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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Minister for Justice, Equality and Law Reform -v- S. R.  IESC 54 (15 November 2007)
Cite as:  2 IR 242,  IESC 54
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Judgment Title: Minister for Justice, Equality and Law Reform -v- S. R.
Composition of Court: Murray C.J., Denham J., Kearns J., Macken J., Finnegan J.
Judgment by: Finnegan J.
Status of Judgment: Approved
Notes on Memo: Allow appeal - Dismiss cross appeal. Make order for surrender
THE SUPREME COURT
430/2005 and 441/2005Murray C.J.
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
S M R
RESPONDENT/RESPONDENTJudgment of Mr Justice Finnegan delivered on the 15th day of November 2007
The Respondent was arrested on the 18th April 2005 on foot of a European arrest warrant issued on the 17th February 2005, endorsed by the High Court on the 12th April 2005. He is an Irish national and was born on the 12th November 1939. The European arrest warrant relates to three offences under section 14 of the United Kingdom Sexual Offences Act 1956 of indecent assault on his granddaughter who was born on the 28th December 1991 and which offences it is alleged were committed between the 30th June 2000 and the 1st September 2001.
The Respondent left Ireland to work in England at the age of 15 and continued to live there until 2001 but frequently returning to Ireland for holidays and to visit relations. His wife died in July 2000. As a result of his wife’s death the family home had to be sold to satisfy claims of the Inland Revenue. His intention had been to reside in England with a daughter and son-in-law but he changed his mind after returning from a family holiday in Ireland in 2001 and in 2001 returned to live in Co. Kerry in sheltered accommodation provided by the Town Council. He describes his tenancy as a tenancy for life: while in practical terms this may be so the tenancy itself provides that it may be terminated at any time by the Council on giving four weeks notice. The tenancy further provides that the tenant shall not without the permission of the Council cease to reside in the premises for more than six weeks in any period of fifty two weeks.
The circumstances in which the offences were committed are set out in the European arrest warrant at paragraph (e) thereof as follows –
Allison Claire Reilly, who had conduct of the case on behalf of the Crown Prosecution Service, swore an affidavit in the matter dealing with the circumstances of the complaint. In September 2001 S told her mother that the Respondent had touched her inappropriately. In January 2002 her father informed Barnet Social Services of that fact but said that he did not want the police to become involved as the Respondent was in Ireland and the complainant was safe. On the 16th July 2002 the father contacted Social Services again and requested police involvement. As a result on the 25th July 2002 the police interviewed S’s parents. S made a statement on video link on the 2nd August 2002. On the 15th October 2002 S’s sister C made a statement by video link. On the 25th October 2002 S’s sister S made a written statement. (Ms. Riley was cross-examined on her affidavit and from her answers she may have been in error and C may be the mother and S the aunt of the complainant). On the 30th October 2002 the Crown Prosecution Service decided to seek the Respondent’s extradition. At that time the Crown Prosecution Service was aware that the Respondent returned to the United Kingdom from time to time to attend to financial matters and to attend Harefield Hospital, Middlesex, where he was receiving treatment for a heart condition. A domestic warrant for the Respondent’s arrest was issued on the 14th January 2003 and he was circulated as wanted on the police national computer. Progress with the European arrest warrant was delayed however for two reasons –
2. A Bill to amend to the European Arrest Warrant Act 2003, section 12 (3) was pending the effect of which would be to provide that an undertaking required under the Act might be set out in the European arrest warrant or in a separate document an effect of which would be to avoid the necessity for written undertakings to be provided in respect of specialty and re-extradition to a third territory and to obviate the need for such undertakings to be given by the judicial authority. The Criminal Justice (Terrorist Offences) Bill was presented to Dáil Éireann on the 16th December 2002 and enacted on the 8th March 2005. However the relevant amendment to the European Arrest Warrant Act 2003 was introduced at Committee stage which was taken on the 4th November 2004. Ms. R in cross-examination said that she was aware of the proposal to amend the 2003 Act from April/May 2004.
The Respondent’s points of opposition as amended and extended relevant to the appeal were as follows
2. It is contended on behalf of the Respondent that his surrender to the United Kingdom is prohibited by section 37(1)(b) of the European Arrest Warrant Act 2003 and in particular by the constitutional guarantees of natural and constitutional justice, due process, right to a fair trial and right to an expeditious trial in circumstances such as exist where a requesting authority has delayed in requesting the Respondent’s surrender.
2A. The right to due process and the right to trial with due expedition of the Respondent as guaranteed by Article 38.1 of the Constitution of Ireland and Article 5 of the European Convention on Human Rights have been breached in that:
(ii) The Respondent was arrested on foot of the within warrant on the 18th April 2005 notwithstanding that the English arrest warrant of the 14th January 2003 on which the European arrest warrant was based was issued over two years previously which indicates prosecutorial delay.
(iii) The Respondent has suffered actual prejudice by reason of the delay in that
(b) he had returned to live permanently in Co. Kerry, Ireland, in 2003 and ceased visiting England in or around November 2003 due to the adverse effects on his health caused by travelling to England.
(2C)The proposed surrender of the Respondent in the circumstances of his ill-health is a breach of his constitutional fundamental rights, in particular, the right to bodily integrity and his right not to have his health endangered by the Applicant as guaranteed by Article 40.3.1. and 40.3.2 of the Constitution of Ireland and Article 3 of the European Convention on Human Rights.”
Peart J. gave judgment on the application on the 15th November 2005. He refused to make an order for the surrender of the Respondent on grounds both of the Respondent’s health and of delay and ordered accordingly. Against that order there is an appeal by the Appellant and a cross-appeal by the Respondent. The cross appeal relates to an issue which arose in the course of the hearing, that the domestic warrant appears to relate to one offence only whereas the European arrest warrant relates to three offences.
The Appellant contends that the learned trial judge was in error in refusing to surrender the Respondent firstly on the ground that his surrender would violate his constitutional right to bodily integrity and secondly that his constitutional right to an expeditious trial has been breached by delay. Before dealing with the first ground it is necessary to deal with a preliminary point raised by the Respondent.
The European Arrest Warrant Act, 2003, Section 16(12) provides for an appeal to the Supreme Court on a point of law only. The learned trial judge made findings of fact in the following terms -
I am also satisfied that the evidence shows that the Respondent’s health has in fact worsened during the period constituting the ‘passage of time’ in this case. I am not, however, to be taken as deciding that this is something which would have to be shown in every case. Each case would have to be considered on its own particular facts.”
The Respondent contends that the finding of fact by the trial judge cannot be disturbed on appeal and that this finding together with the concession made by the Appellant have the effect that an appeal cannot succeed. Further the Appellant’s Notice of Appeal does not challenge the finding of fact.
The Respondent relies on the decision of the Supreme Court in Hay v O’Grady  1 I.R. 210. It was there held that this court will not interfere with findings of fact made by a trial judge who hears oral evidence if such findings are supported by credible evidence. The underlying reason for this is that this court does not enjoy the opportunity of seeing and hearing the witnesses and observing the manner in which they gave evidence. This is not so where the trial is on affidavit. Where the trial is on affidavit considerable respect must be paid to the view of a learned and experienced trial judge: McDonald v Radio Telefís Éireann  1 I.R. 355. However here, in addition to the evidence on affidavit, one deponent Ms R was cross-examined on her affidavit filed in the matter. Neither her affidavit nor her evidence given on cross-examination relate to the health of the Respondent and accordingly in relation to this issue this court is in as good a position to make findings of fact as was the learned trial judge. Accordingly it is open to this court to assess the affidavit evidence in relation to the Respondent’s health and to make findings on the same different to those made by the learned trial judge. As to the legal consequences of findings of fact this court is at large.
The Respondent’s Health
The learned trial judge found as a fact on the evidence before him that the Respondent is at a real risk of dying if placed in any situation of severe stress and that the pre-trial period, including his surrender, and the trial itself would constitute a severely stressful situation. He also found that the Respondent’s health had worsened with the passage of time. He performed a balancing exercise between the risk to the Respondent’s health and the interest of the Crown Prosecution Service on behalf of the citizens of England and Wales to have the serious charges prosecuted and brought to trial and held that the latter interest must yield to the Respondent’s constitutional right to bodily integrity and life itself.
The evidence before the learned trial judge consisted of an affidavit of the Respondent in which he dealt inter alia with his health and which exhibited three medical reports - a report of Dr. N.R. Banner dated 20th February 1998, a report of Dr. Aidan Daly dated 3rd May 2005 and a report of Dr. Peter Kearney dated 6th July 2005. Dr. Banner is a consultant in cardiology. The Respondent had a coronary by-pass in 1988 and a heart attack in 1994. From Dr. Banner’s report it appears that consideration was given to a transplant in February 1998 as his coronary circulation was dependent on one single vein graft. It was not felt that the Respondent’s symptoms were severe enough to warrant the same. As to the Respondent’s condition at that date Dr. Banner reports –
Dr. Aidan Daly’s report continues as follows –
S M R has very advanced coronary heart disease. He underwent coronary artery bypass grafting in 1988, suffered serial acute myocardial infarctions in the intervening period, and when he presented to us in March 2004 complaining of limiting angina we found very poor heart muscle pump function and severe disease of both his native vessels and bypass grafts.
It is thus clear that the Respondent has chronic impairment of heart muscle function and is at risk of developing heart failure. Stress may precipitate acute coronary disease and if at all possible should be avoided. His operations in June and September 2004 were successful. An acute coronary event “might well prove catastrophic in limiting heart function.” I do not understand this to mean that an acute coronary event is likely to be fatal but rather that it would result in further limiting heart muscle function.
“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.”
The Respondent relies on The State v Frawley  I.R. 365 where Finlay P. held that the right of bodily integrity is an unspecified constitutional right. In relation to that right at p.372 he said -
The court, I am satisfied, must balance the risk to the health of the Respondent directly related to his surrender on the one hand and the obligations of the State under the Framework Decision.
In L.C.B. v United Kingdom  27 E.H.R. 212 the European Court of Human Rights recognised a positive obligation on a state under Article 2(1) of the Convention to take appropriate steps to safeguard the lives of those within their jurisdiction: however the extent of that right has not been fully explored in the jurisprudence of that court and its decisions are of no assistance in the present circumstances.
In Carne v Assistant Garda Commissioner Patrick O’Toole, the Supreme Court, Geoghegan J., unreported 21st April 2005, this court considered the Applicant’s health in the context of a request for extradition. The Applicant was 64 years of age and had serious medical problems. In the previous six months while in prison awaiting extradition he had suffered two strokes. He contended that the stress to which he would be subjected in facing trial would endanger his health, that his medical condition would be aggravated and his health further endangered if he should be incarcerated and that his medical condition would render imprisonment oppressive. An effect of the strokes was that he had difficulty in remembering and recollecting events that took place in the past. A medical report exhibited by him revealed that as a result of a stroke on admission to hospital he had chest pain and weakness of the right upper and lower limbs. A CT scan showed an infarct affecting the right parietal lobe. He had had a previous stroke in 1994. He had hardening of the archeries. He had heart treatment in 2001. He had treatment for high blood pressure. He had extensive vascular disease. He had coronary disease and a moderate degree of narrowing of the aortic valve. He had high blood pressure. A further report which he exhibited disclosed a proposed operation for narrowing of the aortic valve which operation would require nineteen days in hospital and a further period of six months for full recovery. The court held that his medical condition did not constitute an exceptional circumstance for the purposes of the Extradition Act 1965 section 50(2)(bbb). It was held that the courts of this jurisdiction are entitled to take judicial notice of the obvious fact that criminal trials in England are conducted in a broadly similar fashion to criminal trials in this jurisdiction.
The evidence as to the Respondent’s health is not such as would prevent a person in similar circumstances to the Respondent being put on trial in this jurisdiction. In the present case there is no suggestion that the Respondent’s ability to recollect events is affected. Nor is it suggested that he would be incapable of adequately instructing his solicitor and counsel or actively participating in his trial. The sole issue for the court is whether, adopting the words of Dr Peter Kearney, the fact that psychological or physical stresses attending his surrender may precipitate acute coronary disease and should if at all possible be avoided outweighs the interest of the requesting authorities in having the alleged offences prosecuted.
The position which applies in the United Kingdom in relation to persons on bail or in custody is set out in an affidavit of Adina Esekiel, a practising barrister.
“8. A person remanded on bail has the same access to medical services as any other individual. Medical services in England and Wales are provided free by the NHS. The NHS includes the service of a general practitioner and referral to and treatment by a specialist.
9. The courts in England and Wales have power to impose conditions of bail. Such conditions may include a condition of residence at a particular address. Where there is difficulty finding a suitable address, the courts have power to remand a person to a bail hostel. Bail hostels are run by the Probation Service and provide a place for a person remanded on bail to stay for the duration of the criminal proceedings or until further order by the court.”
Ms Esekiel further deposes that the Prison Service has an obligation to protect a prisoner’s right to life. Where a person is remanded in custody, on admission to prison such person undergoes an examination performed by a member of the prison health care team in order to assess the health care needs of the individual. Health services are provided by a team of health care professions within the Prison Service and from the NHS. If a particular problem cannot be dealt with fully at a prison the prisoner may be moved to another prison where the necessary facilities are available or may be attended by a specialist in prison or taken to a NHS hospital outside of prison. All prisons are subject to inspection which inspections are conducted on the basis of international human rights standards. In addition there is an independent monitoring board which monitors the welfare of prisoners.
On the basis of this affidavit and insofar as this is relevant having regard to the onus on this issue which rests on the respondent I am satisfied that in the United Kingdom, and whether on bail or in custody, the Respondent will receive appropriate health care. While Dr. Kearney is of opinion that stress may precipitate acute coronary disease and should be avoided I am satisfied that something much more definite by way of threat to life would be required in this jurisdiction before the courts would involve article 40.3.2. of the Constitution and prohibit a trial. The possibility that stress may precipitate acute coronary disease, I am satisfied, is insufficient. The evidence before the court and in particular the medical report of Dr. Peter Kearney, the Respondent’s treating consultant, does not justify the learned trial judge’s conclusion that the Respondent is at a real risk of dying if placed in any situation of severe stress. The report, as I understand it, is to the effect that a further acute coronary event might well prove catastrophic in further limiting heart muscle pump function. The report read in conjunction with the other medical reports relied upon does not justify the learned trial judge’s conclusion that the Respondent is at a real risk of dying if placed in any situation of severe stress.
I would allow the appeal on this ground.
In referring to delay on the part of the Appellant I should make it clear that there was no delay on the part of the Minister for Justice Equality and Law Reform. However as the Appellant in these proceedings the Minister will be fixed with responsibility for such delay as occurred on the part of the United Kingdom police authorities and the Crown Prosecution Service. It is convenient to set out a chronology:-
August, 2001, complainant disclosed allegations to her mother,
September, 2001, Respondent confronted with allegations by complainant’s mother,
January, 2002, complainant’s father disclosed allegations to Barnet Social Services but required no disclosure to police,
16th July, 2002, complainant’s father requested Barnet Social Services to inform police,
2nd August, 2002 - 25th October, 2002, police obtained statements,
30th October, 2002, Crown Prosecution Service decided to seek Respondent’s extradition,
14th January, 2003, domestic warrant issued,
17th February, 2005, European arrest warrant issued.
The explanation for the delay between the decision to extradite the Respondent and the issue of the European arrest warrant is as follows. A prerequisite to the issue of the European arrest warrant is the issue of a domestic warrant. The decision to extradite was made on the 30th October 2002. The domestic warrant was issued on the 14th January, 2003. Thereafter there was a delay until the 17th February, 2005, when the European arrest warrant was issued. The explanation for this delay is given in an affidavit of Alison Claire Reilly sworn on the 28th September, 2005, in the following terms -
The issue in The Minister for Justice Equality and Law Reform v. Dundon, Supreme Court, 16th March 2005 unreported, was whether the European Arrest Warrant Act 2003 required undertakings to be given personally by the judge or court issuing the European arrest warrant: it was held by both the High Court and the Supreme Court that it did not. Thereafter the European arrest warrant in this case issued on the 18th April, 2005. The evidence of Ms. Riley on cross-examination is that the European arrest warrant was prepared in anticipation of the decision of the Supreme Court and sent for signature immediately after the decision.
The Criminal Justice (Terrorist Offences) Bill, was presented to the Dáil on the 16th December, 2002, but the provisions thereof amending the European Arrest Warrant Act, 2003, were not introduced until the Committee stage on the 4th November, 2004. The Act was passed on the 8th March 2005. There is no information available as to when the Crown Prosecution Service became aware of the intention to introduce the amendments but Ms Riley in evidence on cross-examination said that she was made aware of the intention by a fellow lawyer in the Crown Prosecution Service prior to May 2004.
On this issue it was further argued on behalf of the Respondent that the delay was the result of unfair and oppressive conduct on the part of the Appellant in that the delay was incurred as a result of an attempt by the Applicant to procure a procedural benefit resulting from the decision of the Supreme Court in Minister for Justice, Equality and Law Reform v Dundon and the amendment of the European Arrest Warrant Act 2003. The learned trial judge rejected this argument.
The law as to delay in the context of a European arrest warrant is now well settled. In Minister for Justice Equality and Law Reform v Stapleton, Supreme Court 26th July 2007 Fennelly J., the central issue on the appeal was the extent to which our courts, in dealing with surrender requests under the procedures for the European arrest warrant, should seek to incorporate Irish case-law with regard to lapse of time or delay in criminal proceedings by grafting it on to surrender requests. In that case there had been considerable prosecutorial delay and prejudice. The offences alleged to have been committed occurred between 1978 and 1982 and the European arrest warrant was issued only on the 20th July 2005. In the interim three witnesses relevant to the defence had died and much of the documentation required by the defence was no longer available. The learned High Court judge found that there were possible differences between the level of protection to which the Respondent would be entitled in England and what would be available to him in this jurisdiction. There was not, he held, the same regard for a free standing right to an expeditious trial even in the absence of actual prejudice. In the course of his judgment Fennelly J. said:-
In Minister for Justice Equality and Law Reform v Brennan  IESC 21 Murray C.J. said:-
In allowing the Minister’s appeal in Minister for Justice, Equality and Law Reform v Stapleton, Fennelly J. said:-
In short the issue of delay is one for consideration by the courts of the United Kingdom.
As to whether the circumstances that the delay in this case was incurred due to the Appellant awaiting the decision in Dundon and the amendment to the European Arrest Warrant Act 2003 should lead to a refusal to surrender I am satisfied that they do not. While the Framework Decision in Article 17.1 provides that a European arrest warrant shall be dealt with as a matter of urgency it is clear from the decision in Dundon v Governor of Clover Hill  1 I.L.R.M. 321 that this requirement is directed to internal discipline within the Member States and is not intended to confer individual rights. The conduct complained of does not amount to an abuse of process. Among the objectives of the Framework Decision which appear from the recitals in the same are to remove complexity and the potential for delay in extradition procedures. It was consonant with these objectives to await clarification of Irish law and if appropriate simplification of the same. To move in advance of that would most likely have resulted in surrender being delayed pending the outcome of Dundon or the passing of the amending legislation. In any event this issue I am satisfied is one for consideration by the Courts of the United Kingdom in the context of their consideration of delay as a whole.
The Cross Appeal
On behalf of the Respondent it is submitted that he ought not to be surrendered as the domestic warrant on foot of which the European arrest warrant was issued refers to one offence only whereas the European arrest warrant refers to three offences. The basis of this submission is that the European arrest warrant described the offence at paragraph (e) as “indecent assault on a female” and goes on to say that the European arrest warrant related to three offences and gives particulars of each. At the hearing there was evidence available as to the law in the requesting State as to domestic warrants and the European arrest warrant. The European arrest warrant was issued under the United Kingdom Extradition Act 2003 section 3(2) which requires a domestic warrant to have been issued in respect of a person before a European arrest warrant is issued in respect of that person. The domestic warrant must be in relation to an extradition offence. The European arrest warrant, if it is in relation to more than one extradition offence, must specify those offences. On the evidence before him the learned trial judge was satisfied, and was entitled to be satisfied, that the domestic warrant was valid under the law of the requesting state.
As to the law in this jurisdiction the European Arrest Warrant Act 2003 section 11 as amended by the Criminal Justice (Terrorist Offences) Act 2005 section 72 provides as follows –
(e) that a conviction, sentence or detention order is immediately enforceable against the person, or that a warrant for his or her arrest, or other order of a judicial authority in the issuing state having the same effect, has been issued in respect of the offence;
(f) the circumstances in which the offence was committed or is alleged to have been committed, including the time and place of its commission or alleged commission and the degree of involvement or alleged degree of involvement of the person in the commission of the offence.”
This mirrors the requirements of the Framework Decision, Article 8(1)(c)(d) and (f). The form of a European arrest warrant is contained in the Annex to the Framework Decision. At paragraph (b) details are required of the domestic warrant and this is satisfied in this case by furnishing the information that the warrant was issued at Hendon Magistrates Court on the 14th January 2003. Section 11(1A)(e) of the Act and Article 8(1)(f) of the Framework Decision are likewise satisfied.
Section 11(1A)(d) mirrors Article 8(1)(d) of the Framework Decision which requires a European arrest warrant to contain the nature and legal classification of the offence “particularly in respect of Article 2”. Article 2 paragraph 2 lists offences which, provided they are punishable by a custodial sentence or detention for a maximum period of at least three years, do not require verification of double criminality. The form of European arrest warrant makes clear that what is required is a statement of the offence e.g. rape, arson or murder. The purpose is to disclose whether the offence comes within Article 2 paragraph 2 or Article 2 paragraph 4. Article 2 paragraph 4 provides that for offences other than those listed in paragraph 2 surrender may be subject to a condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State. The latter is the case here. The information furnished in the European arrest warrant at (e) in this case is entirely appropriate. The offence is described as follows:
The European arrest warrant in this case at paragraph (e) goes on to specify the number of offences as three and sets out the conduct constituting each of the three offences of indecent assault on a female for the purposes of Section 11(1A)(f) and Article 8 paragraph 1(e). The provisions of the United Kingdom Sexual Offences Act 1956 pursuant to which it is proposed to charge the Respondent are set out in full with further information as to the constituents of the offence.
I am satisfied that section 11(1A)(d),(e) and (f) each use the word “offence” in the same sense. There is a presumption that the same word bears the same meaning throughout the same statute: Coward v Motor Insurers Bureau  Ch. 113. The meaning which I have ascribed to “offence” in relation to Section 11(1A)(d) of the Act is the meaning for the purposes of section 11(1A)(e) and (f) also. Accordingly section 11(1A)(e) requires only that a warrant has been issued for the offence described – indecent assault on a female – and that there is no requirement to provide further details of the domestic warrant. Having regard to the decision of this court in the Minister for Justice Equality and Law Reform v Altaravicius, the mere assertion that there was a defect or that there might be a defect in the domestic warrant is not sufficient to put the court on enquiry.
For these reasons I would dismiss the cross-appeal.
I would allow the appeal and dismiss the cross-appeal.