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Cite as:  IESC 5
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Judgment Title: MJELR v Renner-Dillon
Neutral Citation:  IESC 5
Supreme Court Record Number: 104/10
High Court Record Number: 2007 196 EXT
Date of Delivery: 11/02/2011
Court: Supreme Court
Composition of Court: Murray C.J., Denham J., Finnegan J.
Judgment by: Finnegan J.
Status of Judgment: Approved
THE SUPREME COURT
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
Judgment of Mr Justice Finnegan delivered on the 11th day of February 2011
By a European arrest warrant dated 20th November 2007 the United Kingdom sought the appellant’s surrender for the purposes of his being charged with an offence of rape the allegation being that on the 13th October 2002 within the United Kingdom he raped one Ashley Carr. By order of the High Court of the 16th January 2008 it was ordered that the appellant be surrendered. On the 3rd June 2008 the appellant pleaded guilty in the United Kingdom to that offence and was sentenced to a term of imprisonment of nine years.
On the 17th June 1983 the appellant was acquitted at Newcastle-Upon-Tyne Crown Court of an offence of rape. Particulars of the alleged offence (hereinafter “the offence”) were that on the 17th December 1982 the respondent had raped his maternal grandmother Jennifer Anderson. Forensic samples taken at that time were re-examined during 2005 and 2006 and in consequence the prosecuting authorities decided to seek to avail of a statutory entitlement to have the appellant’s acquittal quashed and a re-trial ordered. For that purpose the consent of the High Court pursuant to section 22 of the European Arrest Warrant Act 2003 as substituted by the Criminal Justice (Terrorist Offences) Act 2005 section 80 was sought from the High Court. By order dated the 25th March 2010 the High Court (Peart J.) gave consent pursuant to section 22(7) aforesaid to proceedings for the offence of rape alleged to have been committed by the respondent on the 17th December 1982. From that order the appellant appeals to this court. The issue which arises on the appeal is whether the order of acquittal of the 17th June 1983 is a final judgment within the meaning of section 41 of the European Arrest Warrant Act 2003.
Proceedings in the United Kingdom
(a) quashing a person’s acquittal in proceedings within section 75(1), and
(b) ordering him to be re-tried for the qualifying offence.”
The appellant’s submissions rely upon a number of matters which appear from the judgment of the Court of Appeal.
2. The appellant was charged with the offence and the application was made for an order quashing the acquittal without having first obtained the consent of the High Court of Ireland and in breach of the rule of specialty. In the course of its judgment the Court of Appeal said:-
“…the statutory prohibition against dealing with a person extradited to the United Kingdom from the Republic of Ireland (sic) for any relevant offence other than the one for which he was extradited is express and unequivocal. The defendant was not extradited for the 1982 offence. The speciality rule has not been waived. He may only be dealt with in this country if the High Court in Dublin consents. This is a decision for an independent court in a sovereign country. It is already clear that in the Republic the principle against double jeopardy continues in its full force and an appeal against an acquittal and consequential re-trial not permitted. For the purposes of the High Court in Dublin the acquittal of the defendant in 1983 was indeed a final judgment. However that may be, and however the argument in support of the application for the consent of the court in Dublin may be advanced, the ultimate question is whether the process already undertaken within this jurisdiction in relation to the 1982 offence has already contravened the express provision in section 146(2) of the Extradition Act.
The phrase “dealt with in the United Kingdom” might but would not necessarily involve prior administrative acts such as, for example, the obtaining of the consent of the Director of Public Prosecutions under section 76(3) and (4)of the Criminal Justice Act 2003. However, as it seems to us, to charge the defendant with the offence would probably fall within its ambit. In our judgment, however, an application to this court for an order which involved a judicial act of quashing the defendant’s acquittal and for an order for a new trial for an offence for which the defendant had not been extradited would certainly do so. Such an order is a preliminary but absolutely essential step in the process which is intended to and would culminate in the defendant’s trial on indictment for the 1982 offence. The offence is therefore being dealt with in our judicial process. The reality is that we cannot press the restrictions contained in the Extradition Act 2003 into conformity with the dilution of the principle against double jeopardy enacted in the Criminal Justice Act 2003.”
The Framework Decision of 13th June 2002 provides in Article 3 as follows:-
Grounds for Mandatory Non-Execution of the European arrest warrant.
The judicial authority of the Member State of execution (hereinafter “executing judicial authority”) shall refuse to execute the European arrest warrant in the following cases:
1. if the offence on which the arrest warrant is based is covered by amnesty in the executing Member State, where that State had jurisdiction to prosecute the offence under its own criminal law;
2. if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same Acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State;
3. if the person who is the subject of the European arrest warrant may not, owing to his age, be held criminally responsible for the Acts on which the arrest warrant is based under the law of the executing State.”
(2) Subject to this section the High Court shall refuse to surrender a person under this Act if it is satisfied –
(a) the law of the issuing state does not provide that a person who is surrendered to it pursuant to a European arrest warrant shall not be proceeded against, sentenced or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence, and
(b) the person will be proceeded against, sentenced, or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence.
(3) It shall be presumed that, in relation to a person to whom a European arrest warrant applies, the issuing state does not intend to-
(a) proceed against him or her,
(b) sentence or detain him or her for a purpose referred to in subsection (2)(a), or
(c) otherwise restrict him or her in his or her personal liberty,
in respect of an offence, unless the contrary is proved.
(4) The surrender of a person under this Act shall not be refused under subsection (2) if-
(a) upon conviction in respect of the offence concerned he or she is not liable to a term of imprisonment or detention, or
(b) the High Court is satisfied that, where upon such conviction he or she is liable to a term of imprisonment or detention and such other penalty as does not involve a restriction of his or her personal liberty, the said other penalty only will be imposed if he or she is convicted of the offence.
(5) The surrender of a person under this Act shall not be refused under subsection (2) if it is intended to impose in the issuing state a penalty (other than a penalty consisting of a restriction of the person’s liberty) including a financial penalty in respect of an offence of which the person claimed has been convicted, notwithstanding that where such person fails or refuses to pay the penalty concerned (or, in the case of a penalty that is not a financial penalty, fails or refuses to submit to any measure or comply with any requirements of which the penalty consists) he or she may under the law of the issuing state be detained or otherwise deprived of his or her personal liberty.
(6) The surrender of a person under this Act shall not be refused under subsection (2) if the High Court –
(a) is satisfied that -
(ii) a penalty will not be imposed on the person in respect of an offence, and
(iii) the person will not be detained or otherwise restricted in his or her personal liberty for the purposes of an offence,
(b) is satisfied that -
(ii) at the time of so consenting he or she consented to being so proceeded against, to such a penalty being imposed, or being so detained or restricted in his or her personal liberty, and was aware of the consequences of his or her so consenting, and
(iii) the person obtained or was afforded the opportunity of obtaining, or being provided with, professional legal advice in relation to the matters to which this section relates,
(ii) during that period he or she will be free to leave the issuing state,
(d) is satisfied that such proceedings will not be brought, such penalty will not be imposed and the person will not be so detained or restricted in his or her personal liberty unless -
(ii) that consent is given before the competent judicial authority in the issuing state, and
(iii) the person obtains or is afforded the opportunity of obtaining, or being provided with, professional legal advice in the issuing state in relation to the matters to which this section relates before he or she gives that consent.
(a) proceedings being brought against the person in the issuing state for an offence,
(b) the imposition in the issuing state of a penalty, including a penalty consisting of a restriction of the person’s liberty, in respect of an offence, or
(c) proceedings being brought against, or the detention of, the person in the issuing state for the purpose of executing a sentence or order of detention in respect of an offence, upon receiving a request in writing from the issuing state in that behalf.
(8) The High Court shall not give its consent under subsection (7) if the offence concerned is an offence for which a person could not by virtue of Part 3 or the Framework Decision (including the recitals thereto) be surrendered under this Act.”
For the appellant it was submitted that as long as the acquittal of the appellant subsists it must be seen as a final judgment and accordingly there was no jurisdiction to consent to the prosecution of the appellant for the offence. On the application to the Court of Appeal the prosecution had accepted that the acquittal is a final order for all purposes. It was submitted that the Court of Appeal had accepted the acquittal as a final judgment for the purposes of the High Court of Ireland. Apart from Section 76(1) of the Criminal Justice Act 2003 any acquittal in the courts of the United Kingdom would prevent a re-trial for the same offence and as no order under section 76(1) has been made quashing the acquittal the acquittal remains a final judgment.
The respondent relied upon a number of decisions of the Court of Justice of the European Communities which concerned the Schengen Agreement dealing with the provisions of Article 54 of the Convention implementing the Schengen Agreement between a number of Member States and which provides as follows:-
The learned trial judge held that while the acquittal could be said to be within the phrases “finally judged” or “final judgment” that is not the end of the matter. Section 41 of the Act required to be construed in conformity with the aims and objectives of the framework decision under the principles of conforming interpretation stated by the European Court of Justice in the Pupino case C-105/03. He held that, so construing section 41, where it was clear that a retrial would not take place until the earlier acquittal had been quashed and a retrial ordered, and having regard to the principle of mutual recognition of judicial decisions and mutual trust of the legal systems of other Member States, it is in accordance with the objectives of the Framework Decision that the appellant be surrendered. Once a judgment, whether of conviction or acquittal, is quashed no question of double jeopardy arises. The judgment of acquittal was never a final judgment in the sense that it could never be set aside. A judgment could be set aside on appeal in the case of conviction or on an application pursuant to the United Kingdom Criminal Justice Act 2003 section 76(1) in the case of an acquittal. It is appropriate to interpret “final judgement” in section 41 as not including a judgment of acquittal which can be quashed by a prosecutor’s appeal particularly where the Court of Appeal has indicated that it will quash the acquittal and order a retrial if the consent of the High Court is forthcoming.
The court in interpreting the provisions of the European Arrest Warrant Act 2003 as amended must do so, so far as possible in the light of and so as not to be in conflict with the provisions of the Framework Decision: Criminal proceedings against Pupino  E.C.R. 1-5285. The starting point for any interpretation accordingly is the recitals in the Framework Decision. The following recitals are relevant:-
Recital (6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the “cornerstone” of judicial co-operation.
Recital (10) The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof. “
In this regard decisions of the European Court of Justice in cases on Article 54 of the Schengen Agreement are relevant. Cases on Article 54 consistently recognise that Contracting Parties should recognise the criminal laws in force in other Member States even when the outcome would be different if its own national law had been applied: R. v Gozutok and Brugge  C.M.L.R. 2, Van Esbroeck  3 CMLR 6 at para 30.
This court has the benefit of the decision of the European Court of Justice in Mantello Case C.261/09 of 16th November 2010 on the interpretation of Article 3.2 of the Framework Decision. An Italian court issued a European arrest warrant in respect of Mr Mantello in relation to criminal proceedings instituted against him. The prosecution concerned two charges:-
2. At the same time and at the same places acting alone or in concert with others he had unlawfully taken possession of, retained, transported, sold or disposed of cocaine to third parties.
The referring court enquires whether given the fact that, when the judgment of 30th November 2005 was delivered, the Italian investigating authorities were in possession of evidence pertaining to acts carried out in the period from January 2004 to November 2005 which could have proved that Mr Mantello had committed offences relating to participation in a criminal organisation and had been in illegal possession of drugs, that judgment could be regarded as constituting not only a final judgment convicting him in respect of the individual acts of 13th September 2005 in relation to which the offence of illegal possession of drugs intended for re-sale was applied, but also a judgment precluding subsequent prosecution of offences such as those referred to in the arrest warrant.
44. In other words, that court asks whether the fact that the investigating authorities held evidence concerning acts which constituted the offences referred to in the arrest warrant, but did not submit that evidence for consideration by the Tribunale Catania when that court ruled on the individual acts of 13th September 2005, makes it possible to treat the judgment as if it were a final judgment in respect of the acts set out in that arrest warrant.
45. In that regard, the requested person is considered to have been finally judged in respect of the same acts within the meaning of article 3.2 of the Framework Decision where, following criminal proceedings, further prosecution is definitively barred (see, by analogy joint cases C187/01 and C-385/01 Gozutok and Brugge  E.C.R. 1-1345, paragraph 30 and case C-491/07 Turansky  E.C.R. 1-11039, paragraph 32) or where the judicial authorities of a Member State have adopted a decision by which the accused was finally acquitted in respect of the alleged acts (see by analogy, Van Straaten paragraph 61, and Turansky, paragraph 33.)
46. Whether a person has been finally judged for the purposes of Article 3.2 of the Framework Decision is determined by the law of the Member State in which judgment was delivered.
47. Thus a decision which, under the law of the Member State which instituted criminal proceedings against a person, does not definitively bar further prosecution at national level in respect of certain acts cannot, in principle, constitute a procedural obstacle to the possible opening or continuation of criminal proceedings in respect of the same acts against that person in one of the Member States of the European Union (see, by analogy, Turansky, paragraph 36).”
In circumstances such as those at issue in the main proceedings where, in response to a request for information within the meaning of Article 15(2) of the Framework Decision made by the executing judicial authority, the issuing judicial authority, applying its national law and in compliance with the requirements deriving from the concept of ‘same acts’ as enshrined in Article 3(2) of the Framework Decision expressly stated that the earlier judgment delivered under its legal system did not constitute a final judgment covering the acts referred to in the arrest warrant issued by it and therefore did not preclude the criminal proceedings referred to in the arrest warrant, the executing judicial authority has no reason to apply, in connection with such a judgment the ground for mandatory non-execution provided for in Article 3.2 of the Framework Decision.”
32. With regard to the concept of ‘finally disposed of’ the court has already declared, first in Gozutok  C.M.L.R. 2 that when, following criminal proceedings, further prosecution is definitively barred, the person concerned must be regarded as someone whose trial has been ‘finally disposed of’ for the purposes of Article 54 of the CISA in relation to the acts which he is alleged to have committed.
33. Second, it has held in Van Stratten v Netherlands  E.C.R. 1-9327 that article 54 of the CISA applies to a decision of the judicial authorities of a contracting State by which the accused is finally acquitted for lack of evidence.
34. It follows that, in principle a decision must, in order to be considered as a final disposal for the purposes of Article 54 of the CISA, bring the criminal proceedings to an end and definitely bar further prosecution.
35. In order to assess whether a decision is ‘final’ for the purposes of Article 54 of the CISA, it is necessary first of all to ascertain, as contended by the Austrian, Netherlands, Finish and U.K. Governments and by the Commission, that the decision in question is considered under the law of the Contracting State which adopted it to be final and binding, and to verify that it leads in that State, to the protection granted by the ne bis in idem principle.
36. A decision which does not, under the law of the first contracting state which has instituted criminal proceedings against a person, definitely bar further prosecution at national level cannot, in principle, constitute a procedural obstacle to the opening or continuation of criminal proceedings in respect of the same acts against that person in another contracting state.”
In Van Straaten v Netherlands, which is referred to in the judgment in Mantello, a judgment of acquittal was appealed and upheld on appeal: the acquittal on appeal was accordingly a final judgment. The European Court of Justice held at paragraph 61 as follows:-
It is clear that the acquittal of the appellant of the offence does not definitively bar the commencement of further criminal proceedings in respect of the offence under the law of the United Kingdom by virtue of the Criminal Justice Act 2003 section 76(1). Accordingly it cannot be said that the appellant has been finally judged in respect of the offence. Accordingly the grounds for mandatory non-execution of the European arrest warrant in Article 3.2 of the Framework Decision do not apply. Section 41 of the European Arrest Warrant Act 2003 transposes into Irish law Article 3.2 of the Framework Decision and must be given conforming interpretation. Having regard to the decision in Pupino the phrase “final judgment” in section 41(1) must bear the autonomous meaning ascribed by the European Court of Justice to “finally judged” in Article 3.2 of the Framework Decision. The judgment of acquittal in respect of the offence accordingly is not “a final judgment” within the meaning of section 41 of the Act of 2003. The surrender of the appellant is not prohibited by section 41(1) of the Act of 2003. While before the Court of Appeal in the United Kingdom counsel for the prosecution considered the judgment of acquittal to be a final judgment until such time as it should be quashed this is not determinative for the purposes of this application: it is clear on the jurisprudence of the European Court of Justice that for purposes of the European arrest warrant the judgment of acquittal is not a final judgment, as in Mantello the acquittal does not constitute “a procedural obstacle to the possible opening or continuation of the criminal proceedings.”
While the respondent in submissions raised an issue as to whether there are differences between the common law concept of double jeopardy and the civil law concept of ne bis in idem, as I am satisfied that the judgment of acquittal in issue in these proceedings is not a final judgment it is unnecessary to consider this issue.
I would dismiss the appeal an affirm the order of the High Court.