THE SUPREME COURTTHE MINISTER FOR JUSTICE, EQUALITY and LAW REFORM
Applicant/Appellant
v.
MICHAEL MARTIN CONNOLLY
Respondent
JUDGMENT of Mr. Justice Hardiman delivered on the 1st day of May, 2014.
1. This is the appeal of the Minister, from the judgment and order of the High Court (Edwards J.) made the 19th day of December, 2012 whereby Mr. Connolly’s delivery to Spain on foot of a European Arrest Warrant, was refused.
2. It is undisputed that such an appeal requires a certificate from the High Court, by reason of the statutory provisions considered below. On the hearing of this appeal the main point urged on behalf of Mr. Connolly, was that the European Arrest Warrant issued by the Spanish judicial authorities was deficient in that it did not contain a clear or satisfactory statement of the offence or offences for which it was intended to put him on trial in Spain. Indeed, it was said that the Arrest Warrant did not even make it clear whether there was one or more than one such offence.
3. The principal response of the Minister to this argument was that the Court had no power to entertain it at all because it was not the point certified by the High Court as being a point of law of exceptional public importance. This, then, is the first point that arises for determination.
4. The appropriate starting point in approaching this question is Article 34.4.3 of the Constitution. This provides:
“The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court”.
5. It also seems appropriate to consider the judgment of Walsh J. in The People (AG) v. Conmey [1975] IR 341:
“I wish to express my view that any statutory provision which had as its object the excepting of some decisions of the High Court from the appellate jurisdiction of this Court or any particular provision seeking to confine the scope of such appeals within particular limits, would of necessity have to be clear and unambiguous. The appellate jurisdiction of this Court from decisions of the High Court flows directly from the Constitution and any diminution of the jurisdiction could be a matter of such great importance that it would have to be shown to fall clearly within the provisions of the Constitution and within the limitations imposed by the Constitution upon any such legislative action.”
6. This passage has been approved several times since 1975.
Statutory provisions.
7. Section 16(12) of the European Arrest Warrant Act, 2003 provided as follows:
“An appeal against an order under this Section or a decision not to make such an order may be brought in the Supreme Court on a point of law only”.
8. Section 12(f) of the Criminal Justice (Miscellaneous Provisions) Act, 2009 provides for the substitution, in place of the words italicised above"on a point of law only” by the words:
“if, and only if, the High Court certifies that the order or decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court”.
9. Accordingly, s.16(12) of the 2003 Act may now be read as follows:
“An appeal against an order under this Section or a decision not to make such an order may be brought in the Supreme Court if, and only if, the High Court certifies that the order or decisions involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court”.
10. This Section does not appear to have been further amended. However, s.16 generally has been consolidated and slightly altered by s.10 of the European Arrest Warrant (Application to Third Countries and Amendment) Act 2012. In this process the former s.16 (12) became s.16(11).
Effect of the foregoing.
11. In the present case Edwards J. certified that his order involved a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court. This order was made on the 19th December, 2012. It was a separate order to that of the same date refusing the Minister’s application. Although only one point of law was identified in that order both the statute and the second part of the order referred to “an appeal” without limitation of scope.
12. The structure of s.16(12), as amended, is to provide that “an appeal” against an order for delivery may be “brought in to the Supreme Court” on certain conditions, introduced in the statute by the words “if, and only if”. The conditions set out in the (new) provision so introduced have, it is agreed, been met. The decision of the High Court has been certified to “involve” a point of law of exceptional public importance and it has been further certified that it is desirable in the public interest that “an appeal” be taken to the Supreme Court.
13. It therefore appears to me that, on a literal reading of the statute, “an appeal” (itself unqualified and unrestricted) may be “brought in the Supreme Court” if the conditions introduced by the phrase “if and only if” are met. These conditions have been met.
14. In this case, indeed, those preconditions have been met in quite an unusual way. It was the Minister, and not Mr. Connolly who appealed the case to this Court. It was, accordingly, the Minister, and not Mr. Connolly, who required the certification of the High Court as set out in the statutory provisions quoted above.
15. It appears to me that, on the ordinary principles governing appeals to this Court there is no obligation on a respondent, a person served with a Notice of Appeal by the other party to take any step except where he intends to contend that the judgment or order appealed from should be varied. There is, for example, no obligation on a respondent to give notice to the appellant if he intends to contend that the judgment or order should be upheld for reasons other than those relied on by the High Court judge. This emerged plainly in the judgment of this Court in A.A. v. The Medical Council and The Attorney General [2003] 4 I.R. 302. In that case, as in this, the ground relied upon by the respondent had been fully argued in the High Court. In A.A., however, the learned trial judge had not made a decision on the point in question, basing his decision instead on other grounds. In the present case, the ground of alleged vagueness and lack of specificity was decided in the High Court, in favour of the Minister.
16. In A.A., it was held that:
“the Court has jurisdiction to consider all the issues defined by the pleadings which were the subject of evidence or submissions in the High Court, and the Court is not automatically precluded in every case from considering such an issue simply because it has not been the subject of a determination by the High Court judge”.
17. In the same judgment, that of Chief Justice Keane, reference is made to the obligations of an appellant to this Court and to the absence of corresponding obligations on the respondent. He referred to Order 58 Rule 10:
“It shall not, under any circumstances, be necessary for a person served with notice of appeal to give notice by way of cross-appeal”.
18. Chief Justice Keane continued:
“The effect of this rule is reasonably clear. An appellant must, in every case, serve a notice of appeal stating the grounds of the appeal and the relief or the order (if any) in lieu of the judgment or order appealed from sought by the appellant. Rule 10 makes it plain that there is no analogous or corresponding obligation on the respondent”. (Emphasis supplied)
19. In the present case, it is very clear that the point in respect to non-compliance with s.11 of the Act, and the vagueness and non-specificity of the Order, was both pleaded and argued. At para. 1 of the “Points of Objection” of the 21st June, 2011 the respondent said;
“The European Arrest Warrant fails to specify with a sufficient degree of particularity the criminal acts or omissions alleged against the respondent in respect of which his surrender is sought. Whilst the warrant sets out with a great amount of detail, this largely concerns other suspected persons. It is clear that the warrant purports to allege an offence in rem rather than one in personam. As such the warrant fails to comply with the provisions of s.11 of the European Arrest Warrant Act 2003 and is defective”.
20. It is further pleaded at para. 2 that:
“By reason of the matters referred to, and pleaded at (1) above the respondent, if surrendered, will not be able to avail of the rule of specialty by reason of the unduly broad and vague nature of the allegation against him”.
21. In the additional points of objection delivered on 21 May 2012 it is pleaded at para. 3 that:
“By ticking two boxes, the issuing State is wrongly purporting to categorise two aggravating circumstances in a penalty provision as two specific offences under Spanish law. This is so notwithstanding the fact that it is clear from the warrant and the further information supplied that the membership of the organisation or association and the amount of the drugs are only aggravating factors allowing for the imposition of a greater sentence in the event of conviction, and that the offence itself is one concerning endangerment of public health”.
22. At para. 5 of the same document the respondent contended:
“The offence under investigation is one concerning endangerment to public health in aggravating (sic) circumstances”.
23. In my view, although the pleading could be more coherent, these paragraphs all raised the question on the specifying of the offences as required by s.11 of the European Arrest Warrants Act 2003. There, it is specifically provided:
“Subject to s.2A, a European Arrest Warrant shall specify… the offence to which the European Arrest Warrant relates”.
24. For that reason, I consider that the applicant/respondent has relied sufficiently on the unsatisfactory specification of the offence or offences for which his delivery is sought, and the consequent breach of the requirements of s.11 of the 2003 Act.
25. In my view, the case for this interpretation is still stronger if the statutory wording is considered in light of the constitutional provision, and the citation from Walsh J. which are both set out above.
26. By reason of Article 34.4.3, the default position is that this Court has “appellate jurisdiction from all decisions of the High Court”.
27. Accordingly, no statutory provision is necessary to confirm or confer such jurisdiction in a particular case: any exception to the generality of the appellate jurisdiction must be “prescribed by law”.
28. Walsh J. emphasises that the appellate jurisdiction itself “flows directly from the Constitution” so that any statutory provision reducing the appellate jurisdiction of the Court “would of necessity have to be clear and unambiguous”. Anyone relying on such a provision must also face the obstacle that:
“it would have to be shown to fall clearly within the provisions of the Constitution and within the limitations imposed by the Constitution upon any such legislative action”.
29. The topic of European Arrest Warrants has what is in my opinion a very good text book devoted to it, Farrell and Hanrahan The European Arrest Warrant in Ireland (Clarus Press, 2011). The following passages seem relevant on the matters in issue here:
“Whilst the Act is silent as to the specific procedure to be followed in the event of an appeal being certified by the High Court, it would seem reasonable to assume that the practice which has, heretofore, applied in relation to similar appeals from the Court of Criminal Appeal to the Supreme Court pursuant to s 29 of the Courts of Justice Act 1924 will apply. Accordingly it would not seem necessary to set out the actual point of law in the certificate. Moreover the decision of the Supreme Court in People (Attorney General) v Giles [1947] IR 422 would seem to suggest that the appeal will not be restricted to the point certified but rather all issues raised before the High Court can legitimately be the subject of the Appeal”. (Farrell and Hanrahan, p.126)
30. In Talbot v. An Bord Pleanála and Ors. [2009] 1 IR 375, a somewhat analogous provision restricting an appeal to the Supreme Court was considered. This was s.50 (4)(f) of the Planning and Development Act 2000. It provided:
“The determination of the High Court of an application for leave to apply for judicial review, or of an application for judicial review, shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case, except with the leave of the High Court, which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and it is desirable in the public interest that an appeal be taken to the Supreme Court”.
31. In Talbot the High Court (Peart J.) had refused leave on the basis that, in his view, no benefit would result to the applicants from the order sought.
32. Fennelly J. (Finnegan J. concurring, Kearns J. dissenting) recalled in the first instance that s.14 of the Courts (Supplemental Provisions) Act, 1961 provided that the jurisdiction of the Supreme Court is to be “exercised so far as pleading, practice and procedure generally in the manner provided by Rules of Court”.
33. He referred to Order 58. Rule 8 of the Rules of the Superior Courts:
“The Supreme Court shall have all the powers and duties as to amendment and otherwise of the High Court… the Supreme Court shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been made and to make such further or other order as the case may require”.
34. Fennelly J. went on to hold, at para. 34:
“The right of appeal to this Court derives in the first instance from Article 34.4.3 of the Constitution. The provisions of s.50 of the Act, while limiting the right of appeal, cannot be interpreted so as to limit its effectiveness, once the necessary certificate is granted”. (Emphasis added)
35. He continued, at para. 35 in the report:
“I am satisfied that s.50, considered in the light of the Rules of Court, permits this Court either to grant leave itself in appropriate cases or to make an order remitting the entire matter to the High Court. Rule 8 gives the Court power ‘to make such further order or other order as the case may require.”
36. This broad construction of the powers of the Supreme Court on an appeal, which requires certification from the High Court, appears to be clearly stated in para. 34 and 35 of the Report in Talbot, quoted above. This seems to me entirely consistent with the conclusion I have arrived at, simply on an examination of the words of the European Arrest Warrant Act set out above at para. 5ff.
37. This broad approach was applied, at the suggestion of the State, in another European Arrest Warrant case, Minister for Justice Equality and Law Reform v. SMR [2008] 2 IR 242. The State’s position in that case, where it successfully sought to appeal the High Court’s findings of fact in an EAW case, seems radically at variance with its position in this case.
38. There, the delivery to the United Kingdom of an elderly man was unsuccessfully sought. The State appealed. The respondent had led evidence to the general effect that he was in a parlous state of health so that the trial judge (Peart J.) “found as a fact on the evidence before him that the respondent was 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”. (para. 16 of the Report)
39. Peart J. therefore performed a balancing exercise between the risk to the respondent’s health and the interests of the CPS to have the serious charges prosecuted and he found that the latter interest must yield to the respondent’s constitutional right to bodily integrity and to life itself.
40. The Minister appealed. On the hearing (but not in the Notice of Appeal) he sought to challenge the assessment of the facts summarised above. At the time it did so s.16(12) was still in its unamended state so that it provided that an appeal lay “on a point of law only”. Notwithstanding this, the Supreme Court allowed the Minister to appeal the learned High Court judge’s findings based on the various medical reports submitted. It appears to have been significant to the Supreme Court decision that all the medical evidence was on affidavit so that (see para. 15 of the Report) the Supreme Court was in as good a position as the High Court to assess the evidence.
41. The respondent pointed to the fact that the appeal was, by statute, to be “on a point of law only”. He also contended “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 applicant [that delivery to the U.K. might be resisted on the grounds of the state of health of the person sought], means that “the appeal cannot succeed. Further, the [Minister’s] Notice of Appeal does not challenge the finding of fact”.
42. Both the medical evidence and the applicable law is analysed over several pages and the Supreme Court found as follows, at para. 30:
“The evidence before the Court, and in particular the medical report of Dr. Peter Kearney, the respondent’s treating consultant, does not justify the 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 trial judge’s conclusion that the respondent is at a real risk of dying if placed in any situation of severe stress”.
43. It will thus be seen that, in the case just cited, once an appeal was found to lie, the fact that such appeal could only raise “a point of law only” did not prevent this Court, once seised of the appeal, from reversing the trial judge’s refusal to deliver the respondent out of the State on a ground which was manifestly and purely factual. This was whether the respondent was on risk of dying, as opposed to merely suffering a further acute coronary event [which] “might well prove catastrophic in further limiting heart muscle pump function”. Though this is clearly a technical matter, it is equally clearly not a “point of law”.
44. It appears to me that this resolution of the J.M.R. case can only have been possible on the basis that, however restricted the right to initiate an appeal might be, once it has been properly initiated so that the Supreme Court is seised of it, this Court can decide any issue, and make any order, which the High Court decided, or might have decided.
45. I therefore think that it is open to this Court in the present appeal to consider any point which arises, and not simply the particular point which was certified.
European Arrest Warrants.
46. As the learned trial judge found, s.11 of the European Arrest Warrants Act, 2003 (as amended) governs the form and content of the European Arrest Warrant. In that regard it reflects Article 8 of the Framework Decision. Subsection 11(1A) of the same Act, inserted by s.72 of the Criminal Justice (Terrorist Offences) Act, 2005 and later amended by s.7 of the Criminal Justice (Miscellaneous Provisions) Act 2009, provides:
“Subject to subsection (2A) a European Arrest Warrant shall specify –
The name and nationality of the person in respect of whom it is issued,
The name of the judicial authority that issued the European Arrest Warrant and it address of its principal office,
The telephone number, fax number and email address (if any) of that judicial authority,
The offence to which the European Arrest Warrant relates, including the nature and classification under the law of the issuing State of the offence concerned.
47. It is unnecessary for present purposes to set out the remainder of the subsection.
48. It is in my view absolutely essential that the offence or offences for which the person is wanted is specified. In Minister for Justice Equality and Law Reform v. Stafford [2009] IESC 83 (Supreme Court, unreported 17th December, 2009) Denham J. (as she then was) said:
“It is required that there be a description of the acts upon which the warrant is based. This is similar to the situation under the Extradition Act 1965 and indeed classically in extradition law. A description of the Act, or the Acts alleged, are the facts upon which the executing judicial authority may apply the law. By describing the acts the facts are before the Court and so a decision may be made as to whether there is, for example, “double criminality”.
49. The learned judge continued, in the same case:
“The fact that there is a precise description of the facts of the case is important, even though the issue of double criminality is not required to be considered. It is important that there be a good description of the facts. An arrested person is entitled to be informed of the reasons for his arrest and of any charge against in plain language which he can understand. Also, in view of the specialty rule, the facts upon which a warrant is based should be clearly stated. (Emphasis added)
50. This latter point was addressed in The Minister for Justice Equality and Law Reform v. Cahill [2012] IEHC 315.
51. Speaking of s.11 of the Act it was said:
“The objective is to enable the respondent to know precisely for what it is that his surrender is sought. A respondent is entitled to challenge his proposed surrender and in order to do needs to have basic information about the offences to which the warrant relates. Among the issues that might be raised by a respondent are objections based on the rule of specialty, the ne bis in idem principle and extraterritoriality, to name but some”.
The Arrest Warrant in the present case.
52. The Arrest Warrant in the present case, in the translation supplied by the Spanish authorities, refers to a Spanish Court Order of 23rd September, 2009:
“ordering prosecution and issuance of an arrest warrant for Michael Martin Connolly for an alleged offence of endangerment of public health, as set forth in Articles 368 and 369 of the Spanish Penal Code”.
53. This occurs on the second page of the warrant, which is not internally paginated, at least in the translated form.
54. Notwithstanding the reference to “an offence”, on the following page, the third page of the document states that it refers in total to “2 Offences”.
55. Furthermore on the twelfth page of the translated version of the warrant, Part I provides as follows:
“If applicable tick one or more of the following offences punishable by the issuing Member State by a custodial sentence or detention order of a maximum of at least three years as defined by the law of the issuing Member State”.
56. In the list that follows the issuing Member State has ticked the offences of “participation in a criminal organisation” and “illicit trafficking in narcotic drugs and psychotropic substances”.
57. These crimes, obviously, are “offences”, quite distinct in nature from, and quite separate from, the offence of “endangerment of public health”.
58. The learned trial judge was critical of the drafting of the European Arrest Warrant and the filling in of various parts of the form constituting it. He said:
“I believe it is fair to characterise the manner in which particulars have been set out in this case as idiosyncratic. Furthermore, although the Court hesitates to characterise it thus, the approach adopted was also somewhat lazy. What the author of the warrant appears to have done is simply to cut and paste, or otherwise extract in an unedited fashion, portions of a police investigation file”.
59. I respectfully agree with what the learned trial judge says in the passage just quoted. This observation applies particularly to the “box ticking” exercise on the fourteenth page of the translated version of the warrant. There, the issuing judicial authority is invited to “ tick one or more of the following offences”. The two offences ticked plainly indicate that the relevant official of the issuing State considered that he was identifying “offences”. The filling in of this part of the form which constitutes the European Arrest Warrant specifically objected to at para. 3 of the additional grounds of objection filed by the respondent. This ground, also, sufficiently refers to the specification of the relevant offences, required by s.11 of the 2003 Act, so that I consider that this point was raised by the applicant before the High Court.
60. In light of the obvious ambiguity described, the Irish authorities, as they were entitled to under subsection (2A) of the s.11 of the Act already cited, sought further information. By a letter from the Spanish authority, dated 3rd March 2010 in the Spanish version, they were informed that:
“The EAW refers to an alleged offence against public health which is punished in according to Article 368 of the Spanish Penal Code”.
61. The arrest warrant in this case seems internally inconsistent. It refers both to “an offence” and to “2 offences”. When further information was requested the formulation “an” offence was mentioned without any explanation of the reference to “2 offences”, or of the specification of two new offences different from the one (or two) first alleged.
62. Equally, the “ticking of the boxes” refers to two further offences, not previously mentioned. It was the view of the respondent on the hearing of this appeal that the author of the warrant confused aggravating circumstances which, under Spanish law, may increase the penalty for an offence with separate offences. Nevertheless the net position of one scrutinising the warrant to see what it relates to is that it claims, first, to relate to a single offence; secondly to relate to 2 offences and finally, ten pages later, it mentions 2 offences quite different in nature from the offence or offences of “endangerment of public health” already mentioned. Even if counsel for the respondent is correct in his speculation about these latter being intended to be aggravating circumstances rather than separate offences, the fact is that they are specifically described as “offences” in the European Arrest Warrant.
63. This matter is of the greatest importance since the ability of the requesting State to put the appellant on trial is limited to the offences specified in the warrant. It is a mandatory requirement of the European Arrest Warrant procedure that there be unambiguous clarity about the number and nature of the offences for which the person sought is so sought. Presumably, the Spanish authorities know for how many offences they intend to put him on trial. I cannot understand why this has not been made clear.
64. The relevance of this requirement, contained in s.11 of the Act of 2003 is particularly clear in the present case because the objection was one to which s.44 of the Act applies, and therefore one which requires a very specific knowledge of the precise Spanish offences for which delivery is sought. The case of Minister for Justice Equality and Law Reform v. Bailey [2012] IESC 16 (unreported, Supreme Court, 1st March, 2012) emphasises the need to consider the issue of reciprocal offences which cannot be done without the specific knowledge of the Spanish offences referred to. This specific and unambiguous information is also required, as several citations above make clear, for the purpose of the implementation of the Rule of Specialty.
65. I consider it to be an imperative duty of a court asked to order the compulsory delivery of a person for trial outside the State to ensure that it is affirmatively and unambiguously aware of the nature of the offences for which it is asked to have him forcibly delivered, and for which he may be tried abroad, and of the number of such offences.
66. I would, therefore, dismiss the appeal and decline to make an order for the delivery of the respondent.