Neutral Citation: [2016] IEHC 180
THE HIGH COURT
Record No. 2015/93 EXT
BETWEEN
MINISTER FOR JUSTICE AND EQUALITY
APPLICANT
RESPONDENT
JUDGMENT of Mr. Justice Hunt delivered on the 3rd day of March, 2016
Background
1. This is an application for the surrender of the respondent to the United Kingdom pursuant to the provisions of s. 16 of the European Arrest Warrant Act 2003 (“the Act”). The warrant in question was issued by District Judge Andrew Shaw of the Liverpool Magistrates Court on 21st May, 2015. The warrant was endorsed for execution by the High Court on 9th June, 2015 and was executed on 23rd September, 2015, when the respondent was arrested by Garda Peter Egan at Tallaght Garda Station, Dublin. On that date, he was brought before the High Court and was released on bail. The respondent lodged points of objection to his surrender on 2nd November, 2015, followed by supplemental points of objection on 7th December, 2015. The application for surrender and the objections hereto came on for hearing on 4th February, 2016.
The Arrest Warrant
2. The arrest warrant is expressed to be based on a warrant of arrest at first instance dated 19th December, 2014, issued at Liverpool Magistrates Court for two offences of indecent assault. It recites that the maximum length of the custodial sentence or detention order which may be imposed for these offences is ten years imprisonment as the victim was under 13 years of age. The complainant in the case was born on 3rd January, 1988 and alleges that in 1994, when she was six years old, she was sexually assaulted on two occasions by the respondent, who is her stepbrother and was then aged approximately 14. It is recited that at that time they both lived at an address on Merseyside. The warrant gives descriptions of the alleged indecent assaults, details of which appear below. It is also recited that the respondent travelled to Liverpool voluntarily and presented himself for interview under caution by Merseyside Police on 1st August, 2013, when he provided an account in response to the allegations that were put to him. Both allegations were denied by the respondent, and his police interview contained certain factual assertions relating to the family situation of the complainant and the respondent, and to the conduct of his father, who was also the stepfather of the complainant.
The warrant also offers other information relevant to the delay in time between the commission of the alleged offences in 1994 and the time that the complaint was made to Merseyside Police in 2011. It asserts that the complainant did not make a complaint until she had a daughter of her own, that she had alleged that her stepfather (since deceased) had also sexually abused her, and that she was concerned for the safety of her daughter. The warrant also explained the delay between the making of the complaint and the decision to charge the respondent as being due to difficulties by the police in locating K, and that “Significant delay occurred when the prosecution sought to obtain any identification means, by way of a passport photograph, however this failed.” It also notes that there are no time limits under the law of England and Wales in relation to the prosecution of such alleged offences.
Further Information
3. By letter dated 10th December, 2015, the applicant acting as central authority for the European Arrest Warrant in this jurisdiction wrote to the relevant agency in the United Kingdom seeking confirmation that the alleged offences were committed after 15th April, 1994. By letter of reply dated 11th December, 2015, the Senior Crown Prosecutor for Merseyside replied as follows:-
“The victim has said she was aged 6 at the time of the offences, her date of birth is 3/1/88. She has not been able to be more specific and I am, therefore, unable to confirm that the offences took place after PK’s birthday on 15/4/94 when he was 14.”
By a memo communicated by e-mail to the applicant on 11th December, 2015, an officer of the Fugitives Unit of the United Kingdom National Crime Agency further confirmed as follows:-
“Furthermore, in relation the below the CPS have informed me that there was a statement from the grandmother asserting that K returned to Ireland for a relative’s funeral on 07/06/1995. Therefore, the offences would have occurred prior to that date which may have been before K’s birthday.”
Objections to Surrender
4. The initial points of objection lodged by the respondent pleaded that his surrender was prohibited by s. 37 of the Act on the basis that it would breach his constitutional rights to fair procedures and the enjoyment of his family life (under Article 41 of the Constitution and/or Article 8 of the European Convention on Human Rights). In the circumstances, it was asserted that his surrender would be an unjust and disproportionate interference in his family life. In support of that plea, the respondent has lodged uncontradicted evidence on affidavit to the effect that he has lived most of his life in Dublin and is currently working and residing in this area. He is also in a full time relationship, and has a number of children arising out of this and other relationships, and he contributes actively, both financially and otherwise, to the welfare and lives of his partner and various children. There are references to particular requirements and needs arising in relation to a number of these children.
The supplemental point of objection delivered by the respondent asserts that his surrender is prohibited by the provisions of s. 43 of the Act, on the basis that if the alleged assaults occurred prior to 15th April, 1994, then the respondent would then have been presumed not to have reached the age of discretion and therefore not to have criminal capacity in relation to the alleged indecent assaults.
It was not argued that the applicant has failed to demonstrate compliance with the any of normal and usual requirements for surrender, save for the two specific objections argued at the hearing of this application. I propose to deal with these objections in the reverse order to that in which they were lodged.
The Section 43 Objection
5. Section 43 of the Act provides as follows:-
“A person shall not be surrendered under this Act if the offence specified in the European arrest warrant issued in respect of him or her corresponds to an offence under the law of the State in respect of which a person of the same age as the person in respect of whom the European arrest warrant was issued could not be proceeded against by reason of his or her age.”
For the purposes of dealing with this objection, I have made the assumptions most favourable to the respondent arising out of the contents of the warrant and further information referred to above. The alleged victim would have been aged 6 between 3rd January, 1994 and the 3rd January, 1995. The respondent turned 14 on 15th April, 1994, and the respondent appears to have left Merseyside for Ireland in June 1995. The analysis required by the terms of s. 43 seems to centre on whether there would be any bar to proceeding against the respondent in this State relating to his age at the time of the commission of the alleged offences. Consequently, the parties in this case have agreed that so far as capacity issues are concerned, the situation of the applicant must be judged by reference to provisions of domestic criminal law applicable to this situation in 1994.
6. Whilst the current position regarding the criminal responsibility of a child is now governed by s. 52 of the Children Act 2001, in 1994 this issue was governed by the common law doctrine of doli incapax. This doctrine comprised of a conclusive presumption that a child under seven years of age was incapable of committing a crime, together with a rebuttable presumption that a child between 7 and 14 years of age was similarly incapable. The effect of the latter presumption was the creation of a very strong presumption of innocence for a child between the ages of 7 and 14, which was not displaced merely by the production of evidence of the external element of the crime. Possession of the necessary capacity was not equated solely with the mental element of the relevant offence, nor was the presence thereof automatically proved by the conduct constituting the offence charged. Proof of an extra specific element was required in order to defeat the presumption. It was incumbent upon the prosecution to rebut this presumption at the outset of a case, by evidence showing that the child knew that the conduct was gravely or seriously wrong, as opposed to being merely naughty or mischievous.
7. According to the doctrine of doli incapax, if either of the alleged offences occurred after the date of the respondent’s 14th birthday on 14th April, 1994, then this issue would not arise for consideration at all. However, on the basis of the dates referred to above, it is, at least equally possible that the alleged offending might have occurred between the alleged injured party’s 6th birthday on 3rd January, 1994 and the date of the respondent’s birthday in April of that year. As fairness to the respondent dictates that I take the view most favourable to the his position, I will assume for the purposes of this argument that if the alleged offending took place, it did so during a period when the respondent was entitled to the benefit of a rebuttable presumption of incapacity under the applicable law of this State as of the relevant part of 1994.
8. The question that arises under s. 43 is a matter of interpretation of the words chosen by the Oireachtas for use therein. In his written submissions, the respondent points out that there is a contrast between the underlying provisions of the Framework Decision and the wording selected by the drafters of s.43 of the Act. Article 3 of Decision 2002/584 provides, in effect, that the surrendering State shall refuse to execute a warrant where the subject thereof “may not, owing to his age, be held criminally responsible.” This is contrasted with the domestic provision that a person shall not be surrendered if he or she “could not be proceeded against” in relation to a corresponding offence “by reason of his or her age.” In my opinion, there is a real distinction between these provisions, involving more than a marginal or semantic difference. The Framework Decision appears to prescribe refusal to surrender where there may be an absence of criminal responsibility due to age, whereas the Oireachtas appears to have enacted that there shall be no surrender where proceedings can not take place in this State by reason of the subject’s age.
I am satisfied that there is a distinct difference between the two concepts at the heart of these respective provisions. One focuses on whether proceedings are possible by reference to age, the other on whether criminal capacity may be present by reason of the same criterion. I take the view that “proceeded” in this context means the invocation of the jurisdiction of a court, and that the plain meaning of s.43 is that surrender shall not occur where age prevents court proceedings, rather than constituting a specific issue to be addressed in the conduct of such proceedings after commencement.
9. Although I am entitled where possible to interpret the words used by the Oireachtas in a manner which attains the purposes of the Framework Decision, it is also the position that any obligation to interpret a national law in conformity with Community law cannot serve as a basis for the interpretation of national law contra legem. In my opinion, the clear and distinct words used by the Oireachtas do not admit of anything other than the plain meaning that surrender shall only be refused where proceedings for a corresponding offence could not take place in this State by reference to the criterion of age.
In this case, age is a not a factor which would prevent proceedings being instituted against the respondent. His age provides the respondent with a presumption against capacity in his favour in relevant proceedings in this State, which the prosecution would be required to rebut at the outset. If proceedings could have been initiated against the respondent in this State in 1994, he must necessarily fall outside the terms of the statutory provision said to prevent his surrender. One of the purposes of any proceedings against the respondent in this jurisdiction for offences committed in 1994 would be to test whether the prosecution could provide sufficient evidence to rebut the presumption of incapacity, in exactly the same way as the overall presumption of innocence would be tested in such a case.
10. Counsel for the respondent argued that this issue should be approached from a wider perspective. Firstly, it was suggested that the court in a surrender application must be presented with sufficient evidence in order to determine whether the respondent had the capacity at the relevant time to commit the offences as alleged. Secondly, and as an alternative, it was submitted that there must be material before the court which provides an evidential basis upon which a judge in the requesting State could hold that the presumption against capacity was rebutted. It was argued that as there was no information before the Court which was capable of satisfying either of these requirements, then the provisions of s. 43 were engaged and surrender ought to be refused.
11. In my view, there is no statutory or other legal basis underpinning the existence of such requirements. The applicant has successfully engaged with the provision contained in s. 43 by the submission that the fact that the respondent is entitled to the benefit of a presumption against capacity is not equivalent to an age-related bar on the institution of putative proceedings against the respondent in this jurisdiction for equivalent offences. In that situation, I do not believe that there is any obligation on the requesting authority to provide any further information over and above the potential evidence relating to the offences in respect of which surrender is sought, nor are they required to engage with other matters which may be entirely theoretical in the context of the proposed prosecution in the requesting State. If the respondent could not be prosecuted in domestic law because of his age at the time of the alleged offences, then that would be the end of the matter, irrespective of any information or proposed evidence that might be provided by the requesting authority. The fact of the matter is that he could have been prosecuted in this jurisdiction in respect of these alleged offences, but his age at the time thereof required that in such a prosecution it would have been necessary to prove a particular state of mind over and above that required for proof of commission of the offence itself.
As it was not argued that this additional requirement prevented correspondence of the relevant offences in each jurisdiction, I do not propose to comment any further on this aspect of the matter. I agree with the submission of the applicant to the effect that the only relevant issues in a case such as this are whether the offences correspond, and if they do, whether the issue of age means that there could not be proceedings in respect of such offences in this State. To import other matters is not justified by the plain words of the Act, and would lead to consideration of matters that may be entirely irrelevant to the trial in the requesting State, in a manner that would be unwieldy, if not completely unworkable.
12. In the event that I am incorrect in adopting a narrow view of s.43, it is necessary to examine the warrant and the further information in more detail for the purpose of assessing whether the requirements suggested by the respondent have been met, in the event that the applicant is obliged to engage with and demonstrate the rebuttal of the presumption of incapacity in putative proceedings in this State. The circumstances of the alleged offences set out in the warrant include to the following matters:-
“G. states that on the first occasion she was playing in a park at the rear of her house with her brothers and sisters. P.K. told her to tell her brothers and sisters she wanted to go to the toilet. P.K. took G. to a different area of the park where he placed his coat on the floor. K. laid G. down on the floor lifted her dress and pulled her underwear down. K. then licked G’s vagina for a couple of minutes. Afterwards he told her that is how he loved her and not to tell anybody else.”
A second incident is then described, involving P.K. rubbing his penis against G’s vagina over a duvet, having entered her bedroom to read a bedtime story.
To rebut the presumption of doli incapax, the prosecution must, at the outset, produce evidence capable of satisfying a jury beyond all reasonable doubt that the accused in a case knew that his conduct was seriously wrong in the sense that it was not merely naughty or mischievous. In that context, I am satisfied that where the potential evidence suggests that the alleged victim was removed from her siblings on a pretext, that an advanced sexual act occurred, that there was an instruction not to tell anyone else, and that there was a final statement that this act demonstrated how he loved his stepsister, it would be clearly open to a jury to conclude that the respondent was aware that such conduct was seriously wrong. Having regard to the relatively close proximity of the two events, it would be also be possible to conclude beyond any reasonable doubt that at all times during this period he knew that such conduct was seriously wrong. In these circumstances, the material available suggests a clear basis upon which the presumption in favour of the respondent would be capable of being rebutted.
13. Consequently, I would not refuse the application for surrender of the respondent on the basis of this objection.
The Delay Objection
14. The respondent objected to his surrender on the basis of a breach to his constitutional right to fair procedures and the enjoyment of his family life under Article 41 of the Constitution and/or Article 8 of the European Convention on Human Rights (ECHR). It was argued that surrender in the particular circumstances of his case would constitute an unjust and disproportionate interference with the respect due to his family life. The argument appeared to be confined to the issue of Article 8 rights, rather than any breach of provisions of the Constitution.
15. The principles applicable to this issue have been analysed by the Superior Courts on a number of previous occasions. I propose to set out some of the extracts upon which I intend to rely. The test and approach to be applied to such a claim has been clearly enunciated by the Supreme Court in Minister for Justice and Equality v. Ostrowski [2013] IESC 24, in which Denham C.J. cited the judgment of Fennelly J. in Minister for Justice, Equality and Law Reform v. Gheorghe [2009] IESC 76, as follows (at paras. 36 & 37):-
“It is a regrettable but inescapable incident of extradition in general and, as in this case, surrender pursuant to the system of the [EAW], that persons sought for prosecution in another state will very often suffer disruption of their personal and family life. Some states have historically refused to extradite their own nationals, but that is a special case. The Framework Decision expressly provides that, in Article 1, that it does not ‘have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in article 6 of the Treaty on European Union’. No authority has been produced to support the proposition that surrender is to be refused where a person will, as a consequence, suffer disruption, even severe disruption of family relationships.”
Denham C.J. then continued as follows:-
“In almost all cases of surrender, family rights, article 8 rights, are affected. However, it is only in an exceptional case that art.8 rights would outweigh the requirement to surrender. This is not such an exceptional case. Thus, there is no foundation upon which to find for the respondent on this ground. Therefore, the general principle of proportionality does not arise in these circumstances.
Even if the principle of proportionality might arise in some circumstances, even if it could be a factor in a case, there is no basis in the principle of proportionality upon which to refuse to surrender the respondent in this case.”
16. In the same case, McKechnie J. also referred to the same extract from previous decision in Gheorghe and observed as follows (at para.63):-
“In summary, where resistance is offered by virtue of a Convention or Constitution right, the court must conduct a fact-specific enquiry into all relevant matters so that a fair balance can be struck between the rights of the public and those of the person in question. Such an exercise is not governed by any predetermined approach or by pre-set formula: it is for the trial judge to decide how to proceed. Once all of the circumstances are properly considered, the end result should accurately reflect the exercise. As part of the process, each of the competing interests must be measured. If appropriately conducted, the interests of the public, underpinned as they are by weighty considerations such as freedom and security, will virtually always merit a value of significance whereas those attaching to an individual will be more variable. The greater the impact to the person, the greater the weight. Consequences, inherent in the process itself, without more, will attract a much lesser value than consequences with real and substantial effect on the individual.”
On the specific question of delay, McKechnie J. stated as follows (at para.109):-
“Delay from one person’s point of view may have little or no impact on art.8 rights. Another person may reasonably draw encouragement from official inactivity over a passage of time particularly over a prolonged period without justifiable reason. Such a person may legitimately establish closer personal and social ties such as formalising a relationship or taking steps to integrate his community position. Another person for example may reasonably anchor his roots by engaging in a profession or business or by acquiring property. The longer the situation remains dormant the more impact the encouragement may have. There can therefore exist in this regard quite a distinction between both individuals…. Even if the period of time or delay is precisely the same, what distinguishes both is to be found in the consequences. Therefore an assertion, without more, will have minimal if any value whereas with significance and consequences it may have much.”
On the subject of immediate family, McKechnie J observed as follows (at para.111):-
“No authority is required to support the undoubted fact that a material matter is the impact which separation from family might have on the respondent. The trial judge however also took into account the impact which the interference could possibly have on others, who together with the respondent, constitute the unit in respect of which the art.8 rights are enjoyed. I think he was entitled to do so. Many cases on the immigration side confirm that where members of the family cannot reasonably be expected to join the excluded person in the third country, their rights are likewise engaged. Evidently, even if such persons did, in an EAW context, they could not continue enjoying the exercise of their existing rights, if incarceration followed. In any event in most situations it would not be practical or reasonable to expect family members to follow. One way or the other, I believe that in principle, their rights under Art.8 are also engaged.”
17. Consequently, it is my opinion that the Supreme Court has clearly stipulated that an exceptional case must be established to permit such rights to set aside the normal requirement to surrender. McKechnie J. also referred to a requirement for the facts in such a case to “demonstrate the likely existence of harmful consequences, peculiar to the respondent, which are of such significance as to outweigh the public interest in ordering his return”. These do not include matters falling within the expected consequences which might flow from, and which are inherent to the operation of the extradition process itself.
It is a reasonable conclusion that the exercise of ordinary family or personal rights is inevitably compromised by the usual or inherent consequences of rendition. Consequently, in broad terms, surrender must take place unless there is some exceptional feature relating either to the public or private interests in a case which renders surrender disproportionate. It appears to me that the Ostrowski decision implies that a refusal to surrender will be an exceptional outcome, requiring either exceptional features outside the ordinary ambit of the consequences that usually flow from surrender or, alternatively, an exceptionally serious or burdensome effect consequent upon such ordinary incidents. It also seems that it will be particularly difficult to find that disproportion exists on facts where the public interest remains strong and the private interests are not out of the ordinary.
Where the public interest is found to be significantly diluted, there will be room for the assessment of the proportionality of surrender within the context provided by the provisions of s. 37 of the Act of 2003. Although an outcome based on disproportion will be exceptional, any such balancing exercise is to be determined by reference to proportionality rather than exceptionality.
Public Interest
18. Consequently, in this case, I propose to conduct the fact-specific exercise referred to by McKechnie J. in Ostrowski, by measuring the public and private interests involved, by assessing whether that measurement permits of an assessment of proportionality and, if so, by deciding whether the private interests involved are sufficiently weighty to displace the public interest, thereby causing surrender to be a disproportionate measure in relation to the respondent on the facts of the case. In this respect, I will also rely on the summary of the principles to be applied to any objection based on Article 8 usefully set out by Edwards J. in Minister for Justice and Equality -v- J.A.T. [2014] IEHC 320.
The first step in the required balancing exercise is to properly recognise and duly rate the public interest in the extradition of the particular requested person. For this purpose, the public interest is a constant factor of variable weight. There is no fixed or specific attribution to the importance of the public interest in extradition. The gravity of the crime alleged is relevant to any assessment of the weight to be attached to the public interest in the individual case. The graver the crime, the greater is the public interest in surrender. In this respect, the point on the spectrum of the subject offence also requires to be assessed as part of the process. In this case, it is difficult in general terms to characterise any allegation of indecent assault as being trivial, or not serious. Most jurisdictions rightly regard such activities as grave crimes, particularly when they are alleged to have been committed against persons of tender years. Therefore, irrespective of any point on a spectrum, such offences almost invariably have serious consequences for both the victim and the offender. That being said, I take the view that having regard to the nature of the activities alleged in this case, and the relatively youth of both the alleged victim and the alleged offender, proof of these offences would place them at or about the midpoint of the range of gravity.
19. The public interest in extraditing a person to be tried for an alleged crime is of a different order from the public interest in deporting or removing an alien who has been convicted of a crime and who has received his sentence for it, or whose presence in the country is for some other reason not acceptable. The weight to be afforded to the public interest will not necessarily be the same in each case. So far as this case is concerned, I believe that it is appropriate to mark a slight diminution in the public interest by reason of the fact that the respondent is required for charge and trial in respect of “historical” or stale allegations, rather than for service of a sentence at the end of a concluded prosecution process.
20. Taking into account the two factors referred to above, I assess the public interest in extradition of the respondent to be strong, rather than very strong. The next question to be considered is the effect, if any, of any relevant periods of delay which might be taken into account in assessing the weight to be attached to the public interest in extradition in the instant case. Consequently, it is necessary to examine the available factual material to ascertain the existence or relevance of delay periods.
Complainant Delay
21. The complainant in this case came forward to make a complaint to police in 2011, seventeen years after the commission of the alleged offences in 1994. The warrant explains that she did not make a complaint until she had a daughter of her own. She alleged that her stepfather (since deceased) had also sexually abused her and she was concerned for the safety of her daughter. Such a period of delay would not be a bar to prosecuting the respondent for such alleged offences in this jurisdiction, where it is commonplace for the subject matter of such trials to stretch back much further than the period under consideration in this case. In this jurisdiction, fairness of trial is secured by appropriate rulings from the trial judge, including a strong warning to the jury as to the potential and actual effects of the passage of time on the position of the accused person.
I have not been informed as to the specific approach to such matters, if any, which might apply to the case of the respondent if he is returned to the United Kingdom for trial of these allegations. As a general observation, it appears to me that the bare fact that there has been a delay involving a considerable period in the complainant coming forward to the authorities is not, of itself, a reckonable or relevant period of delay in an application for surrender on foot of a European arrest warrant.
22. However, the issue of complainant delay must be relevant as a factor to be considered in the context of the investigative and administrative response a delayed complaint, once it has been received by the appropriate authorities. In my opinion, it is necessary that such authorities recognise the inherent capacity of complainant delay to prejudice to the rights and position of the suspect should they subsequently be charged and tried in relation to elderly “historical” allegations. It behoves the authorities to act with particular alacrity in the processing of such complaints, bearing in mind that the position of the suspect in a personal and family context may have been considerably changed and entrenched over the period covered by complainant delay and is liable to further entrenchment and change, potentially causing further prejudice, in the event of additional unwarranted administrative delay.
Therefore, whilst complainant delay of itself cannot be laid at the door of an administrative authority seeking rendition for the purpose of charge and trial, such delay will trigger particular scrutiny of investigative and administrative action once the delayed complaint has been placed under the control of the responsible authorities. Timely action by them not only demonstrates the necessary commitment to ensure that the quality of justice is not corroded by further unnecessary delay, but also serves as a practical illustration of the genuinely pressing need for extradition usually asserted in the context of a subsequent surrender application.
Administrative Delay
23. Legitimate concerns arise in this case in respect of periods of delay that occurred between 2011 and the date upon which the respondent was brought before this Court for the purposes of the application for surrender. The fact of such delays is established by the contents of the European arrest warrant issued in this case, in circumstances where the authors thereof felt it necessary to identify and explain the handling of this matter by the United Kingdom authorities in the following terms:-
“The delay between the making of the complaint and the decision to charge K. was due to difficulties by the police in locating K. Significant delay occurred when the prosecution sought to obtain any identification means, by way of a passport photograph, however, this failed.”
Therefore, the starting point in this case is that the foundation document acknowledges not only the existence of two periods of might be termed “administrative delay”, but also the fact that the second of these is regarded by those authorities as being “significant”.
24. In relation to the first period of potential administrative delay, the case papers do not specify the date in 2011 upon which the complainant first approached Merseyside Police in relation to this matter. In the absence of specific information, I must assume the basis most favourable to the respondent, being that the complaint was made earlier rather than later in 2011. The warrant and associated information does not suggest that the proposed prosecution consists of anything other than the evidence of the complainant and, accordingly, it must also be assumed that the ingredients of the proposed prosecution were also in place in 2011, save for any contribution that the respondent might elect to make during any subsequent police interview. The warrant asserts that any delay between the date of the complaint and the decision to charge was due to difficulties that the police had in locating the respondent. No elaboration is offered in relation to this assertion. The uncontested evidence of the respondent on this point is that he lived openly at an address in Dublin during that period, and was contacted by the Gardaí on an unspecified date in 2013, when he was given the contact details of a named member of the Liverpool Police Service. He states that he contacted this police constable, and was informed that there was a historical allegation of indecent assault against him. He offered to travel over to Liverpool on the next day, but was instructed to wait so that the necessary arrangements could be made. He then recites that in August 2013 he travelled to Liverpool and was interviewed by police there. He was informed of the allegations and denied them in full. He also made certain allegations against his father, who is also the stepfather of the complainant.
25. In the light of these facts, I do not believe that there is an adequate explanation for the period of approximately two years between the receipt of the complaint and the subsequent interview of the respondent by Merseyside Police. It appears that the name of the respondent and some family details were available to the authorities. I cannot see any reasonable justification in modern circumstances for an inability to locate a named individual living openly in Dublin for a period of over two years. At the very worst, it ought to have been possible to locate the respondent and invite him for interview by the end of 2012. The activities of the authorities during this period of delay are not indicative of any very pressing urgency in relation to this matter. There is no indication of any change of circumstance preventing the respondent being approached prior to the initial contact made in 2013.
26. Unfortunately, it appears that the requirement for prompt action was also not observed by the authorities during the period following the formal police interview. Given that all matters were apparently complete as of August 2013, and that the case materials seem to consist solely of two statements, a decision to charge and try ought to have followed in early course, given that a period of administrative delay had followed upon a protracted period of complainant delay. It would have been reasonable to have expected the prosecution authorities to have made a decision to proceed upon such a slim volume of material by the end of 2013. The date of the actual decision to prosecute is not revealed, but the next affirmative action by the authorities was the issue of a warrant of arrest at first instance at the Liverpool Magistrates Court for the two alleged offences on 19th December, 2014, approximately sixteen months after completion of the police file. The issue of the European arrest warrant took another five months, being issued on 21st May, 2015. The warrant was endorsed for execution by this Court on 9th June, 2015, but was not executed for a further three months, until 23rd September, 2015.
27. The only explanation proffered for the inactivity of the United Kingdom authorities between August 2013 and May 2015 is that there was some difficulty with the issue of identification, with reference to an inability to obtain a passport photograph. Once again, I do not think that this explanation stands up to any scrutiny. There was no issue as to address or identity when the Gardaí first contacted the respondent at the behest of the Merseyside Police in 2013. It appears that the respondent cooperated fully and actively with the investigation and, indeed, wished to travel to Liverpool to give his statement before the police were ready to receive him for this purpose. Given this level of co-operation, if a photograph, fingerprint or other confirmation of identity had been required by the investigators, there seems to be no reason to infer that the respondent would not have been equally co-operative in the provision of such items. There is no evidence that such matters were considered to be required or in issue at any time, let alone that the respondent has failed to provide anything that might have been reasonably required of him in this respect.
28. In any event, such identification material is not actually necessary for the issue of a valid European arrest warrant, and the means of identification actually referred to in the warrant, namely a statement of the grandmother of the respondent, was presumably available to the United Kingdom authorities at all relevant times. Consequently, it appears that the speed of administrative action once again fell short of reflecting a pressing urgency in dealing with this matter. In my view, there is no reason why all of these steps could not have been completed in a further twelve month period after the respondent had been identified and located. Therefore, the culmination of this entire process should have occurred by the end of 2013 at the very latest, which would have allowed a generous period of between two and three years from the receipt of the initial complaint for all necessary steps to follow thereafter.
It may also be observed that nothing said or done by the respondent contributed in any conceivable way to the stated difficulties on the part of the United Kingdom authorities with issues of location or identification.
29. In the circumstances, administrative delay in this case is such that it considerably dilutes the otherwise strong public interest in rendition. The result is that the remaining public interest in rendition is moderately strong, at the very highest. This diluted public interest allows for the conduct of a proportionality exercise as between that public interest and the private interests of the respondent.
Private Interests
30. The respondent’s initial position in relation to his private interests is as set out in his first affidavit of 2nd November, 2015. It is clear from that affidavit that the respondent has lived most of his life in this jurisdiction, save for the relatively short period during which it was alleged that he committed the offences in question in the United Kingdom. Furthermore, the respondent does not fall into the category of person who has left the requesting jurisdiction in circumstances where he knew or ought to have known of the existence of a criminal conviction or criminal investigation, or under some other form of legal cloud. He has resided openly in the Dublin area for many years after his return from the United Kingdom. He is currently working and earning a reasonable salary. He is responsible for the financial and other support of a significant number of children, one of whom has a particular condition that requires regular attendance at a clinic. There are some minor medical concerns surrounding his mother.
31. I doubt whether these matters are so unusual or burdensome that proper respect for the respondent’s family life or that of the persons for whom he is responsible would compel a finding that a moderately strong public interest in surrender was outweighed by such considerations. The first affidavit does not prove any unusual or noteworthy consequences that might arise from surrender in the circumstances set out therein. The matters set out therein could be fairly characterised as being within the ordinary set of consequences that might flow from surrender. However, one of the pitfalls of administrative delay in seeking surrender is that the passage of time can permit adjustment of the balance between public and private rights in a manner which is adverse to the interests of the requesting State. Recent developments in the life of the respondent and his family demonstrate clearly how this is so.
32. By a further affidavit dated 4th February, 2016, the respondent deposed to the commission of a very serious sexual assault on one of his daughters by a number of individuals on 25th January, 2016. He states that this teenage girl was taken to a sexual assault treatment unit for assessment, and was subsequently interviewed by specialists. He also states that this case is being actively handled by a named Sergeant and Inspector and he understands from discussions with these officers that a number of individuals have been arrested in connection with the alleged assault, and one person has made admissions. He concludes by stating that these matters have placed a great strain on all of the family and that it is his wish and need to remain in the jurisdiction to support his daughter in her difficulties.
It is sufficient to note that dealing with the consequences and impact of such events would represent a significant challenge for any parent of a teenage girl, especially when there are siblings who would be old enough to grasp the import of such happenings.
Balance between competing interests
33. In my view, the consequences of this recent development are sufficiently extraordinary in nature and burdensome in effect so as to tip the scales in favour of refusing his surrender. The unnecessary and inadequately explained administrative delay in processing the complaint in this case compounded a reasonably lengthy period of complainant delay. Speedy action on a stale complaint reduces the chance of an adverse shift in the balance of interests. The balance between competing public and private interests must be assessed at the point in time when surrender is to occur. In the new circumstances pertaining to the respondent and his family, I am forced to the conclusion that the respondent has demonstrated that the existence of harmful consequences, peculiar to him, which are of such significance as to outweigh the moderately strong public interest in ordering his return. In other words, the pressing need of the respondent to deal with recent developments in his family life outweighs any demonstrated or urgent need on the part of requesting authority to pursue matters said to have occurred over two decades ago. Meaningful respect for his family life dictates that he should be allowed to deal with these developments in person, unless there is a weighty reason to the contrary. A sufficiently weighty countervailing reason has not been proved, for the reasons set out above. If the respondent had been processed with reasonable dispatch once the initial complaint surfaced, recent family developments could never have entered the surrender analysis. The absolute period of administrative delay may not be at the highest end of the scale, but such periods are not inherently long or short, but are categorised by reference to the nature and significance of the consequences thereof. Unfortunately for the applicant in this case, moderate administrative delay ultimately fell to be weighed against very grave family circumstances arising during the relevant period of delay.
34. I therefore decline to order the surrender the respondent on the basis of the delay objection.
(NOTE: By order of 7 April 2016, it was certified that this was a suitable case for appeal to the Court of Appeal pursuant to the provisions of s.16 (11) of the Act.)
Appearances
For the applicant: John D. Fitzgerald, (instructed by the Chief State Solicitor).
For the respondent: Patrick McGrath SC, Marc Thompson Grolimund, (instructed by John O’Leary & Co., Solicitors).
