Supporting Documents:

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF THE CONSTITUTION

BETWEEN

Result: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal.

Reasons Given:

1. This an application for leave to appeal to this Court against the decision of the Court of Appeal delivered on the 25th November, 2016, (see Myerscough v. The Governor of Arbour Hill Prison [2016] IECA 357). The Court dismissed the applicant’s appeal against the dismissal in the High Court of his application for an order directing his release pursuant to Article 40.4 of the Constitution.

2. The background to the Article 40.4 application is as follows.

3. On the 29th February, 2016, the High Court (Donnelly J.) made an order for the applicant’s detention and surrender to the United Kingdom on foot of a European Arrest Warrant. As required by the terms of the European Arrest Warrant Act 2003 as amended, he was informed of his right, pending his surrender, to seek his release under Article 40.4.

4. By virtue of s.16(11) of the Act as amended an appeal against the decision of the High Court is permitted only if the trial judge grants a certificate. Donnelly J. refused an application for a certificate on the 11th March, 2016. The applicant then sought an Article 40.4 inquiry by application made on the 21st March, 2016. The stated grounds were that s.16(11) was repugnant to the Constitution, as the applicant had been denied a right of appeal.

5. The Article 40.4 application was initially adjourned to the following day, the 22nd March, 2016, for the respondent and notice parties to be put on notice. Directions were then given as to the exchange of affidavits and submissions and the matter was further adjourned.

6. The Act sets out time limits within which surrender must take place. If the time limit is breached the matter must be brought back to the Court that made the order. Separately, it provides that a person may not be surrendered while an application for an order under Article 40.4 is in being. Because of these considerations the respondent applied on the 23rd March, 2016, (during vacation) to the duty judge of the High Court (Twomey J.) for a stay on the order of surrender and on the ancillary orders required by the Act.

7. The applicant’s lawyers were undoubtedly given short notice of this application, and it is accepted that his counsel arrived in court after Twomey J. had risen to consider the application that had already been made by counsel for the respondent. However, according to the affidavit of a solicitor from the office of the Chief State Solicitor, counsel for the respondent (a) informed the judge that she had spoken to junior counsel for the applicant and that he was objecting, and (b) Twomey J. sat again to hear counsel when he arrived. He had then canvassed with counsel from both sides the issue of the duration of the proposed stay, and had concluded that it was not possible to ascertain the date upon which the Article 40.4 proceedings would be determined. The solicitor specifically averred that the form of the order was discussed with counsel including the applicant’s counsel. Ultimately, the order as drawn up stays the orders made by Donnelly J. “pending further Order herein”.

8. The Article 40.4 inquiry was conducted by McDermott J.

9. McDermott J. delivered a written judgment on the 14th June, 2016, (see Myerscough v. The Governor of Arbour Hill Prison [2016] IEHC 333), in which he rejected all arguments made by the applicant. On the facts of the case, he considered that the applicant had not shown that any issue raised or argued before the trial judge gave rise to any arguable or stateable ground of appeal, much less one that would reach the statutory threshold to warrant a certificate of leave. In those circumstances he was satisfied that no injustice arose, and that he should follow the decision of McKechnie J. in O’Sullivan v. Irish Prison Service [2010] 4 I.R. 562 (where a constitutional challenge to s.16(11) was rejected).

10. On the issue concerning the stay, the judgment records the finding that very little notice had been given of the proposed application before Twomey J., but that both sides had been heard and that the application had been urgent in the circumstances. As a matter of law a person who made an application under Article 40.4 should not be surrendered pending determination of that application. The order made by Twomey J. was an exercise of the jurisdiction of the High Court to ensure that the applicant’s position was secured and that no action could be taken on foot of the order of surrender pending the determination of the Article 40.4 application.

11. No appeal was taken in relation to this decision. The order of McDermott J. was perfected on the 24th June, 2016. On that date the applicant sought a fresh Article 40.4 inquiry based on the fact that no step had been taken by the Minister to lift the stay granted by Twomey J. The applicant argued that the order made by Twomey J. was in the Article 40.4 proceedings and that the stay had expired with the delivery by McDermott J. of his judgment on the 14th June, 2016. On that basis, it was argued that the statutory time limit for surrender had expired.

12. The certificate of the respondent produced in this second inquiry stated that the applicant was held in custody pursuant to a High Court committal warrant of the 29th February, 2016, (the order made by Donnelly J.) and the High Court orders of the 23rd March, 2016, (the order containing the stays) and the 14th June, 2016, (the order of McDermott J. as perfected on the 24th June 2016).

13. In an ex tempore decision on the 27th June, 2016, McDermott J. held that the applicant remained in lawful custody. The order made by Twomey J. was still extant, since no application had been made to remove it and it could not be removed by some “self-executing event”. As a matter of logic, the plain meaning of the words “pending further order herein” and the sequence of the orders meant that the stay was in respect of the order of Donnelly J. in the EAW proceedings. It was also observed by McDermott J. that the State should exercise caution in relation to bringing an application to lift such a stay, having regard to the right of the applicant to appeal against his decision in the first Article 40.4 application. If no appeal was lodged against the dismissal of that application within the time permitted, the Minister should bring the matter before the European Arrest Warrant court as soon as reasonably possible to remove the stay so that the surrender could be executed.

14. This second decision of McDermott J. is the subject of the judgment of the Court of Appeal now sought to be appealed to this Court. In the Court of Appeal the applicant submitted that McDermott J. had erred in:

i. granting him an adjournment of only an hour to fully consider the certificate of the respondent, instead of at least one day;

ii. interpreting the order of Twomey J. in the way described above;

iii. determining, notwithstanding the passage of time and the expiry of the statutory time limits, that the applicant was lawfully detained; and

iv. such other grounds as might be urged.

16. At the hearing of the appeal counsel for the applicant made submissions on the substantive issues and urged that his client should be released immediately. In the alternative he sought an adjournment for the purpose, apparently, of producing a transcript of the proceedings before Twomey J. He submitted that if the Court had any serious doubt concerning an issue of EU law it should seek a preliminary ruling from the Court of Justice of the European Union pursuant to Article 267 of the TFEU.

17. Counsel also sought an order for costs in respect of the trial at first instance and a recommendation under the Legal Aid (Custody Issues) Scheme in respect of the appeal.

18. The Court of Appeal considered that at the heart of the appeal was the submission on behalf of the applicant that the order of Twomey J. was ambiguous and that he was entitled to the benefit of that ambiguity. The recitals in the order referred to an application for stays “pending the final determination of the related proceedings” (i.e. the first Article 40.4 proceedings) “or further Order herein in the meantime”. Further on, the document referred to stays being granted “pending further Order herein”. The contention was that it was unclear whether the stays were to last only until the final determination of the Article 40.4 inquiry, or until further order.

19. The respondent relied upon the affidavit sworn by the solicitor who had been present at the stay application, which had not been contradicted by or on behalf of the applicant. It was argued that in the circumstances described there was no ambiguity. The judgment records that Counsel for the applicant was unwilling to say explicitly that the affidavit was disputed, but said that a transcript of the DAR would put the matter beyond doubt.

20. It was submitted on behalf of the applicant that his legal representatives had not seen the order of Twomey J. until the morning of the 27th June, 2016, and that in those circumstances McDermott J. should have acceded to an application to adjourn the Article 40.4 hearing so that the DAR record of the hearing before Twomey J. could have been obtained. Instead McDermott J. had put the matter back for only an hour. This was unfair and had prejudiced the applicant. The Court of Appeal should therefore adjourn the hearing of the appeal so that the transcript could be obtained at that stage.

21. It was further submitted that the Court of Appeal should seek a preliminary ruling from the Court of Justice of the European Union as to the legality of the stay, and as to whether or not the process to date had been “Charter compliant”.

22. The Court of Appeal accepted the contention of the respondent that the premise upon which the second Article 40.4 inquiry had been ordered – that the order of Twomey J. had expired – was incorrect. While counsel for the applicant had said that he had not seen the order until the 27th June, 2016, it had been relied upon by him in the first Article 40.4 application. There had been abundant time to bespeak a copy of the order, which had been made on the 23rd March, 2016, and it was the responsibility of the applicant’s advisers to do so. There had been no obligation on McDermott J. to adjourn for the DAR record in circumstances where no suggestion had been made to him that there was an error on the face of the order. The order itself did not require, for the purpose of consideration by counsel, any longer adjournment than that afforded by McDermott J.

23. The Court of Appeal was satisfied that the stay order was lawfully granted in order to comply with domestic law. It was also satisfied that there was no material controversy in the case concerning an issue of EU law.

24. The judgment of the Court records that the issue of costs in respect of the High Court inquiry and the application for legal aid for the appeal would be dealt with separately.

The application for leave

25. The notice of application for leave to appeal to this Court is available on this website.

26. The applicant complains that the judgment of the Court of Appeal does not record the fact that the applicant was not given proper notice of the stay application; or that McDermott J. would only allow an hour for consideration of the Governor’s certificate; or that the Court of Appeal had refused, at a directions hearing on the 7th October, 2016, to authorise the DAR to be taken up, saying that it might revisit the matter; or that the Court of Appeal, on the 27th October, 2016, fixed the hearing of the appeal for the 2nd November, 2016, despite the protest of counsel for the applicant that this was insufficient time.

27. It should be apparent from the summary above that the first two of these contentions are simply incorrect.

28. The points of law of general public importance are said to be that the Article 40.4 hearing was “forced on” by the State and McDermott J. granted only one hour for the purpose of considering the Governor’s certificate; that a request to the Court of Appeal for an Article 267 reference on the lawfulness of this was not addressed in the judgment; that if the interpretation of the order of Twomey J. is correct then issues of EU law arise; and that “additional requirements”, not envisaged by the Legal Aid (Custody Issues) Scheme were imposed on the applicant.

29. Neither the order of the Court in relation to legal aid nor an account of what led to the decision has been furnished by the applicant.

The respondent’s notice

30. The respondent’s notice is also available on this website. In brief, the respondent points out inter alia that the question of the validity of the stay order was fully debated in the first Article 40.4 hearing, and that the decision thereon was not appealed. The only issue in the second application was whether or not the stay had expired.

31. The respondent says that the applicant was refused the benefit of the Legal Aid (Custody Issues) Scheme because he filed two contradictory statements of means (one in the EAW proceedings and one in the appeal under consideration) and did not satisfy the Court of Appeal that he was unable to obtain legal advice without the scheme.

Decision

32. The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having any precedential value in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

33. The key issue in this case is, obviously, the lawfulness of the stay order made by Twomey J. That matter was determined in the first Article 40.4 application, which was the proper time to raise any issue as to its compatibility with EU law and in particular the Framework Decision. No appeal was taken in those proceedings and it is not before this Court for consideration.

34. The issue raised in the second application concerned the meaning of the order and whether or not it had expired. That is not an issue that gives rise to a point of law of general public importance. The applicant has had one appeal against the order of the High Court, and has not met the constitutional criteria applicable to a further appeal to this Court.

35. The arguments concerning the procedures adopted by the respective presiding judges, and the question whether adjournments should have been granted are not, in principle, matters that can give rise to an appeal save in the most exceptional circumstances. On the facts of this case there was no unfairness in either the manner in which those decisions were made or in the actual decisions.

36. In the circumstances leave to appeal is refused.

And it is hereby so ordered accordingly.