Supporting Documents:

THE SUPREME COURT

DETERMINATION

BETWEEN

BETWEEN

BETWEEN

Result: The Court does not grant leave to the Applicant to appeal to this Court in any of these applications.

Reasons Given:

Background to all of the applications

The EAW proceedings

1. The UK authorities seek the surrender of the applicant to Northern Ireland for the purpose of prosecuting him for murder and the possession of a firearm. He was arrested in this jurisdiction on foot of a European Arrest Warrant in January, 2013. The hearing under s.16 of the European Arrest Warrant Act 2003 (as amended) before the High Court (Murphy J.), concluded on the 4th September, 2015, with an order for the surrender of the applicant.

2. In the course of the lengthy High Court proceedings, (which included an Article 267 reference to the Court of Justice of the European Union concerning the legal effect of the statutory time limits), the applicant had sworn an affidavit in which he claimed that his life would be at risk in the event of surrender to Northern Ireland. Murphy J. found this to be credible and, in accordance with the test set out by this Court in Minister for Justice, Equality and Law Reform v. Rettinger [2010] IESC 45 decided to seek further information on this issue. She further decided to utilise the provisions of s.20 of the Act to this end, and so informed the parties. The Minister (as the Central Authority under the Act) was directed to request the information.

3. Anticipating that this decision might lead to the admission of disputed material by way of informal evidence, the applicant issued plenary proceedings in which he sought declarations to the effect that what he termed the “inquisitorial and sui generis procedure imposed by the European Arrest Warrant Acts 2003 and 2012” was unconstitutional and repugnant to the EU Charter on Fundamental Rights. Murphy J. refused to deal with these new proceedings within the context of the statutory EAW procedure.

4. The initial response from the Northern Ireland Prison Service had been considered unsatisfactory by the trial judge (see her preliminary ruling at [2014] IEHC 702). However, she accepted the further information that was received in letters from the Prison Service and from the Police Service of Northern Ireland. She rejected a submission made on behalf of the applicant that the material was inadmissible in that form.

5. Final judgment was delivered by Murphy J. on the 2nd September, 2014, (Minister for Justice and Equality v. Lanigan [2015] IEHC 677). She referred to the fact that the applicant had challenged the admissibility of the material obtained under the s.20 procedure and recapped the grounds for her ruling on the issue. Essentially, she had relied upon the judgment of this court in Minister for Justice, Equality and Law Reform v. Sliczynski [2008] IESC 73 as authority for the proposition that she was entitled to have full regard to information supplied by the issuing State.

6. An order for surrender of the applicant was therefore made. The trial judge declined an application by the applicant to postpone the making of the order until the plenary proceedings were determined. A certificate for leave to appeal, as required under the Act, was refused. An uncertified appeal was filed in the Court of Appeal on the 11th September, 2015.

7. On the 16th March, 2016, the Court of Appeal acceded to an application by the Minister to strike out the uncertified appeal (see Minister for Justice and Equality v. Lanigan [2016] IECA 91). It did so on the basis that, in the absence of any challenge to the validity of the Act or any provision thereof, that court had no jurisdiction to entertain an uncertified appeal.

8. An application for leave to appeal from the decision of the Court of Appeal to this Court was refused ([2016] IESCDET 85, made on the 27th June, 2016). There were three arguments grounding that application for leave. The first was that the Act had been interpreted in such a manner as to render it unconstitutional. The second was that the applicant had issued proceedings before the order of surrender was made, contending that the process leading to that order contravened the Constitution and/or the EU Charter, and that this issue should have been referred to the Court of Justice of the European Union for a preliminary ruling. The third was that the decision of this Court in Minister for Justice, Equality and Law Reform v. Sliczynski [2008] IESC 73 was being relied upon in the High Court to support “several far-fetched propositions of law”.

9. In refusing leave to appeal, this Court ruled that the procedural history of the case was such that no point of law of general public importance was involved in the decision of the Court of Appeal to strike out the appeal. It also noted the continuing existence of the plenary proceedings, in which the issues sought to be raised by the applicant could be pursued.

The applications under Article 40.4

10. Having made the order for the applicant’s surrender on the 4th September, 2015, Murphy J. remanded him in custody. This led to the first application under Article 40.4.4, which was dealt with by Barrett J. The applicant contended that the order made by Murphy J. was fundamentally flawed, because the process leading to it was a sui generis form of procedure that permitted a departure from fundamental norms of fair procedure and also unfairly restricted the right of appeal. In a judgment delivered on the 17th September, 2015, Barrett J. ruled that the detention of the applicant was in accordance with law (see Lanigan v. Governor of Cloverhill [2015] IEHC 574). The applicant lodged an appeal against that decision.

11. Under s.16(6)(b) of the Act surrender cannot take place while an Article 40.4 application is in being. Because the appeal had been lodged against the decision of Barrett J., the Minister applied on the 25th September, 2015, to the High Court (Butler J.), on notice to the applicant, for stays both on the order of surrender and on that part of the order of Murphy J. directing that if surrender was not effected within the period specified in s.16(3)A of the Act the applicant should be brought back before the court. The applicant objected to this, arguing that no stay was necessary given the provisions of s.16(6), and that to grant it would be to postpone his surrender to an indefinite date and remove the obligation on the Minister to bring him back before the court. Butler J. granted the stays.

12. The order of Butler J. was not appealed. Instead, the applicant made a second application for an order of release under Article 40.4, based on an argument that the stay had had the effect of removing his statutory right to be brought back before the High Court. This application was moved on the 15th October, 2015. Noonan J. refused to direct a fresh inquiry, ruling that the application amounted to a collateral attack on the orders made by Butler J. and that he had no jurisdiction to deal with it. This decision was appealed.

13. The Court of Appeal dealt with the appeals against the orders of Barrett J. and Noonan J. together, in a judgment delivered on the 19th October, 2016, (see [2016] IECA 293). The ruling of Barrett J. was upheld but the application that had been dismissed by Noonan J. was remitted to the High Court for an inquiry into the lawfulness of the applicant’s detention. It was heard by Humphreys J. who dismissed it on the 16th December, 2016.

No. 1 - AFL 141/2016 Lanigan v. Governor of Cloverhill Prison

14. This application is for leave to appeal against the decision of the Court of Appeal of the 19th October, 2016, dealing with the first two applications under Article 40.4. What is currently before the Court is an amended application (permission having been given for an amendment), the original having been filed on the 1st December, 2016. That was out of time, but no reference has been made to that fact by the applicant and no extension of time has been sought. The respondent objects to any such extension

15. As the Court gave permission for the amendment, the application will be treated as if an extension was granted.

16. As already noted, the Court of Appeal had remitted one of the applications for consideration by the High Court but upheld the ruling of Barrett J. that the applicant was in lawful custody at the time of his decision. The application therefore relates to the part of the judgment upholding Barrett J.

Relevant facts and issues

17. The applicant filed written submissions in the High Court on the morning of hearing by Barrett J., (the 14th September, 2015) in which it was stated that the order sought at that stage was an order directing the plenary proceedings to be heard and determined with reasonable expedition, with the release of the applicant on bail and an adjournment of the Article 40.4 application until the plenary action was determined. It is apparent that there was then a hearing which took a full day. Barrett J. then reserved his decision and gave it three days later. He found the application to be essentially flawed, in that all of the arguments raised by the applicant constituted a collateral challenge to, and an impermissible parallel attack upon, the EAW proceedings. Referring to the decision of this Court in F.X. v. Clinical Director of the Central Mental Hospital [2014] IESC 1, he found that there was no “fundamental denial of justice”, or “fundamental flaw”, in those proceedings such as could justify Article 40.4 relief. The issues as he saw them, and his conclusions thereon, were as follows.

(i) The applicant argued that he had adduced credible and unchallenged evidence that his life would be at risk in the event of surrender. His complaint was that Murphy J. had decided to seek the information without hearing him on the issue, and had subsequently ruled against him on the basis of the unsworn information, upon which there could be no cross-examination, contained in letters from the police and prison services of Northern Ireland.

(ii) The contention was made that the provisions of the Act allowing the court to act on information such as that obtained in this case were unconstitutional and/or contrary to EU law. The inquisitorial and sui generis nature of proceedings under the Act entailed the abandonment of fundamental norms of fair procedures.

(iii) The applicant challenged the constitutionality of the requirement to obtain a certificate from the trial judge for leave to appeal, by reference to the principle nemo iudex in causa sua.

(iv) Part of the applicant’s complaint was that Murphy J., while she referred one matter to the Court of Justice, did not refer certain other questions. He therefore submitted that Barrett J. should now refer these questions.

22. Barrett J. expressed the view that all of the above issues, with the possible exception of the Article 267 issue, were matters that could or should have been raised by the applicant before Murphy J. Insofar as he had done so, and the issues had been ruled upon, he was estopped from raising them now. Insofar as he had not, his attempt to do so now was a contravention of the rule in Henderson v. Henderson (1843) 3 Hare 100, 67 ER 313. There was no fundamental denial of justice or fundamental flaw arising that would justify departure from these rules.

23. On appeal the applicant complained that in so finding Barrett J. had gone beyond the requirements of an Article 40.4 hearing and had trespassed upon the plenary proceedings. He was concerned that the State might now adopt the position that the matters to be raised in the latter proceedings were res judicata.

24. The Court of Appeal said that it was not necessary to address this issue. It was a matter to be debated when the plenary proceedings came on for hearing. Having regard to the fact that the hearing before Barrett J. had taken a full day, and that counsel for the applicant had been permitted to expand upon his grounds against the objections of the State, it seemed likely that the constitutional arguments subtending the plenary proceedings had been advanced. The Court considered that this might have been the reason why Barrett J. had commented on the merits of those arguments. The context was one where there was nothing on the face of the warrant that would render the detention unlawful. The applicant’s claim was that there were outstanding constitutional claims to be determined before surrender should take place. In those circumstances it would be “strange” if the merits of the constitutional claims were not debated and urged upon the court.

25. The Court declined to refer any issue to the Court of Justice of the European Union.

26. It was stated that a court dealing with an application under Article 40.4 was constrained to determine the lawfulness of the person’s detention, and that the procedure could not be used simply to delay the process of surrender on an EAW while other proceedings were brought to finality. The overall view taken by the Court of Appeal can be seen in its observation that Article 40.4 was, in this case, being used “as a life raft” to assist a collateral purpose.

The application for leave

27. In the amended application for leave the applicant asserts that on the morning of the Article 40.4 hearing in the High Court (on the 14th September, 2015) the only application made on his behalf was for an adjournment so that the matter could be tried in conjunction with the plenary proceedings making the same case. He says that that application was not refused. It is asserted that Barrett J. went on to treat it as the hearing of the case, without having said that he would do so. The judgment then rejected all the main claims intended to be advanced in the plenary proceedings.

28. According to the applicant, it was submitted in the Court of Appeal that in those circumstances the trial of the action (i.e. the Article 40.4 application) never took place. Other than the applicant’s affidavit sworn for the purpose of the adjournment application, no evidence was adduced, there were no written submissions and no relevant authorities were handed in. It is said that uncontradicted evidence to this effect was produced by way of affidavit in a subsequent Article 40.4 application in December, 2016 (see below – AFL 15/2017).

29. In advancing reasons why leave should be granted, it is argued that the applicant was subjected to a process that puts his life at risk and that he was not afforded an opportunity to challenge the legality of that process by way of Article 40.4. It is complained that the Court of Appeal did not afford him an opportunity to argue that he had been precluded from relying on Article 40.4, or an opportunity to make a submission as to why a reference to the CJEU was warranted.

30. The matters of law of general public importance said to arise in respect of the case are to be found in the notice of application, which is available on this website.

No. 2 - AFL 14/2017 – Lanigan v. Central Authority and others

31. This is a “leapfrog” application relating to the order of White J. (judgment at [2016] IEHC 682; order perfected on the 9th December, 2016) dismissing the plenary proceedings referred to above. The order was made on foot of a motion by the defendants claiming that the proceedings had no possibility of success.

32. For the purpose of contesting the motion the applicant sought inter alia to amend his pleadings to include some new material that had not been before Murphy J. and also to include a large number of new complaints about aspects of the hearing conducted by her. In particular he wished to amend the statement of claim by the inclusion of references to a report, published in November 2015, on conditions and safety in Maghaberry Prison. This application was refused, on the basis that there had been no evidence relating to it before the High Court in the EAW proceedings.

33. The issues dealt with by White J. were as follows.

(i) A challenge to the constitutionality of s.16(11) (which provides that an appeal against a decision of the High Court under the Act may be taken only if the High Court judge certifies that it involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken).

(ii) Complaints about rulings made in the hearing before Murphy J.

(iii) The constitutionality of s.20 of the Act.

37. The applicant did not seek a declaration that s.20 was unconstitutional but complained that the inquisitorial or sui generis nature of the hearing prevented him from testing the veracity of the information contained in the letters put before the High Court in that he could not cross-examine or seek discovery.

38. White J. held that the classification of procedures under the Act as sui generis was self-evident. The decision of the Supreme Court in Minister for Justice, Equality and Law Reform v. Sliczynski [2008] IESC 73, while it did not directly address the question of the constitutionality of s.20, made it clear that discovery and cross-examination of officials from the requesting authority were not envisaged as appropriate procedures. The information was admissible, but it was up to the High Court judge to decide what weight to attach to it and it was open to the respondent in the proceedings to call contrary evidence.

39. In making his decision on the s.20 aspect, the trial judge noted that he was obliged, in determining a “bound to fail” strike-out application, to give what he described as “as fair a wind as possible” and to let the action proceed if there was a possibility of success. He considered that there was not. He dismissed the action and awarded costs against the applicant.

The application for leave

40. The grounds urged by the applicant are set out in the notice of application for leave, which can be found on this website.

41. As is clear from the terms of Article 34.5.4° of the Constitution, the threshold for the granting a “leapfrog” appeal is higher than that in respect of an appeal to this Court from the Court of Appeal. Leave to bring a “leapfrog” appeal requires the applicant to establish that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interests of justice necessary that there be an appeal to this Court. In addition, for a leapfrog appeal, it must also be established that there are grounds justifying an appeal directly to this Court and it must be shown that there are “exceptional circumstances” warranting such a direct appeal to the Supreme Court rather than through the normal appellate process.

No. 3 - AFL 15/2017 – Lanigan v. Governor of Cloverhill Prison

42. This is a “leapfrog” application for leave to appeal to this Court against the decision of Humphreys J. (ex tempore ruling on the 16th December, 2016; written judgment delivered on the 23rd January, 2017, - see [2017] IEHC 23) dismissing the Article 40. 4 application that had been remitted by the Court of Appeal.

43. The original issue in the case had been the effect of the stay granted by Butler J. on the request of the Minister pending the hearing of the appeal against the judgment of Barrett J. On this issue the argument was that the procedure set out in the Act had the effect of ousting the inherent jurisdiction of the High Court to grant a stay. However, Humphreys J. considered that the inherently flexible nature of an Article 40.4 inquiry was such that it was appropriate to permit the applicant to raise a number of other matters.

44. It appears that one such matter was a dispute as to precisely what had happened during the hearing before Barrett J. On this aspect, Humphreys J. offered the applicant access to the DAR for the relevant date but that was not taken up.

45. The applicant argued that he was entitled to revisit earlier determinations on the lawfulness of his custody, on the basis that res judicata and the rule in Henderson v. Henderson did not apply in proceedings of this kind. It was also submitted that Article 40.4 had to be interpreted consistently with EU law and therefore in accordance with the principles of the UN General Assembly Working Group on Arbitrary Detention report on Basic Principles and Guidelines on Remedies and Procedures concerning the right of a person deprived of his or her liberty to apply to a court – this meant that the court had jurisdiction to revisit earlier determinations.

46. On the basis of these arguments it was submitted to Humphreys J. that the applicant was entitled to revisit previous rulings. He approached the issues on the following basis.

(i) The refusal of Murphy J. to postpone the making of the order for surrender pending the hearing of the plenary action, as well as other errors alleged to have been made by her.

(ii) The alleged making by Barrett J. of a decision on the merits of the Article 40.4 application before him where the only application was for an adjournment.

(iii) The errors made by White J. in misunderstanding the applicant’s case and wrongly concluding that it was bound to fail.

(iv) The errors allegedly made by the Court of Appeal.

(v) New evidence relating to the inspection of Maghaberry prison in November 2015.

(vi) The stay granted by Butler J.

(vii) Finally, it was argued that the delays that had occurred in dealing with the case were such as to render the applicant’s detention unlawful by virtue of blameworthy detention per se.

54. Humphreys J. noted that the applicant’s detention was authorised by the committal warrant issued by Murphy J. in the EAW proceedings. Since he was detained under order of the High Court, he could be released pursuant to Article 40.4 only if he demonstrated an absence of jurisdiction, a fundamental denial of justice or a fundamental flaw.

The application for leave

55. The notice of application for leave is available on this website.

Decision

56. It has been necessary to set out the history of the case in far greater detail than would normally be desirable in a determination, because the labyrinthine nature of the litigation is not sufficiently summarised in the application. Having carried out that exercise, however, it is at least clear that the entire history has its root in the decision of Murphy J. to request, receive and act upon information obtained pursuant to the power conferred by s.20 of the Act. No other point sought to be raised in these applications could in fact benefit the applicant, since this was the matter that went to the heart of the decision to order his surrender and to the heart of his challenge to the result. The applications for his release under Article 40.4 could only have succeeded if he had demonstrated a fundamental flaw or denial of justice in reaching that decision. Similarly, the challenge to the requirement for a certificate for leave to appeal could be of relevance only if he could show a possibility of success on an appeal on that point.

57. In acting as she did, Murphy J. was clearly seeking to vindicate the rights of the applicant and was proceeding in accordance with the principles discussed by this Court in Rettinger. She relied upon the procedure set out in s.20 of the Act (as amended) and upon the analysis of that section by this Court in Sliczynski. The applicant does not assert that the decision in that case was wrong, but only says that it is being used to justify “far-fetched” propositions of law. No challenge has been mounted to the constitutionality of the section, but only to its interpretation.

58. Having regard to the analysis of the judgment in Sliczynski , it is entirely clear that this Court has considered and endorsed as lawful the use of the s.20 procedure as part of the sui generis inquisitorial EAW process. Further, it is clear that as part of that process information may be received otherwise than by way of sworn affidavit. The concern is for the provenance and authenticity of the information and for its relevance to whatever question is in issue. As Murphy J. pointed out, it is not intended that there should be cross-examination on its accuracy. There is nothing in the application to support a contention that Murphy J. went beyond the parameters of either the statute or the binding precedent.

59. Other matters complained of relate, for the most part, to case management decisions of the judges dealing with the Article 40.4 applications. These do not raise points of law of general public importance. In the circumstances of the case the applicant has not shown that leave is necessary in the interests of justice.

60. The complaint that his application under Article 40.4 was dealt with by Barrett J. when he only wanted an adjournment on bail pending determination of the plenary proceedings is manifestly ill-founded. Article 40.4 is not to be used simply as a convenient mechanism for getting bail. It imposes a duty on the High Court to carry out the constitutional inquiry. In any event, this matter was the subject of an appeal to the Court of Appeal and there is no ground for a further appeal.

61. The applicant has not shown any arguable grounds tending to show that a “leapfrog” appeal would be necessary in relation to the dismissal of the plenary proceedings by White J.

62. In these circumstances leave to appeal to this court will be refused in all three applications.

And it is hereby so ordered accordingly.