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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Ó Fallúin -v- Governor of Cloverhill Prison [2007] IESC 20 (03 May 2007) URL: http://www.bailii.org/ie/cases/IESC/2007/S20.html Cite as: [2007] IESC 20, [2007] 3 IR 414, [2007] 2 ILRM 321 |
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Judgment Title: Ó Fallúin -v- Governor of Cloverhill Prison Composition of Court: Murray C.J., Denham J., Fennelly J. Judgment by: Fennelly J. Status of Judgment: Approved
Outcome: Allow And Set Aside Notes on Memo: Reasons given for decision on 18/01/07 | ||||||||||||||
9 THE SUPREME COURT No. 07/06Murray C.J. Denham J. Fennelly J. IN THE MATTER OF ![]() ![]() AND OF THE HABEAS CORPUS ACT, 1782 BETWEEN MICHÉAL Ó FALLÚIN Applicant/Appellant and RespondentTHE GOVERNOR OF CLOVERHILL PRISON and Notice PartyTHE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM JUDGMENT of MR JUSTICE FENNELLY delivered on the 3rd day of May, 2007. ![]() ![]() 2. There were two appeals before the Court. The first was an appeal against the order directing the Appellant’s surrender. The second was and still is an appeal against the order of the High Court (Peart J) of 29th November 2005 declining to order his release pursuant to ![]() ![]() ![]() ![]() 3. On 21st June 2004, District Judge Workman at Bow Street Magistrates’ Court, London, in the United Kingdom, issued a European Arrest Warrant seeking the arrest and surrender of the Appellant. The warrant alleges that the Appellant had conspired with others to defraud the United Kingdom Passport Agency by the provision of false passport applications, contrary to common law. The Warrant requested that the Appellant be arrested and surrendered for the purpose of a criminal prosecution. It was communicated to the Irish authorities. The Appellant was duly arrested and brought before the High Court in accordance with the provisions of the Act. 4. The Appellant filed a Notice of Objection and raised a number of legal points resisting his surrender. None of these are now relevant, since the Appellant has withdrawn his appeal against the order for his surrender. The proceedings in the High Court were conducted before Finlay Geoghegan J, who delivered several judgments. By her order dated 20th October 2005, the learned judge ordered that the Appellant be surrendered to such person as would be duly authorised by the United Kingdom to receive him and that he be committed to prison pending the carrying out of the order. The accompanying committal warrant ordered that he be lodged in Cloverhill Prison “there to be detained by the Governor thereof for a period of not less than fifteen days from the date hereof (except in the meantime the [Appellant] has consented to his being delivered up in that period) until his delivery as aforesaid and for any further period as may be necessary under law.” 5. At the conclusion of the hearing in the High Court, that Court had informed the Appellant, as is required by section 16(4) of the Act of 2003, and as is recited in its order, of his right to make a complaint under ![]() ![]() 6. The Appellant made no application pursuant to ![]() ![]() 7. On 23rd November 2005 the Appellant obtained a conditional order pursuant to ![]() ![]() 8. Peart J delivered his judgment on the full hearing of the ![]() ![]() 9. This appeal is concerned only with the post-order procedures under the Act. Almost all relevant provisions are contained in section 16. 10. Under section 16( ![]() ![]() ![]() ![]()
12. That provision for the postponement of the surrender is to be read together with sub-sections (4) and (6). Sub-section (4) provides:
(b) of his or her right to make a complaint under ![]() ![]()
![]() ![]()
![]() ![]() ![]() ![]() ![]() ![]() 16. Before turning to section 16(7), which is the nub of the case, I should refer to sub-section (5), which provides: 17. "Subject to subsection (6) and section 18, a person to whom an order for the time being in force under this section applies shall be surrendered to the issuing state not later than 10 days after— (a) the expiration of the period specified in subsection (3), or (b) such date (being a date that falls after the expiration of that period) as may be agreed by the Central Authority in the State and the issuing state." 18. In this case, there has been no agreement for surrender on a different date with the issuing state. In fact, Mr Patrick McCarthy, Senior Counsel, on behalf of the respondents submitted that it would not have been permissible for the state to reach such an agreement , as there was no “order for the time being in force” in relation to the Appellant. 19. The entire case turns, therefore, on sub-section (7):
21. Therefore, on the face of it, the Appellant was entitled to be released from custody at the expiry of twenty five days (ten days after the coming into effect of the order) from the date of the making of the order of Finlay Geoghegan J, namely on 15th November 2005. 22. The respondents, in support of the decision of Peart J, submit that the right to release does not arise. The Appellant has exercised his right of appeal to this Court. Section 16(12) restricts the constitutional right to appeal to points of law only. It reads as follows:
23. Nonetheless, however restricted, there is a right of appeal. Mr McCarthy submits that it would be both unlawful and unconstitutional for the Minister to surrender the Appellant to the issuing state, while his appeal is pending. He submitted that, for the purposes of sub-section 7, there was no “order for the time being in force under” the section in relation to the Appellant, once he had served his notice of appeal. Clearly, this is an extremely difficult argument to justify. The order of Finlay Geoghegan J is still in existence, even though, until the day of the hearing of this appeal, it was under appeal. There was no stay on the order, except in respect of the fifteen day period provided in the section. Order 58, rule 18provides:
25. Insofar as I can discern the real thrust of the respondents’ argument, it seems to be based on the need to respect the right of the Appellant to pursue his appeal. It is unusual, to say the least, to find the state arguing that a person should be deprived of one constitutional right (liberty) in order to protect another (the right of appeal). Moreover, there is no necessary connection between the Appellant’s right to pursue his appeal and his right to be at liberty while it is pending. The appeal does not depend on his being in custody. Thus, I find the respondents arguments unconvincing. 26. I return to the words of sub-section (7). It mandates the release of the Appellant. That mandatory obligation is qualified only in the case that ![]() ![]() 27. I would make one final observation. It relates to the obligation of the Court to interpret the Act of 2003 in the light of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member states, which the legislation implements. The obligation to release a person whose surrender has been ordered, if he has not been surrendered ten days after date of the order comes into effect reflects, subject to the introduction of the fifteen-day period, the provisions of paragraph 5 of ![]() ![]()
28. The true meaning and intent of that provision has not been argued in this case. It may have to await a decision of the Court of Justice. The order of this Court is made pursuant only to ![]() | ||||||||||||||