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Judgment Title: Clarke -v- Governor of Portlaise Prison & Minister for Justice Equality & Law Reform -v Clarke
Composition of Court: Denham J., Geoghegan J., Kearns J.
Judgment by: Denham J.
Status of Judgment: Approved
- 2 -
THE SUPREME COURT
[S.C. No: 350 of 2005]Denham J.
[S.C. No: 369 of 2005]
In the matter of Article 40.4.2 of the Constitution of Ireland, 1937
Governor of Portlaoise Prison
In the matter of the European Arrest Warrant Act, 2003
Minister for Justice Equality and Law Reform
Judgment delivered on the 23rd day of May 2006 by Denham J.
1. Thomas Clarke, hereinafter referred to as ‘the applicant’, has brought two appeals to this Court, which appeals were heard together. This single judgment relates to both appeals.
2. Habeas Corpus
The first appeal brought by the applicant, which relates to an application for habeas corpus, is from the judgment and order of the High Court (Gilligan J.), of the 31st August, 2005, which found that the detention of the applicant was lawful.
2.1 The learned High Court Judge held that the order for production was made in the interests of justice and that at the time the Minister was not acting in any quasi judicial capacity, and that it could not in any way be considered to be a committal order. Regarding the applicant’s contention that the arrest was a fiction and a colourable device and that there was no physical taking into custody, the High Court held that the arrest had the characteristics of a formal arrest and that there was no substance in the applicant’s contention that there was a fundamental flaw in the procedures relating to the production order and the arrest.
3. The applicant has appealed against the order of the High Court. The grounds for the appeal are that the High Court erred:
§ in law in not granting a release under Article 40.4.2 of the Constitution of Ireland, 1937 to the applicant;
§ in law in finding that the Ministerial Order directing the applicant’s production before the High Court was valid and fair and sound procedure;
§ in law in finding that the applicant’s purported arrest in the precinct of the High Court was lawful and of fair and sound procedure.
4. European Arrest Warrant
The second appeal before the Court is from the order and judgment of the High Court (Hanna J.) of the 15th September, 2005. It is an appeal from an order made pursuant to s. 16 (1) of the European Arrest Warrant Act, 2003 for the surrender of the applicant to the United Kingdom. The surrender sought is to complete a sentence of imprisonment imposed in 1994.
4.1 In the High Court, the applicant raised six grounds of opposition. However, Hanna J. ordered that the applicant be surrendered to the person duly authorised to receive him on behalf of the United Kingdom, pursuant to s.16 (c) of the European Arrest Warrant Act, 2003 and the applicant was committed to prison pending the carrying out of the order.
4.2 In the High Court it was accepted, regarding the sixth ground raised, which related to the Ministerial order to produce the applicant before the Court, that it was res judicata because of the decision of Gilligan J. on the 31st August, 2005, in the habeas corpus application, the subject of the first appeal in this judgment.
5. The applicant filed an appeal to this Court. The grounds of appeal submitted that the learned High Court judge erred:
(i) in ruling that the applicant had not been subjected to inexcusable delay, oppression and to inhumane and degrading treatment by the authorities of the State in delaying consideration of his early release for the purpose of his extradition to the United Kingdom;
(iii) in failing to rule that the applicant was not in the lawful custody of the Governor of Frankland Prison (in UK) at the time of his transfer to hospital in 1995 and/or failing to require proof that the applicant was in lawful custody at that time;
(iv) in ruling that the Dutch State had furnished its consent to the proposed extradition/surrender of the applicant requested by the United Kingdom under the provisions of the European Arrest Warrant Act, 2003.
On these matters coming on for hearing before this Court, counsel for the applicant addressed issues arising on the consent from the Netherlands, allegations of delay, oppression, and inhuman and degrading treatment of the applicant by the authorities of the State in delaying his release, the escape issue, the production order, the arrest, whether the arrest was, if necessary, cured by the order of committal of MacMenamin J., the fact that these last three issues were not raised before MacMenamin J., Article 26 and deduction of time in custody from sentence, and the submitted abandonment by the United Kingdom of the application at an earlier date.
Before I consider the issues arising on these appeals, for the record I refer to an application for adjournment sought by counsel for the applicant on the morning of the hearing, which was refused. The application was based on two broad factors, (a) that counsel had recently come into the case and he sought further time to prepare, and (b) a production order was sought to produce the applicant before the Court.
This is an appeal from High Court orders of the 31st August, 2005, and the 15th September, 2005. There is a duty on solicitors, counsel and the Courts to deal with these matters expeditiously. The cases were listed in the priority list of the Supreme Court. On Friday 24th February, 2006, the date for the appeal was set and the solicitors were notified that afternoon. It was ordered that the applicant’s submissions be filed by 1st March, 2006, but they were not filed as of the hearing date on the 6th March, 2006. The State was to file submissions by the 2nd March, 2006, and did so. The Books of Authority were not joint books, the State’s book was available on the 6th March, 2006. Counsel for the applicant said that he had come into the case at the weekend. In addition, there had been some matter of the applicant contemplating a change in solicitor.
In all the circumstances, which included the advance notice of the hearing date, the advance requirements as to submissions, the expediency required in an application under the European Arrest Warrant legislation, and the obvious clear comprehension of the case by senior counsel, the Court refused this application.
An adjournment was also sought to enable a production order be made for the applicant. This is a case where the issues on appeal are matters of law, the date had been set well in advance and was known, it is an application requiring expediency, and no application was made at any earlier time for a production order. In all the circumstances the Court refused the adjournment sought on this basis also and the case proceeded.
8. Decision on Habeas Corpus
8.1 (i) In the first appeal, the applicant has raised the issue of the production order. A production order is an administrative order made by the Minister in relation to a person in prison to secure their production at a specified time and place, where the interests of justice so require.
8.1 (ii) Legal authority is found in s.11 of the Prisons Act, 1898, which provides:
“(1) [A Minister], on proof to his satisfaction that the presence of any prisoner at any place is required in the interest of justice, or for the purpose of any public inquiry, may by writing under his hand order that the prisoner be taken to that place.
(1) A prisoner taken from a prison in pursuance of an order made under this section, . . . , shall, whilst outside that prison, be kept in such custody as the [Minister] may by general rules prescribe, and whilst in that custody shall be deemed to be in legal custody.
(2) For the purposes of this section, the expression “prisoner” shall include any person lawfully confined under any sentence or under commitment for trial or otherwise, and the expression “prison” shall include any place in which any such person is lawfully confined”.
8.1. (iii) Relevant facts were deposed to by Mr. Kevin O’Sullivan, Deputy Director of Operations, Irish Prison Service, in his affidavit sworn on the 30th day of August, 2005 on behalf of the Minister. He deposed, in paragraph 10:
8.1 (iv) The learned High Court judge gave an ex tempore judgment on 31st August, 2005, stating, inter alia:
It is the next two steps in the procedure that Mr. Giblin S.C. on the application’s behalf urges on the Court were unlawful. The two steps involved are that the Minister made a production order and the applicant was produced in the Four Courts and the second procedure is the arrest of the applicant.
The purport of the production direction is perfectly clear and is an administrative decision, one among some 5,000 such orders that are made in a year. It is signed by Mr. O’Sullivan, a person authorised in that behalf by the Minister for Justice, Equality and Law Reform.
The making of the order is governed by Section 11(1) and (2) of the Prison Act 1898 . . .
The crucial wording, in my view, is “in the interest of justice”. I am satisfied on the basis of the evidence before me that Mr. O’Sullivan of the operations directorate of the prison service made all the necessary inquiries and acting in the interest of justice made the order. I do not consider that in doing so he was acting in any quasi judicial capacity against the background when the applicant was in lawful custody in Portlaoise Prison. It is not contested on the applicant’s behalf that the Garda authorities were entitled to arrest the applicant while in lawful custody in prison.
I am further satisfied that in the context of this application the ministerial order cannot in any way be considered to be a committal order and the order did not affect the custody of the applicant. He was at all material times quite simply a prisoner in custody whom, in my view, in the interest of justice was moved from Portlaoise Prison to the Four Courts for the purpose of being arrest[ed] pursuant to a valid European Arrest Warrant.
The production order, in my view, is quite clear on its face. Further, in my view, there is no valid basis to contest the ministerial production order of 22 August 2005.”
8.1 (v) I would affirm the decision of the learned High Court judge that the Ministerial order cannot be considered to be a committal order. The custody of the applicant was based on the original court order of the court of trial and sentence. The production order was not a committal or detention order, the production order merely provided for his production at a certain place, in the interests of justice. There were facts, as set out above, in this case, upon which such a production order could be made. I am satisfied that the learned High Court judge was entitled to make the decision which he did in this matter, and I would affirm that aspect of the judgment.
The purpose of the production order was to enable the State to fulfil its obligations under the European Arrest Warrant Act, 2003, as amended. The Minister, on being informed that a prisoner is the subject of a European Arrest Warrant, has the power by way of a production order to bring a prisoner to court for the purpose of the European Arrest Warrant Act, 2003, as amended. It is an entirely appropriate use of the production order system. Consequently, the applicant is not entitled to be released upon this ground.
8.1 (vi) The applicant also raised the issue of the arrest of the applicant in the Four Courts. The arrest did not take place in the High Court itself, but rather in the precincts of the Court, in the Four Courts building. The facts were set out carefully by the learned High Court judge, as recited later in this judgment. I am satisfied that the learned High Court judge was entitled to form the view on those facts that the arrest was lawful. I would dismiss this aspect of the appeal.
8.2 The applicant also raised the issue that his arrest in the Four Courts building was an arrest upon an arrest.
8.2 (i) The applicant was brought to the Four Courts by the prison officers pursuant to the production order. He was then in lawful custody, and was arrested pursuant to the European Arrest Warrant procedure. It is well settled law that a person in custody may be arrested: The People (D.P.P. v. O’Shea  1 I.R. 557. In that case Blayney J., giving the judgment of the court, stated at p. 56:
Thus it is well settled jurisprudence that a person who is already in the custody may be arrested by another. An arrest may occur of a free person, or there may be an arrest of a person already in another’s custody.
On behalf of the applicant it was submitted that it was a fiction, that he was in the custody of the prison officers at all times, that he should have been removed from the physical custody of the prison officers into the physical custody of the member of An Garda Siochána. It was submitted that there should have been a passing of physical control from the prison officers to the Garda Sergeant and that the purported arrest was an elaborate fiction.
8.2 (ii) The judgment of the learned High Court judge, on this aspect of the case, stated:
6. I say that on 23rd day of August 2005 at the Four Courts, Dublin 7, in the County of the City of Dublin, I met a man whom I believed to be the [applicant]. I introduced myself to this man by telling him my name, rank and station and producing and showing to him my official Garda Identification Card. I asked him 'are you Thomas Clarke?', he replied 'yes'. I asked him if he was also known as Thomas Michael Clarke and he replied 'No'. I asked him if his date of birth was 25th January 1969 and he replied 'Yes'. I asked him if he had previously used the dates of birth 25th April 1969 and 16th January 1964 and he replied 'No'. I showed him a photograph attached to the warrant and asked him if it was a photograph of him and he replied 'No'.
9. I informed the [applicant] that under section 13 of the European Arrest Warrant Act, 2003 he was entitled to consent to his immediate surrender to the issuing staff, he replied 'No'. I informed him that under Section 13 of the European Arrest Warrant Act 2003 he was entitled to obtain or be provided with professional legal advice and representation, he said 'Yes'. I told him that under Section 13 of the European Arrest Warrant Act 2003 he was, where appropriate, entitled to obtain or be provided with the services of an interpreter, he replied 'No'.
I read over the warrant to the [applicant] up to approximately a third of the fifth page of the warrant where it recites the nature and legal classification of the offence(s).
He was brought immediately before this court and an order was made by this court (McMenamin J) pursuant to the European Arrest Warrant Act, 2003.
In my view, the arrest as carried out was fully explained to the applicant and he was brought instantly before the court on the European Arrest Warrant and it is not plausible that he was in any doubt as to what his position was.
In my view, the arrest as carried out had the characteristics of a formal arrest.
In my view, the arrest as carried out was lawful.
In my view, there is no substance in the applicant’s contention of a fundamental flaw in the procedures relating to the production order or the applicant’s arrest on the European Arrest Warrant. I take the view that the order of this Court McMemamin J of 23 August 2005 lodging Thomas Clarke, the applicant, to Cloverhill Prison is a valid order and accordingly I hold that the applicant’s detention in custody is lawful.”
8.2 (iv) In reviewing these matters the High Court (Gilligan J.) stated:
“Nothing, in my view, could be clearer than that the applicant had the full import of the European Arrest Warrant explained to him and he knew perfectly well what was taking place and was represented by solicitor and counsel.
He was brought immediately before this Court and an order was made by this Court MacMenamin J. pursuant to the European Arrest Warrant Act, 2003.
In my view, the arrest as carried out was fully explained to the applicant and he was brought instantly before the court under the European Arrest Warrant and it is not plausible that he was in any doubt as to what his position was.
In my view, the arrest as carried out had the characteristics of a formal arrest. In my view, the arrest as carried out was lawful.”
8.2 (v) On the facts of this case, which include the applicant’s previous history, his custody in prison, his transfer to the Four Courts pursuant to a production order, his remaining underlying custody pursuant to a sentencing court, the circumstances of his arrest in the Four Courts as set out in the affidavit of Sergeant Lenihan and recited in the judgment of the High Court (which is in paragraph 2.2 above), I am satisfied that the High Court had evidence upon which it could and was entitled in law, to determine that the arrest was lawful. It is quite clear that the procedure was fully explained to the applicant and that then the applicant was brought into Court pursuant to the European Arrest Warrant Act, 2003, as amended. Indeed far from being any colourable device this was a careful procedure implemented pursuant to the State's obligations, under the European Arrest Warrant Act, 2003 to the applicant and to the requesting State.
I would affirm the decision of the learned High Court judge and I would dismiss this ground of appeal.
8.3 Consent of the Netherlands.
On behalf of the applicant it was submitted that the High Court erred in ruling that the Netherlands had furnished its consent to the proposed extradition of the applicant requested by the United Kingdom, under the provisions of the European Arrest Warrant Act, 2003, as amended.
This issue is a matter which is appropriate for consideration in a s. 16 procedure, unlike some of the other issues raised. The relevant facts are as follows. The applicant escaped from lawful custody in the United Kingdom in July, 1995. He came to Ireland. He was convicted and sentenced, on an Irish charge, to five years imprisonment. Once again he escaped from lawful custody; he escaped from Portlaoise Prison on the 25th April, 1996. He went to the Netherlands, where he was arrested in June, 1996. His extradition was sought by both Ireland and the United Kingdom.
The authorities in the Netherlands chose to extradite the applicant to Ireland in October, 1996. Ireland gave an assurance to the Netherlands, pursuant to article 15 of the European Convention on Extradition 1957, that the applicant would not be surrendered to a third country for offences committed prior to the surrender to Ireland without the consent of the Netherlands.
Concern had been expressed initially in relation to the request from the United Kingdom, as the escape offences were regarded as not corresponding to the law in the Netherlands where escape from lawful custody is not an offence under their law unless violence is used. The authorities in the United Kingdom agreed not to seek the applicant for an offence relating to his escape from lawful custody and requested his extradition only to serve the balance of the sentences for the three robbery offences of which he had already been convicted in the United Kingdom.
It is appropriate to address the issue of consent of the Netherlands to extradite the applicant to the United Kingdom because of the Netherlands' refusal to extradite the applicant to the United Kingdom in 1996. This fact is relevant as the Netherlands then consented to the onward extradition of the applicant by a letter dated October, 2003. This was done in the context of article 15 of the European Convention on Extradition. Thus, factually, the consent was shown to exist.
However, the question raised was whether a consent given in the context of article 15 of the European Convention on Extradition at a time when the Extradition Act, 1965 applied could relate to the current situation under the European Arrest Warrant system.
The terms of the letter giving the consent of the Netherlands were:
The request for the purpose of the execution of the sentence of 20 May 1994 has been granted in compliance with the provisions of Article 15 of the European Convention on Extradition.
The Ministry of foreign Affairs avails itself of this opportunity to renew to the Embassy the assurances of its highest consideration."
I am satisfied that the fact that the consent was sought and obtained in relation to an earlier application for extradition, in 2003, by the United Kingdom, which application was withdrawn, does not per se affect the status of the consent.
The process has changed, the Extradition Act, 1965 no longer applies. Extradition is governed now by the European Arrest Warrant Act, 2003, as amended. However, Ireland retains duties under article 15 of the European Convention on Extradition 1957. Thus while the system is different, the principle of consent remains. While it would be best practice to obtain a consent specific to a later specific European Arrest Warrant, a previous consent may not be invalid. Critical to the analysis is the clarity of the consent to the relevant offences. In this case the consent is specifically addressed to the offences in issue. There can be no doubt as to the offences which are the subject of the consent.
Consequently, while best practice was not followed, I am satisfied on the facts of this case that the consent may be considered to apply. While it is true that the consent was given prior to the European Arrest Warrant Act, 2003 and the procedure which it introduced, the new process arises under a European Directive and has been implemented in both the Netherlands and Ireland. The changed process, in the circumstances, is not a factor such as to invalidate the consent. Fundamentally the same issue arises, as to whether The Netherlands consents.
There are a number of other relevant factors.
(a) The consent was given in 2003. It was an unqualified consent in relation to the extradition of the applicant for the three offences of robbery. There was no indication that this consent was for a limited time. The Netherlands knew that the applicant was serving time in prison in Ireland and that any re-extradition to the United Kingdom would be in the future.
(b) It was a cautious action by the State to obtain consent earlier rather than later in the event of the applicant's early release from prison. This meant that the consent was given when extradition was governed by the Extradition Act, 1965, before the introduction of the European Arrest Warrant procedure.
(c) It is clear that whatever the extradition procedure agreed between the States of the European Union and subsequently transposed into domestic legislation, the issue is simple, it is not a legal technical matter. The issue is whether the Netherlands consented to the onward extradition of the applicant to the United Kingdom. The consent given was not framed in the context of the Extradition Act, 1965.
(d) The facts have not changed. On the face of the papers the Netherlands gave an open ended consent to the onward extradition of the applicant to the United Kingdom.
(e) This was a considered decision of the Netherlands. The consent was given after the United Kingdom indicated that it would not proceed with offences of unlawful escape, and in those circumstances, in relation only to the relevant offences, the three robbery charges, the consent was given.
(f) The consent was a reasoned decision based on law - the lack of correspondence of the offence of unlawful escape between the Netherlands and the United Kingdom.
(g) The purpose of the consent was to indicate clearly that the Netherlands was not objecting to the re-extradition of the applicant to the United Kingdom.
(h) There are relevant presumptions in law. Under s 4A of the European Arrest Warrant Act, 2003, as amended, it is presumed that the issuing State will comply with the Framework Directive, unless the contrary is shown. Under s. 22 (3) of the European Arrest Warrant Act, 2003, as amended, there is a presumption that the applicant will not be charged with other offences, (such as, in this instance, escaping from lawful custody). Consequently, there is an express consent from the Netherlands that the applicant be extradited on to the United Kingdom for the robbery offences only, and a presumption in law that he will not be prosecuted for offences other than those on the warrant. The European Arrest Warrant states clearly that it relates to three convictions for robbery. The enforceable judgments were those of the Crown Court of Leeds, on the 20th May, 1994. The applicant pleaded guilty to the three recited offences of robbery and was sentenced to a total of 9 years. I understand four and a half to five years remains to be served.
(i) As the United Kingdom have sought the extradition of the applicant solely regarding the robbery offences the issue of consent is not crucial.
In all the circumstances, in the absence of any evidence to the contrary, given the presumptions which exist under the European Arrest Warrant Act, 2003, as amended, and the express consent of the Netherlands that the applicant be
re-extradited by Ireland to the United Kingdom on the robbery convictions, I am satisfied that there was sufficient evidence and law before the High Court upon which the learned High Court judge could determine that the Netherlands were not objecting to the onward extradition of the applicant to the United Kingdom. Consequently I would dismiss this ground of appeal.
8.4 Other grounds
Other grounds of appeal were also raised by the applicant. Once again the applicant raised grounds as to the production order and his arrest. However, these issues have already been determined in the habeas corpus application, as set out above.
On behalf of the applicant it was submitted that there was excessive and inordinate delay in processing the applicant's review by the Sentencing Review Group. Counsel for the respondent submitted that the judicial review proceedings which had been taken earlier by the applicant against the Sentencing Review Group were irrelevant to the issues before the High Court on the European Arrest Warrant. I am satisfied that this is correct, in this case. Even if there was delay by the Sentencing Review Board, which was not admitted, it would not affect this case. In a situation where a person is serving out a sentence in Ireland prior to extradition to a third State, it is entirely reasonable to await a time near the termination of the sentence to process the extradition procedures. Further, issues as to review or remission of a sentence would not, in general, affect the issue of an extradition order. Nothing in this case removes it from the general situation.
Counsel for the applicant referred to discussions held with Irish authorities regarding the applicant's early release from custody in Ireland on his giving consent to his extradition to the United Kingdom, and the ultimate decision of the Parole Board that he would not be given early release. Counsel pointed out that the applicant has been in custody since 1996 and that the authorities in the United Kingdom have informed them that he has four and a half to five years yet to serve on the sentences in the United Kingdom. It is in these circumstances that the issue of cruelty was raised.
The benefit to him of an early release and return to the United Kingdom is obvious. However, the issue of parole, early release, is an executive function. He did not receive it. No grounds have been raised which would warrant an intervention by the Courts. If he had been awarded early release it would have been a concession by the State - but it was not granted. There is no question of abuse in the circumstances. The applicant was simply required to serve out his sentence in Ireland.
Fundamentally delay has been brought about by the applicant's own actions. He escaped from lawful custody in the United Kingdom, and later he escaped from lawful custody in Ireland. It is these actions of the applicant which delayed the serving of his sentences.
Counsel for the applicant also made submissions as to inhuman treatment. I am satisfied that this issue does not arise. The applicant is being sought in these extradition proceedings to be returned to the United Kingdom to serve the balance of a sentence for a crime to which he pleaded guilty. There is no question of inhuman treatment.
The issue of an abandonment by the United Kingdom of an earlier request is not a relevant factor in the circumstances. The applicant was serving a sentence in Ireland at that time. He continued serving his sentence and this warrant was then served. No grounds for appeal arise in these circumstances.
Counsel for the applicant also made submissions putting forward the view that the applicant was not in the lawful custody of the Governor of Frankland Prison at the time of his transfer to hospital in 1995. However, this is simply not relevant. It is not proposed to extradite the applicant for any offence relating to his escape from custody. The European Arrest Warrant relates only to the three charges of robbery.
Reference was made to matters being cured by an appearance in the High Court. However, I am satisfied that no issue arose as to a matter in fact being cured by an appearance before MacMenamin J. Reviewing all the grounds raised on behalf of the applicant, I am satisfied that no case has been made out on these appeals. The many issues raised in these two appeals were addressed eloquently by counsel on behalf of the applicant. However, there are no grounds upon which these appeals could succeed.
For the reasons given, I would dismiss the appeal of the applicant from the order of the High Court refusing his release pursuant to an application for habeas corpus, and I would also dismiss the applicant's appeal against the order of the High Court pursuant to s.16 of the European Arrest Warrant Act, 2003, as amended.
However, the applicant has been in custody in relation to the European Arrest Warrant since 27th August, 2005 and thus this time may be considered relevant under article 26 of the Framework Decision, European Council Framework Decision of 13th June 2002 on the European Arrest Warrant and the surrender procedures between Member States, which relates to the deduction of the period of detention served in the executing Member State.