Review of R. Farrell and A. Hanrahan, The European Arrest Warrant in Ireland (Dublin: Clarus Press, 2011)

Transcription

1 2013 Book Review 135 Review of R. Farrell and A. Hanrahan, The European Arrest Warrant in Ireland (Dublin: Clarus Press, 2011) Dr. Yvonne Marie Daly* The European Arrest Warrant (E.A.W.) procedure, which allows for the surrender of individuals by one member state of the European Union (E.U.) for prosecution in another member state of the E.U., has been in operation for more than eight years. 1 In the first seven years of its existence, from the beginning of 2004 until the end of 2010, Ireland surrendered 424 persons under this procedure, with the numbers increasing year on year, beginning with just two in 2004, seven in 2005, 45 in 2006 and up to 161 in During the same time-frame 148 persons were surrendered by other member states to face criminal prosecution in Ireland. 3 In 2010, the Minister for Justice, as the designated Central Authority in Ireland, received 373 E.A.W.s seeking the surrender of individuals to other member states of the E.U. Poland issued the greatest number of those E.A.W.s, by quite a considerable margin. It sought the surrender of 240 individuals, while the second-highest number of E.A.W.s emanated from the United Kingdom, seeking the surrender of In the same year, Ireland issued 51 E.A.W.s, the majority of which (38) were addressed to the Central Authority of the United Kingdom. 5 * Lecturer in Law, Socio-Legal Research Centre, School of Law and Government, Dublin City University 1 The relevant Framework Decision (Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between member States (2002/584/JHA) was issued in 2002 but the relevant domestic legislation (the European Arrest Warrant Act 2003) was not promulgated until 2003 and was not commenced until January by s. 1(2) of that statute. 2 See the Appendices to the following report: Department of Justice and Equality, Report on the Operation of the European Arrest Warrant Act 2003 (as amended) in the year 2010 < (date accessed: 2 April 2012) [hereinafter 2010 Report]. 3 The number of persons surrendered to Ireland has generally increased each year too (from 5 in 2004 to 35 in 2009), though there was a reduction in 2010 (with just 26 persons surrendered). 4 See the Appendices to the 2010 Report, supra note 2. 5 Ibid.

2 136 Irish Journal of Legal Studies Vol. 3(1) It is clear that the E.A.W. procedure has become an integral part of the criminal justice structures of the E.U. and each of its member states. In Ireland, the introduction of the E.A.W. procedure, and the challenges presented by the sometimes imprecise or vague drafting of both the relevant Framework Decision 6 and the European Arrest Warrant Act 2003 (2003 Act), which gives domestic effect thereto in this jurisdiction, has led to a busy time for the superior courts. In 2010, for example, at least 20 cases came before the superior courts relating to E.A.W. issues. The European Arrest Warrant in Ireland is both timely and important as it outlines the operation of the E.A.W. procedure in a step-by-step manner, addressing the interpretation of the relevant E.U. and domestic legal instruments, notable decisions of the Irish courts in this regard, and certain issues which remain to be clarified in the future. Although it seems that academic commentary on the E.A.W. procedure has been somewhat slow in keeping pace with its establishment, this book forms part of a growing interest in the subject which is likely to increase in coming years. 7 This book will be most useful for practitioners as it provides a wealth of practical information on the E.A.W. procedure, but it is a very good starting point for anyone with an interest in the topic. The book is divided into three substantive parts. Part I provides an overview of the European Arrest Warrant scheme and includes chapters 1-3 on The Nature of the European Arrest Warrant ; Overview of the European Arrest Warrant ; and The Obligation to Surrender. Part II outlines specific procedural issues relating to E.A.W.s and contains chapters 4-9 on: Receipt and Endorsement ; Arrest and Execution ; Post-Arrest Procedure ; The Hearing ; Surrender ; and Appeals and Article 40. Finally, Part III deals with objections to surrender and in chapters the following matters are addressed: Correspondence ; Minimum Gravity ; Extra- Territorial Offences ; Trials in Absentia ; Speciality ; Ne Bis in Idem and Equivalent 6 Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between member States (2002/584/JHA). 7 Some examples of academic commentary specifically on the Irish experience of the E.A.W. procedure include D. Walsh, The European Arrest Warrant in Ireland: Surrendering our Sovereignty to a European Criminal Law Area in I. Bacik and L. Heffernan, eds., Criminal Law and Procedure: Current Issues and Emerging Trends (Dublin: First Law, 2009) 5; E. Fahey Being a Third Pillar guardian of fundamental rights? The Irish Supreme Court and the European arrest warrant (2008) 33 European Law Review 563; S.M. O Ferrall, European Arrest Warrant Proceedings and Bail (2012) 30 I.L.T. 22; and P. Gunning Is there a European Legal Code? (2006) 16(1) I.C.L.J. 2.

3 2013 Book Review 137 Domestic Proceedings ; and, Protection of Rights. Both the full Framework Decision and the 2003 Act are included in appendices to the book which is most useful for the reader. An interesting introduction to the issue of surrendering individuals between States is provided in Chapter 1 and a discussion of the differences between the former process of extradition and the new E.A.W. scheme provides much food for thought. One particularly interesting observation in the opening pages of this book is the fact that historically the question of extradition has been a matter for the executive, rather than the judicial, branch of government. The authors point out, however, that in Ireland the courts have had more of a role in decisions on extradition than is true of most other E.U. member states. They suggest that the highly politically charged nature of many extradition requests made of Ireland in the 1970s and 1980s might explain the fact that the executive branch of government was generally content to leave such matters to the courts. 8 The E.A.W. process, under which judicial authorities can communicate with one another for the purpose of implementing judicial decisions, 9 may accordingly represent more of a shift for other jurisdictions than it does for Ireland. The authors suggest that it seeks to cut out the middle man in the form of the executive and remove decisions in relation to extradition (or more properly surrender ) from a political and diplomatic context into a purely judicial context. 10 While perhaps a little more discussion on the increasing level of E.U. involvement in matters of criminal justice and the need for a system such as the E.A.W. scheme could have been provided in the opening section of the book, limitations of space are likely to have necessitated a relatively brief introduction before focusing on the specifics of the procedure. In terms of those specifics, the authors discuss the nature of Framework Decisions generally, and the particular interaction between the E.A.W. Framework Decision and the 2003 Act. Difficulties relating to the drafting and subsequent interpretation of both the 2003 Act and the Framework Decision are referred 8 R. Farrell and A. Hanrahan, The European Arrest Warrant in Ireland (Dublin: Clarus Press, 2011) at 4 [hereinafter The European Arrest Warrant in Ireland]. 9 Ibid. at Ibid.

4 138 Irish Journal of Legal Studies Vol. 3(1) to throughout the book and reference is made in places to judicial voice on the matter. For example, as the authors note, Mr. Chief Justice Murray in Minister for Justice, Equality and Law Reform v. Ferenca referred to the somewhat vague language and curious construction of the Framework Decision 11 and in Dundon v Governor of Cloverhill Prison Mr. Justice Geoghegan suggested that the Act is not happily drafted. 12 Ambiguities between the domestic legislation and the Framework Decision, combined with the difficulties involved in operating a system such as the E.A.W. across a variety of member states, are highlighted throughout the book. One issue which arises is the difference in domestic terminology or procedure between member states. An example of this is provided in Chapter 3 where the authors note that while the Framework Decision refers to surrender for the purpose of conducting a criminal prosecution, section 21A of the 2003 Act provides for surrender in circumstances where a decision has been made to charge the person. There are notable differences in procedures across member States to denote the beginning of a criminal prosecution and the interpretation of the Framework Decision and the 2003 Act in this regard has therefore caused some difficulties for the Irish courts. 13 In a similar vein, the authors note in their Chapter 15 discussion of the ne bis in idem principle, that reference to Double Jeopardy in the title of the relevant section of the 2003 Act is problematic as the principle of double jeopardy is unknown to civil jurisdictions. 14 At times this book could benefit from more detail or even greater reference to sources where that detail might be found. For example, in Chapter 3 the authors discuss the initial failure of section 10 of the 2003 Act to provide for surrender in circumstances where a person had absconded subsequent to charge and in circumstances where a 11 [2008] 4 I.R. 480 at [2006] 1 I.R. 518 at See, for example, Minister for Justice, Equality and Law Reform v. L.G. [2005] I.E.H.C. 310; Minister for Justice, Equality and Law Reform v. Balcianus [2007] I.E.H.C. 34; and Minister for Justice, Equality and Law Reform v. Ostrovskij [2006] I.E.H.C. 242 as referred to in The European Arrest Warrant in Ireland, supra note 8 at In the context of E.A.W. proceedings, the essential concern of the ne bis in idem principle is that a person should not be surrendered to a member State to face prosecution on charges relating to conduct for which he has already been convicted or acquitted in another member state.

5 2013 Book Review 139 person had been convicted but not yet sentenced. They state: [e]xperience would tend to suggest that it is the first of these categories which tends to give rise to the majority of requests for surrender which makes it all the more surprising that it was omitted in its entirety from the Act as initially passed. 15 While this personal insight is interesting, statistics or some greater level of foundation for the claim might be more appealing. Having said that, the personal observations of the authors are, I believe, likely to be useful for practitioners who want to get a feel for the operation of the E.A.W. process. In Chapter 2, for example, the authors provide a practical outline of the form and content of an E.A.W. This is a most useful step-by-step guide for those who might need to understand the important elements of each individual section thereof. The authors point out which sections are of most significance, noting, for example, that paragraph (e) of an E.A.W., which lists the offences for which the named individual is sought, is the most significant part of the warrant from a practitioner s point of view as it will generally contain the information on foot of which an assessment is made in relation to correspondence. 16 Similarly, in Chapter 4, the authors note that, although not officially provided for in any legislation, a practice has developed whereby the application for endorsement of an E.A.W., which is made ex parte, will be moved in open court, though no reference will be made to the identity of the respondent and no specific information will be given on the offences which are the subject matter of the E.A.W. such that the respondent might be identified therefrom. This procedure, they say, is like that adopted in relation to the issuing of search warrants. 17 Again, this practical insight will be most helpful for anyone practising in the area. In Chapter 6 it is noted that, unless the respondent consents to surrender voluntarily, the High Court is obliged to fix a hearing date within 21 days of the date of arrest (under section13(5) of the Act 2003). However, again displaying the benefits of the authors practical experience, it is further noted that [i]n practice the 21 day time limit 15 The European Arrest Warrant in Ireland, supra note 8 at Ibid. at Ibid. at 65.

6 140 Irish Journal of Legal Studies Vol. 3(1) is entirely notional and largely aspirational. The provisions of s.13(5) do, however, require that the initial remand of the respondent be within 21 days even though subsequent remands may well be considerably longer. 18 A number of interesting rights-related issues are discussed within this book, primarily in Parts II and III. The discussion on bail for persons arrested pursuant to an E.A.W. in Chapters 4, for example, is very interesting. The authors suggest that the provisions of the Bail Act 1997 (1997 Act), which, in conjunction with the constitutional amendment to Article , extended the grounds on which bail might be refused to include the risk of the commission of serious offences, do not apply in the context of a person arrested pursuant to an E.A.W. In this regard they note that section 1 of the 1997 Act limits its applicability to courts exercising criminal jurisdiction. As courts operating the E.A.W. procedures are not exercising such jurisdiction the authors contend that the pre-1997 rules on bail emanating from the seminal case of People (A.G.) v. O Callaghan 19 are the only rules applicable in the E.A.W. context. A question which the authors note is yet to be judicially addressed is whether a distinction should be drawn in relation to bail between a person subject to an E.A.W. for proceedings yet to be held and one subject to an E.A.W. who fled post-conviction and/or sentencing. 20 In Chapter 16 a number of other rights-related issues are discussed and the authors compare and contrast the situation prior to the 2003 Act with that which now pertains. This discussion raises some notable matters, such as the entitlements of a requested person to protection under the terms of Article 38.1 of the Constitution during his surrender hearing, the potential impact of surrender on an individual s right to family life under Article 8 of the European Convention on Human Rights, and the impact (if any) of poor prison conditions in a requesting State on the decision to surrender. The discussion of these and other issues provides an insight into the interaction between the Framework Decision and the 2003 Act on the one hand and existing human rights protections on the other. 18 Ibid. at [1966] I.R The European Arrest Warrant in Ireland, supra note 8 at76.

7 2013 Book Review 141 Many other notable and important issues are explained and discussed within this book including the requirements of correspondence ( one state should not be put in the position of being required to detain an individual and assist in that person s prosecution in circumstances where the conduct in question is not regarded as a crime under the law of that state 21 ), issues around extra-territorial offences, 22 trials in absentia, 23 and the rule of speciality (which allows the requested State to surrender subject to the requirement that the surrendered person will not be prosecuted for any offence other than that for which he was surrendered). 24 In his Foreword to this book, Mr. Justice Peart, who has heard many E.A.W. cases in the High Court, noted the breadth of the E.A.W. scheme in terms of the nature of offences which can fall under its remit. He stated that [w]hile many warrants disclose serious crimes such as murder, rape, sexual assault, assault causing harm, and a myriad of different drugs offences, many on the other hand disclose offences at the lower end of seriousness, the most memorable being the theft of three chickens and one bicycle! 25 He further observed that [c]urrently, the volume of warrants arriving in this State in respect of relatively minor offences is causing unavoidable delays in the hearing of applications, and of course imposes a considerable expense upon the State which is obliged to provide legal advice and representation to the person sought as well as interpretation. There are other significant expenses in terms of An Garda Síochána, the Prison Service and the Courts Service, which in the majority of cases are out of all proportion to the offence for which surrender is sought by the issuing state. 26 The authors make a similar observation in Chapter 11 and they further note that E.A.W. proceedings can cause considerable disruption to the life of a requested person Ibid. at Ibid. at Ibid. at Ibid. at Ibid. at vii. 26 Ibid. 27 Ibid. at 169.

8 142 Irish Journal of Legal Studies Vol. 3(1) In response to these concerns, both the Framework Decision and the 2003 Act provide that a person may only be surrendered where the offence in question meets the relevant minimum gravity criteria. However, despite the existence of these criteria it seems that E.A.W.s are still issued in relation to relatively trivial offences. Indeed, the use of E.A.W.s for patently minor or trivial offences has raised concerns within the Council of the E.U. in recent times 28 and, it seems, among the political leaders of certain member states. 29 Once again the topicality and timeliness of this book is apparent. In conclusion, this book gives a comprehensive overview of the operation of the E.A.W. scheme under the Framework Decision and the 2003 Act. It deals with all of the most significant matters and a wealth of Irish case-law on E.A.W. issues is examined in the process, reflective of the growing body of case-law with which both academics and practitioners are no doubt finding it difficult to keep pace. One might have expected, and the book might have benefitted from, some additional case-law from other member states on their interpretations of E.A.W. matters, particularly those involving Ireland as the requesting state. While a number of cases from other member states are outlined along with some cases from the European Court of Justice, a greater insight into interpretive difficulties encountered in the courts of other member states might have added another level of the depth to this book. Admittedly, any all-encompassing overview of the jurisprudence on E.A.W. issues across all member States would be almost impossible, though Mrs. Justice Denham (as she then was) did express a desire for relevant cases from other member states to be drawn together in the one place. In Minister for Justice, Equality and Law Reform v. Murphy 30 the now Chief Justice suggested that it would be helpful to have a centralised site where judgments of the courts of member states on E.A.W.s would be available. It would be of assistance, she said, to know how similar cases were being decided in other member states. 31 That is a task for another person on another day and is not to detract from the value of The European 28 Memorandum from the Council of the E.U. to the Working Party on Cooperation in Criminal Matters (10975/07), July , cited in The European Arrest Warrant in Ireland, ibid. at 177, note In the United Kingdom, for example, Deputy Prime Minister Nick Clegg recently spoke about the need to ensure that the use of E.A.W.s is always proportionate and that citizens can have confidence in the system; Mark Hennessy, European arrest warrant system helps serve justice, says Clegg Irish Times (8 March 2012). 30 [2007] I.E.S.C. 17 at para The European Arrest Warrant in Ireland, supra note 8 at 21.

9 2013 Book Review 143 Arrest Warrant in Ireland. The authors of this text are to be commended for the engaging and informative overview of the operation of the E.A.W. scheme in Ireland which this book provides.