rights while in custody, no
allegation was made that these materials were obtained unlawfully by the Gardaí.
Points of objection
In the case of Ciaran Maguire
16.       Points of objection were first filed on behalf of Mr. Maguire on 3rd May, 2017. Seven
objections were raised, but just one of these was pursued at the hearing of the
application i.e. that the surrender of the respondent is prohibited by s. 37 of the Act of
2003, because it would be in breach of his constitutional rights and in particular those
rights guaranteed by Article 38 and 40 of Bunreacht na hÉireann. Specifically, it is
pleaded that:-
(i.) Evidence taken in violation of his constitutional rights would be tendered against
him at his trial.
(ii.) That if surrendered to Northern Ireland he would not enjoy the constitutional
protection of his life, liberty and health as guaranteed by Bunreacht na hÉireann.
17.       A further point of objection was filed on behalf of Mr. Maguire on 6th March, 2019. By
this objection, it is pleaded that, if tried for the offences described in the EAW, he will be
required to give evidence in his own defence, failing which an adverse inference may be
drawn by the court based upon his failure to give such evidence in circumstances where
the court is satisfied that the prosecution case against him is sufficiently strong to require
an answer from the defendant. This objection arises out of Articles 3 and 4 of The
Criminal Evidence (Northern Ireland) Order 1988 (“the 1988 Order”), and it is claimed
that this is contrary to Mr. Maguire’s constitutional right to trial in due course of law
pursuant to the provisions of Article 38 of Bunreacht na hÉireann.
18.       In their written submissions, counsel for Mr. Maguire also submitted that he was not
adequately warned, while in Garda custody, of a real and serious risk of an
unconstitutional intrusion of his right to silence in the trial process in Northern Ireland.
19.       At the commencement of the hearing of this application, counsel for Mr. Maguire put
forward a further objection on his behalf for the first time. While counsel for the applicant
submitted that it was too late for the respondents to advance new objections, he
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conceded that the applicant would not be prejudiced if the objection were allowed, and
accordingly I allowed the objection to be made on behalf of Mr. Maguire. As far as the
formal pleadings are concerned, counsel for Mr. Maguire submitted that this new
objection fell within a general objection made by Mr. Maguire in his points of objection of
3rd May, 2017, where it is pleaded that the EAW does not contain all of the information or
details required by the Act of 2003. Specifically, however, it was now asserted on behalf
of Mr. Maguire that the EAW does not contain the information required by the Directive.
Article 1 of the Directive provides:-
Subject matter
This Directive lays down rules concerning the right to information of suspects or
accused persons, relating to their rights in criminal proceedings and to the
accusation against them. It also lays down rules concerning the right to information
of persons subject to a European Arrest Warrant relating to their rights.”
20.       Article 3 of the Directive then deals with the entitlement to information about rights of
suspects or accused persons, and although it is not stated, these by implication are rights
upon arrest, such as the right of access to a lawyer and the right to remain silent. Article
4 of the Directive provides that Member States shall ensure that suspects or accused
persons who are arrested are provided with a written letter of rights, as well as, inter alia,
the right of access to the materials of the case.
21.       Article 5 is headed “Letter of Rights in European Arrest Warrant Proceedings” and is the
only article that deals specifically with such proceedings in the Directive. It was not
contended by the respondents or argued on their behalf in these proceedings that they
did not receive their rights under Article 5 of the Directive.
22.       Article 6 of the Directive deals with the right to information about the accusation, and
Article 7 sets out the rights of access to the materials of the case. Article 7.1 provides:-
“Where a person is arrested and detained at any stage of the criminal proceedings,
Member States shall ensure that documents related to the specific case in the
possession of the competent authorities which are essential to challenging
effectively, in accordance with national law, the lawfulness of the arrest or
detention, are made available to arrested persons or their lawyers.”
This right is expanded upon and set out in greater detail in sub articles 7.2 – 7.5.
23.       Counsel for Mr. Maguire, in advancing this argument, accepts that the Court of Appeal, in
the judicial review proceedings, has already addressed the entitlement of persons
arrested pursuant to a European Arrest Warrant, to information pursuant to the provisions
of the Directive in this regard it is helpful to set forth the conclusions of Kennedy J. on the
issue at paras. 74 – 77 of her decision:-
“74. Article 1 of the Directive addresses the subject matter of the Directive. The terms
of the article draw a clear distinction between the rights of suspects or accused
persons relating to criminal proceedings and to the accusation against them and the
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right to information of persons subject to a European Arrest Warrant. Article 7
which concerns the access to documents does not have application to a person
arrested on foot of a EAW. The provision under the Directive which concerns EAW
proceedings is limited to that of Article 5 which provides for a letter of rights.
Annex II sets out a model letter of rights as provided for in Article 5 whereas the
model for rights to be provided for in terms of Article 4 which concerns suspects or
accused who are arrested or detained is set out in Annex I. It is therefore clear
that the provisions of Article 7 do not apply to a person arrested on a EAW.
75. The appellants are not facing criminal proceedings in this jurisdiction and therefore
cannot rely on the provision of Article 6 or Article 7. Article 5 applies to those who
are arrested for the purpose of the execution of a European Arrest Warrant. Those
persons must be provided promptly with an appropriate letter of rights in terms of
Annex II but cannot rely on the provisions of Article 6 or 7.
76. In my view there is no basis to distinguish the decision in EP on the basis that the
appellants are seeking information from the authorities in this jurisdiction rather
than from the issuing state. Donnelly J. interpreted the Directive and the rights of
the Directive provides for persons arrested on criminal charges and arrested on a
EAW. The interpretation is not therefore based on whether the information sought
from the requesting State or the issuing State.
77. In the circumstances I am satisfied that the trial judge was correct in finding that
there was no evidence that the appellants’ rights under the Directive would not be
available to them in the requesting State should they be surrendered.”
24.       Counsel for Mr. Maguire, while acknowledging the decision of the Court of Appeal in the
judicial review proceedings as regards the interpretation of the Directive argues that that
decision was in a particular context, and that the context is not the same when this Court
is giving consideration to the application to surrender a person on foot of a European
Arrest Warrant. He submits that there is more at stake than what was sought in the
judicial review proceedings and that in an application such as this, the issue is about the
obligations of the issuing state to ensure that when somebody is arrested elsewhere in
Europe pursuant to a European Arrest Warrant, that person is informed of the basis for
the arrest and provided with relevant information about the arrest, and in particular is
provided with information as regards his/her right to appeal or to challenge in the issuing
state the underlying domestic arrest warrant on which the issue of the European Arrest
Warrant depends. He argued also that the principle of equivalence in European law
requires that persons arrested on foot of a European Arrest Warrant should receive
equivalent treatment to those arrested pursuant to national arrest warrants, and it would
be anomalous and contrary to that principle if those arrested pursuant to a European
Arrest Warrant did not enjoy the full range of rights and entitlements provided by the
Directive.
25.       In advancing these arguments, counsel for Mr. Maguire relied upon a recent reference
made by a court in Bulgaria to the Court of Justice of the European Union (“CJEU”), in
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which the Bulgarian court posed questions as to the applicability of the Directive and in
particular Articles 4, 6 and 7 of the Directive, to a person who has been arrested on the
basis of a European Arrest Warrant. This reference appears to have been procured
through an internet search and the precise status of the reference is unknown. However,
that is not to doubt that such a reference has been made. Counsel for Mr. Maguire
submits that notwithstanding the decision of the Court of Appeal as regards the limited
relevance of the Directive to European Arrest Warrant proceedings, this Court should
defer a decision on this application pending a decision of the CJEU on the reference by the
Bulgarian court, or alternatively that this Court should make a similar reference to the
CJEU.
26.       In this regard, counsel for Mr. Maguire further argues that the Court should have regard
to recent decisions of the CJEU concerning the entitlement of public prosecutors to issue
European Arrest Warrants. Initially, counsel referred to cases such as OG (C 508/18), PI
(C 82/19 PPU) and PF (C 509/18). These cases address issues arising out of the issue of
European Arrest Warrants in some Member States by prosecutors, rather than by judges,
and focus on the requirement under the Framework Decision that the issuance of a
European Arrest Warrant must be subject to a dual level of protection, the first being at
the stage of issue of a national arrest warrant , and the second being at the point of issue
of a European Arrest Warrant. They consider how this dual level of protection may be
achieved where it is a prosecutor issues the European Arrest Warrant.
27.       Because it was indicated to the Court that there were still further decisions of the CJEU
awaited, in which these matters are also addressed, and which were due to be delivered
on 12th December, 2019 and which might be of relevance to the within proceedings, the
proceedings were adjourned further to 17th December, 2019. The decisions which were
awaited were indeed delivered on 12th December, 2019, although no official translations
were available in English. In any case, counsel for Mr. Maguire produced supplemental
submissions arising out of those decisions on the basis of unofficial translations. In the
case of XD (C-625/19 PPU), in a passage relied upon by the respondents, the CJEU
stated, as regards effective judicial protection in European Arrest Warrant applications
that:-
“The Framework Decision 2002/584 forms part of a comprehensive system of
guarantees relating to the effective judicial protection provided for by other Union
rules, adopted in the field of judicial cooperation in criminal matters, which
contribute to facilitating the exercise of the rights of the persons sought on the
basis of a EAW even before he or she is handed over to the Member State of
programme.”
(The use of the words “of programme” are not understood and may be a translation
error.)
28.       An identical paragraph appeared in another decision delivered on the same date in the
case of YC (C-626/19 PPU) at p. 7 thereof. In these cases, the CJEU held that it is
permissible for the second level of protection in the issue of a European Arrest Warrant to
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be provided by means other than judicial oversight in the issue of the warrant, such as by
providing a mechanism to appeal or otherwise challenge the issue of the European Arrest
Warrant, either before or after the surrender of the requested person (see para. 70 of the
decision in YC), or alternatively by affording the requested person the opportunity to
challenge the national arrest warrant, which formed the basis for the issue of the
European Arrest Warrant, as in XD. In both judgments the CJEU, in the course of its
judgment made reference to the provisions of another Directive, Directive 2013/48/EU on
the right of access to a lawyer in criminal proceedings (the “2013 Directive”). At para. 73
in YC it is stated:-
“73. Article 10 of Directive 2013/48/EU of the European Parliament and of the Council of
the 22nd October, 2013, on the right of access to a lawyer in criminal proceedings
and in proceedings relating to the warrant of European judgment, on the right to
inform a third party upon deprivation of liberty and on the right of persons deprived
of their liberty to communicate with third parties and with consular authorities…,
requires the competent authority of the executing Member State to inform, without
undue delay after deprivation of liberty of the persons whose surrender is
requested, that they have the right to assign a lawyer in the issuing Member
State.”
29.       Neither Ireland nor the United Kingdom have adopted the 2013 Directive. Counsel
argued that the fact that Ireland has not done so serves to emphasise the importance of
the applicability of the Directive in European Arrest Warrant proceedings. It is submitted
that the EAWs are invalid and defective, since they did not contain information on the
availability, under the laws of the issuing state, of challenging the lawfulness of the
issuing of the EAWs, and nor was such information otherwise provided to the
respondents.
In the case of Sean Paul Farrell
30.       Points of objection were first delivered on behalf of Mr. Farrell on 5th May, 2017. Four
objections were raised by this notice, but just one of these objections was pursued at the
hearing of this application. By this objection, Mr. Farrell puts the applicant on full proof
that the EAW relating to Mr. Farrell is compliant with the Act of 2003, and that the
surrender of Mr. Farrell would be in accordance with the Act of 2003 and the Council
Framework Decision of 13th June, 2002, on the European arrest warrant and the
surrender procedure between Member States (2002/584/JHA) (the “Framework
Decision”).
31.       A further point of objection was delivered on behalf of Mr. Farrell on 27th February, 2019.
This is in identical terms to the further point of objection delivered on behalf of Mr.
Maguire on 5th March, 2019, which I have set out above.
32.       Mr. Farrell also adopted the objection advanced, for the first time, on behalf of Mr.
Maguire at the commencement of the hearing of this application, as summarised at para.
19 above.
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33.       Each of Mr. Farrell and Mr. Maguire adopted the objections made by the other. All of the
objections pursued by them at the hearing of the application are summarised above; in
response to a specific question from me, counsel for the respondents confirmed that they
were not pursuing any of the other objections made by them in their points of objection.
The Criminal Evidence (Northern Ireland) Order 1988
34.       Since they are so central to these proceedings I set out below the provisions of Articles 3
and 4 of the 1988 Order:-
“Circumstances in which inferences may be drawn from accused's failure to mention
particular facts when questioned, charged, etc.
3.— (1) Where, in any proceedings against a person for an offence, evidence is given
that the accused—
(a) at any time before he was charged with the offence, on being questioned
under caution by a constable trying to discover whether or by whom the
offence had been committed, failed to mention any fact relied on in his
defence in those proceedings; or
(b) on being charged with the offence or officially informed that he might be
prosecuted for it, failed to mention any such fact, being a fact which in the
circumstances existing at the time the accused could reasonably have been
expected to mention when so questioned, charged or informed, as the case
may be, paragraph (2) applies.
(2) Where this paragraph applies—
(a) the court, in determining whether to commit the accused for trial or whether
there is a case to answer;
(b) a judge, in deciding whether to grant an application made by the accused
under
(i) Article 5 of the Criminal Justice (Serious Fraud) (Northern Ireland)
Order 1988 (application for dismissal of charge where a case of fraud
has been transferred from a magistrates' court to the Crown Court
under Article 3 of that Order); or
(ii) paragraph 4 of Schedule 1 to the Children's Evidence (Northern
Ireland) Order 1995 (application for dismissal of charge of violent or
sexual offence involving child in respect of which notice of transfer has
been given under Article 4 of that Order); and
(c) the court or jury, in determining whether the accused is guilty of the offence
charged,
may—
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(i) draw such inferences from the failure as appear proper;
(2A) Where the accused was at an authorised place of detention at the time of the
failure, paragraphs (1) and (2) do not apply if he had not been allowed an
opportunity to consult a solicitor prior to being questioned, charged or informed as
mentioned in paragraph (1).
(3) Subject to any directions by the court, evidence tending to establish the failure
may be given before or after evidence tending to establish the fact which the
accused is alleged to have failed to mention.
(4) This Article applies in relation to questioning by persons (other than constables)
charged with the duty of investigating offences or charging offenders as it applies in
relation to questioning by constables; and in paragraph (1) “officially informed”
means informed by a constable or any such person.
(5) This Article does not—
(a) prejudice the admissibility in evidence of the silence or other reaction of the
accused in the face of anything said in his presence relating to the conduct in
respect of which he is charged, in so far as evidence thereof would be
admissible apart from this Article; or
(b) preclude the drawing of any inference from any such silence or other reaction
of the accused which could be drawn apart from this Article.
(6) This Article does not apply in relation to a failure to mention a fact if the failure
occurred before the commencement of this Article.
Accused to be called upon to give evidence at trial
4.—(1) At the trial of any person (other than a child) for an offence paragraphs (2)and
(4) apply unless—
(a) the accused's guilt is not in issue; or
(b) it appears to the court that the physical or mental condition of the accused
makes it undesirable for him to... give evidence;
but paragraph (2) does not apply at the conclusion of the evidence for the
prosecution, his legal representative informs the court that the accused will give
evidence or, where he is unrepresented, the court ascertains from him that he will
give evidence.
(2) Where this paragraph applies, the court shall, at the conclusion of the evidence for
the prosecution, satisfy itself (in the case of proceedings on indictment conducted
with a jury, in the presence of the jury) that the accused is aware that the stage
has been reached at which evidence can be given for the defence and that he can,
Page 11 ⇓
if he wishes, give evidence and that, if he chooses not to give evidence, or having
been sworn, without good cause refuses to answer any question, it will be
permissible for the court or jury to draw such inferences as appear proper from his
failure to give evidence or his refusal, without good cause, to answer any question.
(4) Where this paragraph applies, the court or jury, in determining whether the
accused is guilty of the offence charged, may—
(a) draw such inferences as appear proper from the failure of the accused to give
evidence or his refusal, without good cause, to answer any question;
(5) This Article does not render the accused compellable to give evidence on his own
behalf, and he shall accordingly not be guilty of contempt of court by reason of a
failure to do so.
(6) For the purposes of this Article a person who, having been sworn, refuses to answer
any question shall be taken to do so without good cause unless—
(a) he is entitled to refuse to answer the question by virtue of any statutory
provision, or on the ground of privilege; or
(b) the court in the exercise of its general discretion excuses him from answering
it.
(7) Where the age of any person is material for the purposes of paragraph (1), his age
shall for those purposes be taken to be that which appears to the court to be his
age.
(8) This Article applies—
(a) in relation to proceedings on indictment for an offence, only if the person
charged with the offence is arraigned on or after the commencement of this
Article;
(b) in relation to proceedings in a magistrates' court, only if the time when the
court begins to receive evidence in the proceedings falls after that
commencement.”
Further Information
35.       On my direction the central authority here made a request for further information of the
IJA by letter of 20th December, 2019, as follows:-
“1. Is it open to a trial court in the Issuing State (Northern Ireland) to draw inferences
pursuant to article 3 and/or article 4 of the Criminal Evidence (Northern Ireland)
order 1998 in connection with interviews outside the territory of the Issuing State
(Northern Ireland), specifically those conducted in Milford and Letterkenny Garda
stations with the two respondents?”
Page 12 ⇓
36.       A reply to this request for information was received from District Judge Fiona Bagnall,
presiding District Judge at Laganside Courts, by letter dated 10th January, 2020. In this
reply, District Judge Bagnall divided the question asked into two questions, as follows:-
1) Is it open to a trial court in the Issuing State (Northern Ireland) to draw inferences
pursuant to Article 3 and/or Article 4 of The Criminal Evidence (Northern Ireland)
Order 1988 in connection with interviews outside of the territory of the Issuing
State (Northern Ireland). Specifically, those conducted in Milford and Letterkenny
Garda Stations with the two respondents?
2) Is it open to a trial court in Northern Ireland to draw inferences pursuant to Article
4 of The Criminal Evidence (Northern Ireland) Order 1988 in connection with
interviews outside the territory of the issuing state, specifically those conducted in
Milford and Letterkenny Garda Stations with the two respondents?
37.       In reply to question 1, District Judge Bagnall stated:-
“In an interview conducted in Northern Ireland, the suspect is cautioned in
accordance with Article 3 of the Criminal Evidence (NI) Order 1988 as follows:
‘You do not have to say anything but I must caution you if you do not
mention when questioned something which you later rely on in court it may
harm your defence. If you do say anything it may be given in evidence.’
` In the circumstances of this case, where the Garda interviews have been conducted
without the caution under Article 3 being administered, the prosecution would not
ask the court to draw inferences pursuant to Article 3 of the 1988 Order and it is
not considered an adverse inference could be drawn by the trial court of its own
volition.”
38.       In answer to the second question posed, District Judge Bagnall replied as follows:-
“It is open to a court to draw an adverse inference under Article 4 of the 1988
Order if either accused does not give evidence on his own behalf at trial. However
this is an entirely separate matter to their decision not to answer questions during
Garda interview. Their position adopted at interview is not relevant to the inference
that can be drawn under Article 4. It should be noted that the ECHR in Murray v.
U.K. has found that the provisions of the 1988 Order did not constitute a violation
of Article 6 (1) of the Convention.”
Affidavits of Sean Devine BL
39.       Affidavits of laws were sworn on behalf of Mr. Farrell by Sean Devine BL, a member of the
Bar of Northern Ireland who has practiced in that jurisdiction continuously since 2007. He
is also a member of the Bar of Ireland. He deposes as to the possible impacts of Articles
3 and 4 of the 1988 Order on the trial of Mr. Farrell. The first affidavit was sworn on 4th
December, 2019, in advance of these proceedings, and his second affidavit was filed on
29th January, 2020, in order to address the response received by this Court from the IJA
Page 13 ⇓
to the request for additional information made by this Court pursuant to s. 20 of the Act
of 2003 referred to above.
40.       In his first affidavit, Mr. Devine states, at para. 20, inter alia:-
“In my opinion, having regard to the various statutory provisions relating to the
drawing of inferences from failure to answer questions, it is unlikely that the
prosecution would succeed in persuading a trial judge to draw adverse inferences
from the failure of Mr. Farrell to answer questions during Garda interview.
Regarding the jurisdiction of the trial judge to draw an adverse inference from the
silence of the accused at trial, it is highly likely, in my opinion, that any trial judge
in Northern Ireland would accede to an application by the Crown to draw such
inferences, based on the evidence adduced at trial other than his failure to answer
questions asked by Gardaí. However, I cannot say, as a matter of law, that the
trial judge would not be entitled to take into account the opportunity Mr. Farrell had
to offer explanations to Gardaí, which said opportunity was declined by him.
Indeed, the Crown will be likely to invite the Court to look at ‘all of the
circumstances’ when deciding whether to draw such inferences (and the extent of
those inferences) and that could include his decision not to respond to Gardaí
questioning.”
41.       In relation to the adverse inferences which may be drawn under Article 4 of the 1988
Order, Mr. Devine avers, at para. 31:-
“The judge must tell the jury that the burden of proof remains upon the prosecution
throughout and that the defendant is entitled to remain silent. An inference from
failure to give evidence cannot on its own prove guilt. Therefore, the jury must be
satisfied that the prosecution have established a case to answer before drawing any
inferences from silence. Importantly, and perhaps surprisingly, the judge should
not go further and say that the case is not strong and they should therefore be less
ready to draw an inference against him. The rationale being that this would involve
the judge making an assessment at the strength of the prosecution case which
would pre-empt the jury’s role.”
42.       In his second affidavit, Mr. Devine addresses the additional information provided by
District Judge Bagnall. In relation to Article 3 of the 1988 Order, he avers that while he
does not take issue with the response given by District Judge Bagnall, nonetheless he
believes “that the Crown will have a wide discretion as to how it puts its case and it is
highly likely that they will place before the Court a detailed exposition of Mr. Farrell’s
known movements and activities in the time immediately after the events that form the
subject of the charges in this case.” At paras. 14 and 15 of his second affidavit he
avers:-
“14. I say that the explanations from the parties about the fact that the interviews took
place in Milford Garda station and that, for example, no reliance is placed upon
those interviews as the ‘incorrect’ warning was given (i.e. a warning which would
Page 14 ⇓
not trigger the use of Article 3) could or would probably lead to judicial questions
concerning the wording of the warning that was given.
15. I say that the precise impact of this is difficult to quantify but I believe that any
impact could only be detrimental to an accused, even in the absence of a statutory
adverse inference under Article 3. I say further that this is especially so within the
context of trial proceedings in Northern Ireland, where practitioners and Courts are
conditioned to the fact that silence during interview can have very significant and
harmful effects upon an accused’s defence at trial, due to the existence of the 1988
Order for such a long time. I say that any trial Court in Northern Ireland would
expect the defence to be keen to adduce an exculpatory account, if given during
interview, and so the absence of such an account would inevitably lead to a
presumption that the accused remained silent. In my opinion, this could only accrue
to the detriment of the accused.”
43.       At para. 17 of his second affidavit he avers:-
“I say that the UK response dated 10th January 2020, composed with the kind
assistance of the PPSNI, is couched in suitably and appropriately qualified terms.
That is, it states that “it is considered that” the trial court could not, of its own
motion, take silence in the Garda Station into account in deciding the nature of the
adverse inference from silence in the trial. I would tend to agree with this
proposition, subject to the discussion above in terms of the fact that the existence
of these interviews will inevitably be a significant degree of focus upon Mr. Farrell’s
arrest and detention for a period of time which was consistent with him being
interviewed by police. Under normal circumstances, these interviews would, at the
very least, be referred to.”
44.       While each of the respondents filed their own points of objection, at hearing each adopted
the objections of the other to the application. The points of objection formally served by
each of the respondents each contain objections that were not pursued at the hearing of
the application, and which counsel for the respondents confirmed were not being relied
upon by the respondents. This decision, therefore, is concerned only with those
objections argued on behalf of the respondents at the hearing of the application, which I
address below.
Discussion and decision
45.       I will first address the arguments made as regards the entitlement to information
pursuant to the Directive. The respondents accept that the Court of Appeal has already
ruled, in the judicial review proceedings, on the interpretation and application of the
Directive to these proceedings. However, they seek to distinguish that decision and the
application that was then before that court from the arguments that they are making in
these proceedings that their clients have an entitlement to information under the
Directive. It is suggested that there is some distinction to be drawn between what is
described as a “disclosure matter” in the judicial review proceedings and the information
required to be given at the time of arrest on foot of the European Arrest Warrant.
Page 15 ⇓
46.       It is correct to say that the respondents, in seeking the reliefs they sought in the judicial
review proceedings relied on more than just the Directive, such as statutory regulations,
fair procedures and due process (see paras. 7-11 of the decision of Donnelly J. in this
Court). Also, some of the materials they sought by way of those proceedings were,
arguably, outside the scope of the Directive, even if the Directive was found to be
applicable, but there is no need to consider that possibility in any detail. I mention it only
because for these reasons there may be some subtle distinction to be drawn between the
context in which the Directive was invoked in the judicial review proceedings and the
context in which it is invoked in these proceedings. But if there is, it is so subtle as to be
insignificant.
47.       In para. 6 (ii) of her decision, Donnelly J. records that the respondents were seeking an
order of mandamus requiring the first respondent (in those proceedings) to provide the
information requested by the applicant pursuant to the provisions of EU Directive
13/2012. Both Donnelly J. and, on appeal the Court of Appeal ruled very clearly that the
provisions of the Directive which the respondents are seeking to invoke in these
proceedings are provisions which only have application when a person is arrested, in the
ordinary course of proceedings, to face charges in the same Member State in which that
arrest takes place, as distinct from upon arrest pursuant to a European Arrest Warrant.
The respondents are not charged with any criminal offence in this jurisdiction. In so far as
there was a criminal investigation here, it ended with the decision of the DPP not to
proffer charges against them. The Court of Appeal has clearly ruled that, in European
Arrest Warrant proceedings, the entitlement of arrested persons is restricted to Article 5
of the Directive. Furthermore, Donnelly J. had previously handed down a decision to
precisely the same effect in Minister for Justice Equality and Law Reform v. E.P.
[2015] IEHC 662. This Court is bound by those decisions.
48.       So far as the reference by the Bulgarian court to the CJEU is concerned, very little is
known about the status of that reference. There is nothing to indicate that it has been
accorded the expedited procedure. No authority was opened to this Court as to the
approach to be taken when a court is informed that questions that might be of relevance
to the deliberations of a court in one Member State, have been sent for consideration to
the CJEU by the courts of another Member State. However, in the particular
circumstances of this case, and having regard to:-
1) The uncertainty as to whether or not the reference of the Bulgarian Court has been
accorded the expedited procedure;
2) The objectives of the Framework Decision to provide a simplified and expeditious
system of surrender, between Member States, of persons wanted for prosecution of
offences or serving sentences handed down by a Member State;
3) The fact that this issue has already been the subject of two detailed judgments of
this Court, and one of the Court of Appeal.
Page 16 ⇓
It is my view that it would be both incorrect and undesirable for this Court to defer
decision on this application pending a decision from the CJEU on the reference made by
the Bulgarian court, or for this Court to make any reference of its own to the CJEU.
49.       While counsel for Mr. Maguire argued that, since neither Ireland nor the United Kingdom
have adopted the 2013 Directive, this lends even greater force to the argument that the
respondents should be entitled to receive the information provided for under the
Directive, I cannot accept this argument. The fact is that the 2013 Directive has not been
adopted by either the issuing state or the executing state in this application. It is, quite
simply, irrelevant to these proceedings. Moreover, the fact that it has not been adopted
either by this State or by the United Kingdom, cannot be used for the purpose of
overturning or in some fundamental way changing the interpretation of the Directive by
the Court of Appeal. The fact that this State has elected not to adopt one directive,
cannot be a basis to alter the meaning or interpretation of another.
50.       Insofar as reliance has been placed upon recent decisions of the CJEU, these cases were
all concerned with problems arising from the issue of European Arrest Warrants by
prosecutors. In the cases referred to above, the CJEU held that the possibility of
challenging the issue of a national arrest warrant or a European Arrest Warrant in the
issuing state can offer a solution to this problem. It appeared to take some comfort from
Article 10 (4) of the 2013 Directive, which deals with the right of access of a requested
person to a lawyer in the issuing state, presumably because that might help to fulfil the
rights of a requested person to challenge the validity of the national arrest warrant or the
European Arrest Warrant. I might add that it is notable that Article 10(6) of the 2013
Directive provides that the right of a requested person to appoint a lawyer in the issuing
state is stated to be without prejudice to the time limits set out in the Framework
Decision. In any case, it is clear that those recent decisions of the CJEU only have
practical application in those Member States in which the European Arrest Warrant is
issued by a prosecutor and not by a court. That does not arise in these proceedings. The
respondents have been accorded their dual level of protection through judicial oversight in
the issue of both the national arrest warrants and the EAWs.
51.       Finally, insofar as arguments were advanced on the basis of the principle of equivalence,
they were not developed in any meaningful way and no authorities were opened to the
Court as to its application in these circumstances. The principle of equivalence, in general
terms, is concerned with the obligation of Member States to ensure that the law of the
European Union is applied and enforced by Member States in a manner equivalent to the
domestic law of those states. It does not seem to me to be engaged at all in these
proceedings. There is no question of not applying either the Directive or the Framework
Decision in any manner that is less effective than domestic law. The fact that a person
arrested on foot of a European Arrest Warrant is not entitled to receive the same
information that he or she is entitled to receive if arrested on foot of a national arrest
warrant in respect of the same matters is in no way incongruous. The European Arrest
Warrant is the mechanism by which persons are surrendered in order to face charges (or,
as the case may be, to serve sentences) that are the subject of a national arrest warrant.
Page 17 ⇓
It is entirely logical that it is only upon the surrender of the person concerned to face
those charges that he or she will then be entitled to receive the information required by
the Directive. If these rights were to be engaged at the time that a person is arrested
pursuant to a European Arrest Warrant, it would, as I said above, frustrate the time limits
which are a key feature of the Framework Decision.
52.       For all of these reasons, I consider that the points of objection that have been raised on
the basis of the Directive or the reference made by the Bulgarian court to the CJEU, the
2013 Directive and the recent decisions of the CJEU must be rejected.
53.       I turn now to address the objections to surrender advanced on behalf of the respondents
as regards the entitlement of a trial court in Northern Ireland to draw inferences pursuant
to the 1988 Order. The first of these objections arises out of the possible application of
Article 3 of the 1988 Order, particulars of which are set out above. It is first necessary to
consider the opinion of Mr. Devine, counsel retained for Mr. Farrell, but relied upon also
by Mr. Maguire in relation to this objection. This opinion is expressed over the course of
two affidavits, the second being in response to the additional information received from
the IJA. As regards Article 3 of the 1988 Order, the most relevant parts of Mr. Devine’s
opinion are set out in the passages quoted from the affidavits of Mr. Devine at para.s 40,
42 and 43 above. Para.s 42 and 43 set forth passages from Mr. Devine’s second affidavit.
Para. 40 quotes from a passage of Mr. Devine’s first affidavit which was sent to the IJA
with the request for additional information. In its response of 10th January, 2020, to that
request, the IJA stated as regards this issue:-
“In the circumstances of this case, where the Garda interviews have been
conducted without the caution under Article 3 being administered, the prosecution
would not ask the court to draw inferences pursuant to Article 3 of the 1988 Order
and it is not considered an adverse inference could be drawn by the trial court of its
own volition.”
54.       The IJA then addressed whether or not adverse inferences might be drawn under Article 4
of the 1988 Order by reason of the failure on the part of the respondents to answer
questions at interview:-
“It is open to a court to draw an adverse inference under Article 4 of the 1988
Order if either accused does not give evidence on his own behalf at trial. However,
this is an entirely separate matter to their decision not to answer questions during
Garda interview. Their position adopted at interview is not relevant to the inference
that can be drawn under Article 4…”
55.       Mr. Devine addresses the additional information provided by the IJA in his second
affidavit. He addresses the matter at paras. 12 and following as follows:-
“12. I say that the trial judge would be likely to be made aware that the accused was
arrested and detained for two days. Furthermore, I say and believe that, even if
the Crown did not seek to adduce the fact that Mr. Farrell was interviewed, the
Page 18 ⇓
court could ask whether he was interviewed. In those circumstances, it would not
be open to the parties to mislead the court and so the likely and natural outworking
of this would be some judicial questioning in terms of the product of those
interviews.
13. I say and believe that a court in this jurisdiction would be naturally interested in the
accused’s responses to police questioning and would be accustomed to an interview
being a key part of the investigation. This would be the case even in the context of
a ‘no comment’ interview.
14. I say that the explanations from the parties about the fact that the interviews took
place in Milford Garda Station and that, for example, no reliance is placed upon
those interviews as the ‘incorrect’ warning was given (i.e. a warning which would
not trigger the use of Article 3) could or would probably lead to judicial questions
concerning the wording of the warning that was given.
15. I say that the precise impact of this is difficult to quantify but I believe that any
impact could only be detrimental to an accused even in the absence of a statutory
adverse inference under Article 3. I say further that this is especially so within the
context of trial proceedings in Northern Ireland, where practitioners and courts are
conditioned to the fact that silence during an interview can have very significant
and harmful effects upon an accused’s defence at trial, due to the existence of the
1988 Order for such a long time. I say that any trial court in Northern Ireland
would expect the defence to be keen to adduce an exculpatory account, if given
during interview, and so the absence of such an account would inevitably lead to a
presumption that the accused remained silent. In my view this could only accrue to
the detriment of the accused.
16. I say and believe that there is a prohibition on references to such interviews under
the law and Constitution of the Republic of Ireland, other than by way of formula
such as, ‘the accused was interviewed but nothing of probative value emerged’.
17. I say that UK response dated 10th January, 2020, composed with the kind
assistance of the PPSNI, is couched in suitably and appropriately qualified terms
that is, it states that ‘it is considered that’ the trial court could not of its own
motion, take silence in the Garda station into account in deciding the nature of the
adverse inference from silence in the trial. I would tend to agree with this
proposition, subject to the discussion above in terms of the fact that the existence
of these interviews will inevitably be a significant degree of focus upon Mr. Farrell’s
arrest and detention for a period of time which was consistent with him being
interviewed by police. Under normal circumstances these interviews would, at the
very least be referred to.”
56.       The provisions of the 1988 Order are both detailed and clear. Article 3(1)(A) refers to an
accused being questioned, under caution by a constable. It is clear that neither of the
respondents was so questioned. They were questioned in this jurisdiction, by the Gardaí,
Page 19 ⇓
following a caution that is significantly different in its terms to that required for the
purposes of Article 3 of the 1988 Order.
57.       The argument that is being advanced on behalf of the respondents is to the effect that,
while it is not open to the trial court to draw inferences under Article 3 of the 1988 Order,
it might nonetheless draw adverse inferences from the silence of the respondents during
questioning by Gardaí when looking at “all of the circumstances”. Mr. Devine’s opinion
does not appear to me to be based so much on an interpretation of Articles 3 and 4 of the
1988 Order, as on his experience as a practicing barrister in criminal trials in Northern
Ireland. This has led him to conclude that notwithstanding the clear and express
provisions of Articles 3 and 4 of the 1988 Order, and the further information provided by
the IJA in its letter of 10th January, 2020, a court might well draw adverse inferences
from the silence of the respondents at Garda questioning, simply because the courts are
used to drawing such inferences where accused persons are questioned, following the
appropriate caution, in accordance with the provisions of the 1988 Order.
58.       This opinion places very little faith in the courts of the issuing state to distinguish between
two very different sets of circumstances. It follows that if this Court were to accept Mr.
Devine’s opinion on the issue, it would be failing to accord to the authorities in Northern
Ireland, and in particular to the judiciary in that jurisdiction, the trust and confidence
which this Court is obliged to accord to those institutions pursuant to the express terms of
the Framework Decision, and s. 4A of the Act of 2003, which provides “It shall be
presumed that an issuing state will comply with the requirements of the Framework
Decision, unless the contrary is shown.” In my opinion, it is unthinkable that adverse
inferences can be drawn from the silence of the respondents in Garda custody at a trial in
Northern Ireland and I am obliged to have trust and confidence in the judiciary of
Northern Ireland that no such inferences will be drawn, as indicated in the letter received
from the IJA dated 10th January, 2020.
59.       It is further submitted on behalf of the respondents that this application should be refused
because they were not warned, while being questioned in this jurisdiction, that they would
not have an absolute right to silence at trial in Northern Ireland, and that adverse
inferences might be drawn (at trial in Northern Ireland) from their failure to answer
questions while in Garda custody. It is submitted that, in failing to so warn the
respondents, there has been a violation of the constitutional rights of the respondents
such that their surrender to Northern Ireland is prohibited . Reliance is placed upon the
decision of the Supreme Court in Larkin v. O’Dea [1995] 2 IR 485.
60.       The respondents further rely on the decision of the Court of Criminal Appeal in the matter
of The People (DPP) v. Coddington [2001] 5 JIC 3101, in which the court held that the
direction given by the trial judge was inconsistent with the duty of a trial judge to instruct
the jury that the onus to establish its case, including inferences, beyond reasonable
doubt, remains at all times with the prosecution. The court held:-
“While the trial judge may remind the jury of the fact that the accused had, as is
his right, not given evidence in the trial they must be expressly instructed not to
Page 20 ⇓
draw any inference from the exercise of that right. In this case, the learned trial
judge not only recalled that the accused had not given evidence but did so in the
context of the failure of the defence to provide evidence of an innocent explanation
for the presence of the money and without any direction that no inference was to
be drawn from his failure to give evidence.”
61.       It is submitted that there has been an egregious violation of the respondents’
constitutional rights in failing to inform them in this jurisdiction of the difference between
their rights to silence at trial in this jurisdiction and that which prevails in the requesting
state. It is also submitted that the fact that the respondents will be denied their
constitutional right to silence at trial in Northern Ireland is apparent from the judgment of
the Crown Courts sitting in Belfast in the matter of R v. McVeigh [2019] NICC 8. Those
proceedings involved the trial of Mr. Seán McVeigh, who was tried and found guilty of the
offences the subject matter of the EAWs.
62.       It is submitted by the respondents that the right to be presumed innocent includes the
right to silence at trial and is not confined to the boundaries of the State. Article 4 of the
1988 Order will result, therefore, in an egregious breach of the constitutional rights of the
respondents, such as that referred to by Murray C.J. in Minister for Justice and Equality v
Brennan [2007] 3 IR 732 and O’Donnell J. in Minister for Justice v. Balmer [2016] IESC 25,
referred to below. Moreover, there are substantial grounds for believing that there is
a real risk that the constitutional rights of the respondents will be violated at trial in
Northern Ireland, such as to meet the test for refusal of an application for surrender, as
identified in Minister for Justice, Equality & Law Reform v. Rettinger [2010] IESC 45, and
again more recently, in Minister for Justice and Equality v. Celmar [2019] IESCDET 45.
63.       I will first address the argument based on the warning given in custody. It is not in
dispute that the respondents received the appropriate caution from Gardaí prior to
commencement of interviews in Milford and Letterkenny, and that they exercised their
right to silence at interview. There is no obligation on Gardaí to provide separate cautions
of the kind to which they are entitled in the issuing state (upon their surrender), whether
the United Kingdom or any other state, or as may be appropriate in that state. In fact the
Gardaí were not even to know that the respondents would eventually be sought for trial in
Northern Ireland, although they may well have surmised as much. Moreover, this is an
entirely novel proposition, and if accepted would be quite unworkable. As counsel for the
applicant submitted, it would place the Gardaí in a situation where two parallel interviews
might be required, depending on the response of those being questioned to the different
cautions. The reliance placed by the respondents in Larkin v O’Dea is misplaced. In that
case the surrender of the respondents was refused because the court found that evidence
taken from the applicant in that case which was to be used at trial in Northern Ireland
was found to have been obtained, in this jurisdiction, in violation of his constitutional
rights. It follows therefore that he could not be sent to face a trial in which that evidence
would be used against him. While it is also the case that materials obtained by the Gardaí
following upon the arrest of the respondents has been sent to Northern Ireland and is
Page 21 ⇓
likely to be used against them at their trial, no argument has been advanced that this
evidence was improperly obtained. For these reasons, this argument must be rejected.
64.       I turn next to address the argument that, at the conclusion of their trials, inferences
adverse to the interests of the respondents may be drawn by the court if, having been
warned by the court in the terms required by Article 4 of the 1988 Order, the respondents
either do not give evidence or, that if they do so, they fail to answer any question without
good reason. It is contended on behalf of the respondents that such inferences amount to
an egregious breach of their constitutional rights in this jurisdiction, such that their
surrender should be refused.
65.       The right to silence under Irish law and its status as a constitutionally protected right is
well established and recognised in decisions relied upon by the respondents such as
Heaney v. Ireland [1994] 3 IR 593 and The People (Director of Public Prosecutions) v.
Finnerty [1999] 4 IR 364, in which case, Keane J. (as he then was) stated:-
“It follows that the right of suspects in custody to remain silent, recognised by the
common law, is also a constitutional right and the provisions of the Act of 1984,
must be construed accordingly. Absent any express statutory provisions entitling a
court or jury to draw inferences from such silence, the conclusion follows inevitably
that the right is left unaffected by the Act of 1984, save in cases coming within ss.
18 and 19, and must be upheld by the courts.”
66.       It is clear from this decision, and in Heaney, that the right to silence, while enjoying
constitutional protection, is not unqualified and may be abridged by statute. Indeed,
counsel for the respondents acknowledge that the right is not unqualified, but submit that
if it is to be abridged in any way, the person in detention should be warned of any power
that exists allowing adverse inferences to be drawn from a failure to answer questions or
give evidence at trial. In this case, it is submitted that the abridgment of the right to
silence (at trial) under the 1988 Order, coupled with the fact that the respondents were
not informed whilst in custody in this jurisdiction that they would not have a right to
silence at trial, amounts to an egregious breach of the constitutional rights of the
respondents.
67.       Throughout the European Union, Member States operate different procedures at trial. The
fact that procedures will vary from one Member State to another is no bar to surrender. If
it were otherwise, the entire system of surrender provided for in the Framework Decision,
as implemented in the Act of 2003 in this jurisdiction, would collapse. This was recognised
in Minister for Justice v. Brennan [2007] 3 IR 732. In those proceedings, which were
concerned with an argument that provisions in United Kingdom law imposing a mandatory
minimum sentence, which did not take into account the particular circumstances of the
respondent in those proceedings, violated his rights under the Constitution. At paras. 35-
40 of his judgment, Murray C.J. stated as follows:-
“[35] There is no doubt that the operation of the process for surrender as envisaged by
the Act of 2003, as amended, is subject to scrutiny as to whether in any particular
Page 22 ⇓
case it conforms with constitutional norms and in particular due process so that, for
example, the respondent in such an application has an opportunity to be duly heard
in the proceedings.
[36] However the argument of the respondent goes much further. He has contended
that the sentencing provisions of the issuing State, in this case the United Kingdom,
did not conform to the principles of Irish law, as constitutionally guaranteed,
governing the sentencing of persons to imprisonment on conviction before our
Courts for a criminal offence.
[37] The effect of such an argument is that an order for surrender under the Act of
2003, and indeed any order for extradition, ought to be refused if the manner in
which a trial in the requesting state including the manner in which a penal sanction
is imposed, does not conform to the exigencies of our Constitution as if such a trial
or sentence were to take place in this country. That can hardly have been the
intention of the Oireachtas when it adopted s. 37(1) of the Act of 2003 since it
would inevitably have the effect of ensuring that most requests for surrender or
extradition would have to be refused. And indeed if that were the intent of the
Framework Decision, which the Act of 2003 implements, and other countries
applied such a test from their own perspective, few, if any, would extradite to this
country.
[38] Indeed it may be said that generally extradition has always been subject to a
proviso that an order for extradition, as with any order, should not be made if it
would constitute a contravention of a provision of the Constitution. I am not aware
of any authority for the principle that the extradition or surrender of a person to a
foreign country would contravene the Constitution simply because their legal
system and system of trial differed from ours as envisaged by the Constitution.
[39] The manner, procedure and mechanisms according to which fundamental rights are
protected in different countries will vary according to national laws and
constitutional traditions. The checks and balances in national systems may vary
even though they may have the same objective, such as ensuring a fair trial. There
may be few, if any, legal systems which would wholly comply with the precise
exigencies of our Constitution with regard to these matters. Not all for example will
provide a right to trial by jury in exactly the same circumstances as our
Constitution does in respect of a trial for a non-minor offence. Rules of evidence
may differ. The fact that a person would be tried before a judge and jury in this
country for a particular offence could not, in my view, be a basis for refusing to
make an order for surrender solely on the grounds that in the requesting State he
or she would not be tried before a jury. The exceptions which we have to the jury
requirement, as in trials before the Special Criminal Court, acknowledges that a fair
trial can take place without a jury even though it is constitutionally guaranteed for
most trials in this country.
Page 23 ⇓
[40] That is not by any means to say that a Court, in considering an application for
surrender, has no jurisdiction to consider the circumstances where it is established
that surrender would lead to a denial of fundamental or human rights. There may
well be egregious circumstances, such as a clearly established and fundamental
defect in the system of justice of a requesting State where a refusal of an
application for surrender may be necessary to protect such rights…”
68.       Similarly, in Minister for Justice v. Balmer [2016] IESC 25, O’Donnell J., having referred
to a number of cases, including Minister for Justice v. Brennan, said, at para. 31:-
“[31] These cases are all examples of circumstances where objections under s. 37 have
failed. In each case, even assuming that the impugned foreign provision would
have been found to be incompatible with the Irish Constitution if enacted in Irish
law, the court in each case nevertheless found that the surrender of such a person
was not prevented by s. 37, or, indeed by the Constitution of its own force. The
undesirability and inappropriateness of scrutinising foreign laws by reference to
Irish constitutional standards is itself consistent with the approach taken in The
People (DPP) v. Robert Campbell [1983] 2 Ferwen 131 where, notwithstanding the
fact that the trial occurred in the jurisdiction of the courts, the court did not apply
Irish constitutional standards to the detention of suspects in Northern Ireland. Even
though these cases are individual instances, they form a broadly consistent line of
authority. They illustrate an approach which is, moreover, compatible with the
observations of Murray C.J. in Minister for Justice v. Brennan [2007] IESC 21,
[2007] 3 IR 732 and, indeed, both the observations made and the decision in
Nottinghamshire County Council v. KB [2011] IESC 48, [2013] 4 IR 662.”
69.       The applicant relies upon the decisions above and also the decision of the Supreme Court
in the case of Minister for Justice v. Buckley [2015] 3 IR 619. In that case, the surrender
of the respondent was sought to face conspiracy charges in the United Kingdom. The
respondent contended that certain provisions of the Police and Criminal Evidence Act,
1984 in the United Kingdom, which permitted the introduction into evidence of materials
that would prove that other persons had been convicted of certain offences, gave rise to a
risk of a violation of his rights guaranteed under Article 38 of the Constitution. In a
passage relied upon by the applicant in these proceedings, O’Donnell J. held as follows, at
para. 28:-
“[28] I would, therefore, summarise matters this way. First, the case advanced by the
respondent is hypothetical, in that its actual or likely impact on the respondent is
unclear, and certainly not capable of being characterised as a defect in the system
of justice of the requesting state. Second, even if, hypothetically, ss. 74 and 75 of
the Act of 1984 are not in accordance with the values found in Article 38, it is
immaterial, if the respondent cannot show that what would be at issue would be, or
is likely to be, an “egregious” departure amounting to a denial of fundamental or
human rights (per Murray C.J. in Brennan [2007] IESC 21, [2007] 3 IR 732 at para.
40, p. 744). There would have to be significantly more: a real and substantive
Page 24 ⇓
defect in the system of justice, where fundamental rights were likely to be placed at
risk, or actually denied. As Murray C.J. pointed out in Brennan, rules of evidence
“may differ” between states, and that alone does not at all lead to the necessary
conclusion that there is a breach of fundamental rights in the requesting state.
Finally, and again as held in Minister for Justice v. Brennan [2007] IESC 21 and
Nottinghamshire County Council v. KB [2011] IESC 48, [2013] 4 IR 662, the reach
of Article 38, save in exceptional circumstances, goes no further than the
boundaries of the State. There is nothing in Article 38 to suggest anything beyond
that. What is in question, then, is the lawfulness of the surrender of the respondent
in this jurisdiction. I would, therefore, answer the first question in the negative.”
70.       It follows that it is necessary to consider whether or not Articles 3 and 4 of the 1988
Order are likely to give rise to an egregious departure amounting to a denial of the
respondents’ fundamental or human rights. In considering this, it is useful at this
juncture to refer to the decision of the European Court of Human Rights (the “ECtHR”) in
the case of John Murray v. the United Kingdom (30 EHRR CD 57), a decision of that court
of 8th February, 1996. In those proceedings, the ECtHR was required to consider, inter
alia, whether or not Articles 3 and 4 of the 1988 Order violated Article 6 of the European
Convention on Human Rights (the “Convention”). At paras. 45 and 46 of its decision, the
court stated:-
“45. Although not specifically mentioned in Article 6 (art. 6) of the Convention, there
can be no doubt that the right to remain silent under police questioning and the
privilege against self-incrimination are generally recognised international standards
which lie at the heart of the notion of a fair procedure under Article 6 (art. 6) (see
the Funke judgment cited above, loc. cit.). By providing the accused with
protection against improper compulsion by the authorities these immunities
contribute to avoiding miscarriages of justice and to securing the aims of Article 6
(art. 6).
46. The Court does not consider that it is called upon to give an abstract analysis of the
scope of these immunities and, in particular, of what constitutes in this context
‘improper compulsion’. What is at stake in the present case is whether these
immunities are absolute in the sense that the exercise by an accused of the right to
silence cannot under any circumstances be used against him at trial or,
alternatively, whether informing him in advance that, under certain conditions, his
silence may be so used, is always to be regarded as ‘improper compulsion’.
47. On the one hand, it is self-evident that it is incompatible with the immunities under
consideration to base a conviction solely or mainly on the accused’s silence or on a
refusal to answer questions or to give evidence himself. On the other hand, the
Court deems it equally obvious that these immunities cannot and should not
prevent that the accused’s silence, in situations which clearly call for an explanation
from him, be taken into account in assessing the persuasiveness of the evidence
adduced by the prosecution.
Page 25 ⇓
Wherever the line between these two extremes is to be drawn, it follows from this
understanding of ‘the right to silence’ that the question whether the right is
absolute must be answered in the negative.”
71.       The court then went on to consider the specific proceedings and noted that while the
proceedings were without a jury, the trier of fact was an experienced judge. It further
noted that the drawing of inferences under the 1988 Order is subject to an important
series of safeguards designed to respect the rights of the defence and to limit the extent
to which reliance can be placed on inferences. It noted at para. 51:-
“In the first place, before inferences can be drawn under Articles 4 and 6 of the
Order appropriate warnings must have been given to the accused as to the legal
effects of maintaining silence. Moreover, as indicated by the judgment of the
House of Lords in R. v. Kevin Sean Murray the prosecutor must first establish a
prima facie case against the accused, i.e. a case consisting of direct evidence
which, if believed and combined with legitimate inferences based upon it, could lead
a properly directed jury to be satisfied beyond reasonable doubt that each of the
essential elements of the offence is proved (see paragraph 30 above).
The question in each particular case is whether the evidence adduced by the
prosecution is sufficiently strong to require an answer. The national court cannot
conclude that the accused is guilty merely because he chooses to remain silent. It
is only if the evidence against the accused ‘calls’ for an explanation which the
accused ought to be in a position to give that a failure to give any explanation ‘may
as a matter of common sense allow the drawing of an inference that there is no
explanation and that the accused is guilty’. Conversely if the case presented by the
prosecution had so little evidential value that it called for no answer, a failure to
provide one could not justify an inference of guilt (ibid.). In sum, it is only
common-sense inferences which the judge considers proper, in the light of the
evidence against the accused, that can be drawn under the Order.
In addition, the trial judge has a discretion whether, on the facts of the particular
case, an inference should be drawn. As indicated by the Court of Appeal in the
present case, if a judge accepted that an accused did not understand the warning
given or if he had doubts about it, ‘we are confident that he would not activate
Article 6 against him’… Furthermore, in Northern Ireland, where trial judges sit
without a jury, the judge must explain the reasons for the decision to draw
inferences and the weight attached to them. The exercise of discretion in this
regard is subject to review by the appellate courts.”
72.       The court then went to analyse the application of the 1988 Order to the specific
circumstances of the case, and having done so it did “not consider that the criminal
proceedings were unfair or that there had been an infringement of the presumption of
innocence”. Accordingly, there was no violation of Article 6 of the Convention.
Page 26 ⇓
73.       However, the ECtHR also concluded that there had been a violation of the applicant’s
rights under Article 6 of the Convention by reason of the fact that the applicant did not
have access to his solicitor from the outset of his interview by the police, which right was
of particular importance given Article 3 of the 1988 Order, and the implications for the
applicant if he chose to remain silent during questioning .On the basis of this finding, the
respondents argue that, although the respondents in these proceedings at all times had
access to a solicitor, that was in this jurisdiction, and they therefore did not receive the
appropriate advices as regards the 1988 Order. However, as I have already determined
above, there was no obligation on the Gardaí to provide the respondents with any caution
other than the caution that they are obliged to provide in this jurisdiction. Furthermore,
as I have also determined above, on the basis of the evidence before me, and in
particular the response to further information received from the IJA, and also having
regard to my obligation to have trust and confidence that the fundamental rights of the
respondents will be respected upon their surrender, this argument does not advance the
respondents’ case.
74.       Somewhat unusually, in this case, it is possible to see how the court in Northern Ireland
dealt with a person charged with the same offences (arising out of the same alleged acts)
with which it is intended to charge the respondents, and how the court applied Articles 3
and 4 of the 1988 Order in those proceedings. In his written decision in R v. McVeigh
[2019] NICC 8, the judge, HH Fowler QC, reminded himself of the principles to be applied
in deciding whether or not the prosecution proved its case, particularly having regard to
the fact that he was acting as a judge alone, without a jury. He reminded himself that the
burden of proof lies on the crown; that the prosecution must prove the defendant guilty
beyond a reasonable doubt; that the court must decide the case only on the evidence
established before it. He noted that the prosecution case depended on circumstantial
evidence, and the principles applicable in considering circumstantial evidence. He
reminded himself that he must consider all of the evidence and guard against distorting
the facts or the significance of the facts to fit a certain proposition and that he must be
satisfied that no explanation other than guilt is reasonably compatible with the
circumstances.
75.       He then went on to conduct a detailed analysis of all of the facts and the forensic
evidence. At paras. 109 and 110 of his judgment, under the heading “Defendant’s failure
to give evidence”, he stated:-
“[109] At the conclusion of the Crown case the court addressed counsel for the
Defendant in the usual terms stating that if the Defendant chose not to give
evidence the court may draw such inferences as appear proper from their failure to
do so. I enquired if the Defendant intended to give evidence and if not had he been
advised about the inferences which might be drawn if he chose not to do so. Mr
Pownall QC stated that his client did not intend to give evidence and stated that his
client had been advised about the inferences which might be drawn from his failure
to do so.
Page 27 ⇓
[110] The Defendant is entitled not to give evidence, to remain silent and to make the
prosecution prove his guilt beyond reasonable doubt. Two matters arise for him not
giving evidence. The first is that the case is tried according to the evidence. The
Defendant has given no evidence at his trial to undermine, contradict or explain the
evidence given by the prosecution witnesses. Secondly, the law is that the court
may draw such inferences as appear proper from the failure on the part of the
Defendant to give evidence. The court must decide whether it is proper to hold the
Defendant's failure to give evidence against him in deciding whether he is guilty.
The court may only draw an adverse inference against the Defendant for failing to
go into the witness box to give an explanation for, or an answer to, the case
against him if the court considers that it is a fair and proper conclusion for the court
to reach. The court must first be satisfied that the prosecution case is sufficiently
strong to clearly call for an answer by the Defendant. Secondly it must be satisfied
that the only sensible explanation for his silence is that he has no answer or none
that would bear examination. I remind myself that the courts should not find the
Defendant guilty only or mainly because he did not give evidence. But the court
may take into account as some additional support for the prosecution case the fact
that the Defendant has not given evidence when deciding whether the Defendant's
case is true or not.”
The judge then proceeded to give his conclusions by reference to the evidence and drew
inferences against the defendant on the basis of the evidence, and the fact that the
defendant had chosen to say nothing in relation to the case against him which the judge
held “cries out for an explanation”.
76.       In addition to relying upon the affidavit evidence of Mr. Devine, the respondents rely upon
the case of R v. McVeigh in support of their argument that, if the respondents exercise
their right to silence at trial in Northern Ireland, this is likely to result in adverse
inferences being drawn by the trial judge, such as occurred in the case of Mr. McVeigh.
While it is acknowledged that in this jurisdiction there is legislation that permits the
drawing of adverse inferences in the context of the failure of an accused person to answer
certain questions under questioning from Gardaí at the investigation stage, there is no
legislation that permits the drawing of inferences from the failure of an accused to give
evidence at his own trial. That, it is submitted, goes beyond the bounds of what is
permissible under the Constitution, and taken together with the fact that the respondents
received no warning, when being questioned by the Gardaí, that such inferences are likely
to be drawn if the respondents are placed on trial in Northern Ireland, would constitute an
egregious violation of the respondents’ constitutional rights.
77.       In considering whether or not Articles 3 and 4 of the 1988 Order will give rise to an
egregious violation of the constitutional rights of the respondents, it is useful to refer to
the observations of the Supreme Court in the case of Rock v. Ireland [1997] 3 IR 484 in
its consideration of the constitutionality of the legislation impugned in those proceedings.
At page 501 of the judgement, Hamilton C.J. stated:-
Page 28 ⇓
“It is the opinion of this Court that, in enacting ss. 18 and 19 of the Act of 1984,
the legislature was seeking to balance the individual's right to avoid self-
incrimination with the right and duty of the State to defend and protect the life,
person and property of all its citizens. In this situation, the function of the Court is
not to decide whether a perfect balance has been achieved, but merely to decide
whether, in restricting individual constitutional rights, the legislature have acted
within the range of what is permissible. In this instance, this Court finds they have
done so, and must accordingly uphold the constitutional validity of the impugned
statutory provisions. While it is true that ss. 18 and 19 could lead to an accused
being convicted of a serious offence in circumstances where he or she might
otherwise have been acquitted, there are two important, limiting factors at work.
Firstly, an inference cannot form the basis for a conviction in the absence of other
evidence. As the learned trial judge pointed out:—
“...there is no doubt a strengthening of the State's case but in no sense is it
final and in neither event is the accused required to exculpate himself.”
Secondly, only such inferences “as appear proper” can be drawn: that is to say, an
inference adverse to the accused can only be drawn where the court deems it
proper to do so. If it does not, then neither judge nor jury will be permitted to draw
such inference.”
78.       On the basis of these safeguards, the Supreme Court in Rock considered the impugned
provisions to be constitutional. Substantially the same safeguards are to be found in
Article 4 of the 1988 Order. Although it is not expressly stated in Article 4 that, before
Article 4 is triggered the prosecution must have established that the defendant has a case
to answer, on the respondents’ own case this is a requirement. These safeguards were
relied upon by the ECtHR in its conclusion that Article 4 of the 1988 Order did not violate
Article 6 of the Convention. If those safeguards were sufficient for the Supreme Court to
conclude that the impugned provisions in Rock did not give rise to a violation of the
plaintiff’s constitutional rights in that case, then it is difficult to see how Article 4 of the
1988 Order can be said to give rise to an egregious violation of the respondents’
constitutional rights.
79.       Drawing all of the above together, the following is established:-
1) The right to silence in this jurisdiction is recognised under the Constitution and is
accorded protection accordingly. It is not, however, unqualified, and may be
abridged in a manner that is proportionate to the objectives.
2) While there are certain statutory provisions in this jurisdiction that qualify or
abridge the right to silence, there is no equivalent to Articles 3and 4 of the 1988
Order. To that extent, it is possible that the respondents, if they exercise their
right to silence at trial in Northern Ireland, may suffer a prejudice that they would
not suffer if they were put on trial in this jurisdiction.
Page 29 ⇓
3) That however, does not necessarily constitute a violation of their constitutional
rights. The protection afforded by Article 38 of the Constitution does not extend
beyond the boundaries of the State, unless the matters complained of would give
rise to an egregious violation of the constitutional right asserted.
4) Articles 3 and 4 of the 1988 Order do not violate Article 6 of the European
Convention on Human Rights. While the rights protected by the Convention and
the Constitution are not identical, in this fundamental respect they are unlikely to
be very much different.
5) There is no evidence that the manner in which Articles 3 and 4 are invoked in
Northern Ireland is such that would give rise to any cause for concern that the
constitutional rights of the respondents are likely to be violated egregiously, or in
contravention of the principles enunciated in Rock. On the contrary, the application
of Article 4 of the 1988 Order in R v. McVeigh demonstrates the application of the
safeguards necessary to avoid such an outcome.
6) There is a statutory presumption that an issuing state will comply with the
requirements of the Framework Decision which, at Article 1.3, requires Member
States to respect the fundamental rights and principles enshrined in Article 6 of the
Treaty on European Union. Moreover, there is a duty on this Court, pursuant to the
terms of the Framework Decision to have trust and confidence in the issuing
Member State that the respondents’ fundamental rights will be respected.
7) It follows from all of this that the arguments of the respondents that their surrender
to Northern Ireland will give rise to an egregious violation of their constitutional
rights must be rejected. Since all other objections to their surrender have also been
rejected, the Court must order the surrender of the respondents pursuant to s. 16
of the Act of 2003. For the avoidance of any doubt, I should add that I have been
fully satisfied that there has been full compliance with the Act of 2003 as regards
the form and content of the EAWs.


Result:     Order made for the surrender of the respondents pursuant to s. 16 of the European Arrest Warrant Act 2003.




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