THE SUPREME COURT
IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003 (AS AMENDED)
THE MINISTER FOR JUSTICE AND EQUALITY
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court will grant leave to appeal against a judgment and order of the Court of Appeal dated the 12th January, 2017.
1. The applicant to this Court, Piotr Pawel Skiba, will henceforth be referred to as “the applicant”. He was the subject of a European Arrest Warrant issued by the Republic of Poland, dated 21st March, 2016. This required him to serve two sentences of imprisonment, one of 9 months duration, and one of 1 year and 6 months duration, following his conviction for certain offences.
2. The case has a considerable procedural background. The appellant unsuccessfully contested his surrender in proceedings before the High Court at a hearing for the purposes of s.16 of the European Arrest Warrant Act, 2003 (“the Act of 2003”). On the 1st December, 2016, the High Court, (Donnelly J.), made an order for his surrender under s.16(1) of the Act of 2003. The appellant was remanded in custody. No issue arises directly from this order.
3. The default position under the Act of 2003 is that a surrender order made under s.16(1) comes into effect 15 days after it is made (para. 6, section 16(3)), and actual surrender must take place within a further 10 days (s.16(3)(A)). There is, however, provision in the legislation (s.16(5)), which allows for a new surrender date to be fixed exceptionally outside of the 10 day default period provided for in sub-section 3(A), where the High Court is satisfied this is required, because of circumstances “beyond the control” of the State, or the issuing state concerned, the person was not surrendered within the time for surrender under sub-section 3(A), or as the case may be, will not be so surrendered.
4. The primary order made by Donnelly J. on the 1st December, 2016, which authorised the surrender of the applicant under s.16(1) of the Act of 2003, was accompanied by ancillary orders, also made under s.16 of the Act. These covered two contingencies. First, should the applicant not be surrendered before the expiration of the time for surrender under s.16(3)(A), he should be brought before the High Court once again, as soon as practicable after that expiration. Alternative, if it appeared to the Central Authority in the State that, because of “circumstances beyond the control of the State, or the issuing state concerned”, the applicant would not be surrendered on the expiration of the time for surrender provided for under s.3(A), he should come before the High Court once again before that expiration.
The Attempted Surrender
5. The order for surrender having been made on the 1st December, 2016, the Irish Central Authority for the European Arrest Warrant made arrangements with the relevant Polish authorities for an actual surrender to be effected on the 22nd December, 2016, which was within the 10 day default period provided for in s.16(3)(A) of the Act of 2003. The envisaged mode of actual surrender was that the applicant would be placed on a commercial airline flight from Dublin airport to a destination in Poland, scheduled to depart on that date, and he would be accompanied on the flight by police officers from the issuing state, who would have travelled to Ireland in advance for the purpose of so accompanying him.
6. On the nominated date, the applicant was brought from Cloverhill Prison to Dublin Airport. The gardai met their Polish counterparts. But, the applicant refused to proceed beyond the departure gate. The gardai concluded that the applicant could not be brought on board without the use of more than minimal force, and the captain of the plane decided he did not want the applicant on the plane. The attempt to surrender him was abandoned on that date. The applicant was returned to Cloverhill Prison. On the following day, the 23rd December, 2016, the applicant, in pursuance of the ancillary direction given by Donnelly J. under s.16(4)(c)(ii) of the Act of 2003, was brought before the High Court.
7. Section 16(5) of the Act of 2003, provides:
The Application to the High Court under s.165(a)(i) and 11 of the Act of 2003
“Where a person is brought before the High Court subject to ss. (4)(c) the High Court shall:
(a) if satisfied because of circumstances beyond the control of the State, or the issuing state concerned, the person was not surrendered within the time for surrender under ss. (3)(A), or, as the case may be, will not be so surrendered:
(b) in any other case order that the person be discharged.
(i) with the agreement of the issuing judicial authority, fix a new date for the surrender of the person, and
(ii) order that the person be detained in a prison (or, if the person is not more than 21 years of age, in a remand institution), for a period not exceeding 10 days after the date fixed under sub-paragraph (1) pending the surrender, and
8. Before the High Court (Humphreys J.), counsel for the Minister applied for orders under s.16(5)(a)(i) and (ii) respectively, of the Act of 2003. This would have permitted a new date for surrender. This application was opposed. Counsel for the applicant applied to the High Court to discharge his client under s.16(5)(b). The High Court judge was satisfied on the evidence that because of the circumstances “beyond the control of the State”, the applicant could not be surrendered within the time for surrender provided for under s.16(3)(A). The High Court judge held that the evidence before him established, first, that at the time the surrender order was made, the applicant had given no indication concerning his alleged fear of flying. Second, that no medical evidence had been proffered in support of the claimed fear. Third, that a phone call from the applicant’s solicitor had not been sufficient to put the State on notice of a potential problem, or to render it foreseeable that he might refuse to board the aircraft. This, despite correspondence submitted in evidence between the Polish authorities and the Irish Central Authority, was insufficient to support the phone call which had been made by the applicant’s solicitor. Inter alia, the correspondence conveyed that the applicant might resist boarding a “commercial aircraft” resulting in the pilot refusing to allow him on board. In the circumstances, the High Court judge was prepared to grant the order sought by the Minister, and fixed the 5th January, 2017 as the new surrender date, the issuing judicial authority having indicated in advance its agreement to the proposed new date. The applicant was further remanded in continuing custody pending his surrender. Subsequently, an appeal was brought against the judgment and order of the High Court dated the 23rd December, 2016, granting the application of the respondent for orders under s.16(5)(a)(i) and (ii).
The Court of Appeal
9. The Court of Appeal judgment was delivered on the 12th January, 2017. This pre-dated the judgment of the Court of Justice in the Vilken case. The Court of Appeal (Ryan P., Mahon J. and Edwards J.) accepted that the only evidence before the High Court judge, beyond the factual description of what had happened at Dublin Airport on the 22nd December, 2016, was garda evidence concerning the communication that had been received from the applicant’s solicitor. That communication did not convey the extent or degree to which the applicant might be effected by an alleged fear of flying. It did not say that the applicant would be unable to travel by air, or that he might refuse to board an aircraft. Nor did it give any indication that the applicant’s fear of flying had ever prevented him from flying in the past. Moreover, no medical evidence had been adduced in support of the claimed fear of flying. The authorities were not told the applicant had a phobia in the medically, pathological, or psychological sense, or how it might manifest itself or effect him. The information communicated was limited to advising Sergeant Kirwin that the appellant had a fear of flying. Furthermore, the court accepted that the garda testimony to the effect that the claim of fear of flying should be treated with scepticism as it had been raised very late in the day without any detail of supporting evidence. The garda concerned, Detective Sergeant Kirwin, had previous evidence of hundreds of persons being surrendered by air, with the overwhelming majority of them going according to plan, and with the persons concerned boarding the aircraft without resistance. The court held that this was entirely credible evidence. Due diligence would require only that fear of flying be assessed with reference to the details provided concerning the degree to which the claimed fear effected, or was likely to affect, the sufferer, how it had effected him in the past, and any professional or medical help availed of, or being availed of, in respect of it. There were simply no details provided in this case, beyond a bald statement made very late in the day that the applicant had a fear of flying. The information was peculiarly within the knowledge of the applicant and his advisers. The onus was, therefore, on them to proffer and adduce such evidence to the authorities. Despite this, the applicant did not offer any evidence himself, nor was any supporting material furnished. Neither the applicant nor his solicitor gave evidence before Humphreys J. The information communicated by the solicitor on the 12th December, was bald and non-specific. Thus, the Court of Appeal concluded that the High Court judge’s decision had been the result of an application of reasonable and normal due diligence in the assessment of the evidence before him. It was not a situation which required “heightened due diligence”, such as might arise where a previous attempt to effect transport by air had failed due to disruptive behaviour by the appellant. The court’s decision was, therefore, justified on the evidence it had before it. The Court of Appeal held that the correspondence did not indicate an acceptance by the Central Authority that it was reasonable to foresee that the applicant would not voluntarily board the aircraft. Rather, it indicated that an acceptance of such a proposition “could be argued on his behalf”.
10. The Court of Appeal concluded that it was not for the Central Authority to make any determination regarding the risk. Rather, the person required under the statute to assess whether the circumstances advanced, as constituting force majeure, or “circumstances beyond the control” of the relevant authorities, was the High Court judge.
11. Prior to any other consideration, it must be pointed out that the Minister sought an order of surrender from the High Court, which order has now been made, and the applicant was surrendered to Poland on the 14th January, 2017. There is now, therefore, no live issue between the parties. In the circumstances, the question of whether the applicant should have been surrendered to Poland, on foot of the European Arrest Warrant, is not a justiciable question. The Court is of the view that the matter is moot.
12. The Court’s conclusion in relation to mootness is reinforced by the fact that insofar as it is asserted on behalf of the applicant that an erroneous application of the law had resulted in an unlawful surrender, and unlawful deprivation of liberty, it is to be noted that the applicant was surrendered to Poland in order to serve a sentence of imprisonment. The applicant will be given credit for all such time spent in custody in this jurisdiction, and while in transit to Poland. It has not been advanced on behalf of the applicant that his detention in Poland is rendered unlawful by virtue of the events which transpired in this jurisdiction. Consequently, the Court is of the view that the applicant has no interest which could be effected by the outcome of the appeal. To that extent the appeal could be seen as moot.
The Vilken Case 640/15
13. There is, however, a residual and important issue. On the 24th November, the Court of Appeal referred the matter for preliminary ruling to the Court of Justice, under Article 267 TFEU. Before the Court of Appeal was an application under the European Arrest Warrant Act, 2003, in the case of one Thomas Vilken. The circumstances of the case were somewhat similar, although, arguably, distinguishable. In the case of Mr. Vilken, the authorities made two failed attempts to surrender Mr. Vilken to the Lithuanian authorities. The High Court held that it lacked jurisdiction to hear the application brought on behalf of the Minister for a third attempt at surrender, and ordered Mr. Vilken’s release. The Minister for Justice & Equality brought an appeal against that decision to the Court of Appeal, which decided to stay the proceedings and refer questions to the Court of Justice. These questions, inter alia, concerned whether Article 23 of the Framework Decision allows for an agreement for a new surrender date on more than one occasion, and the meaning of “circumstances beyond the control of the returning state”. On the 27th October, 2016, the Advocate General delivered his Opinion on the issue, wherein he expressed views as to the correct interpretation of the terms “beyond the control” of the state, and “force majeure”. This Opinion was based on divergences of language contained in the various language versions of the Framework Decision. However, in the High Court judgment, delivered by Humphreys J. took a different view from the Advocate General’s Opinion, and instead applied what was termed the “common law” understanding of the term “force majeure”. It is arguable that this understanding is now at variance from the decision of the Court of Justice which was delivered on the 25th January, 2017, after the judgment of the Court of Appeal. (See particularly paragraphs 56, 58 to 60, 65 to 74). The decision of the learned High Court judge appears to have been upheld in its entirety by the Court of Appeal in its decision delivered on the 12th January, 2017, prior to the decision of the Court of Justice. Accordingly, the Court will grant leave, and determine there is one single issue to be determined, viz. “was the Court of Appeal correct in its determination of the law applicable in the case of the applicant, in light of the subsequent decision of the Court of Justice in Vilken Case 640/15?”
And it is hereby so ordered accordingly.