|Minister for Justice Equality and Law Reform -v- Sliczynski|
| IESC 73|
Supreme Court Record Number:
High Court Record Number:
|2007 77 EXT|
Date of Delivery:
Composition of Court:
|Murray C.J., Macken J., Finnegan J.|
|Dismiss appeal in respect of 3 convictions. Allow appeal in respect of |
conviction rendered 'in absentia'.
Link to Judgment
THE SUPREME COURT
THE MINISTER FOR JUSTICE, EQUALITY AND
Judgment delivered the 19th December 2008 by Macken, J.
This is an appeal by the respondent/appellant from the judgment of the High Court (Peart, J.) of the 3rd October 2007 and the order made thereon on the 11th October 2007 by which the learned High Court judge, being satisfied that there were no grounds pursuant to the European Arrest Warrant Act 2003 upon which he should refuse to do so, ordered that the appellant be surrendered to Poland on foot of a European Arrest Warrant issued on the 14th June 2006.
The Notice of Appeal raises four principal grounds which are:
(a) That the learned High Court judge erred in law in admitting into evidence unsworn correspondence in the form of letters sent by post and by fax from Poland in contravention of the rules of evidence.
(b) That the High Court erred in law by misapplying the onus of proof in s.10 of the European Arrest Warrant Act 2003, as amended.
(c) That the learned High Court judge erred in finding that the appellant had fled Poland within the meaning of s.10(d) of the European Arrest Warrant Act 2003, as amended, and
(d) That the learned High Court judge erred in deciding that the Polish authorities were not obliged to provide an undertaking pursuant to s.45 of the European Arrest Warrant Act 2003.
This last ground was not pursued at the hearing.
The appellant was arrested on a European Arrest Warrant (“the Warrant”) endorsed in April 2007. He objected to his surrender on several grounds, inter alia, that he did not fall within the terms of s.10 of the European Arrest Warrant Act 2003 (as amended) (“the Act of 2003”), and that his surrender was prohibited by s.45 of that Act, and was not authorised by s.37.
According to the Warrant itself, the appellant, who was born on the 25th August 1984, was wanted in connection with four “enforceable decisions”, that is to say judgments or convictions against him dated between January 2004 and June 2005, and in respect of which terms of imprisonment were imposed, varying from one year and ten months to two years. No issue was taken as to the identity of the appellant.
The learned High Court judge found that the surrender was sought for convictions in respect of which the appellant is obliged to serve periods of imprisonment imposed on him by courts in Poland, and that the offences correspond to offences within the jurisdiction.
The major ground of this appeal concerns the correct interpretation of s.20, and the application of s.10 of the Act of 2003 and in particular, the phrase “and who fled from the issuing state”. Section 10 reads, in its relevant part, as follows:
“Where a judicial authority in an issuing state duly issues a European Arrest Warrant in respect of a person
(c) who has been convicted of but not yet sentenced in respect of an offence to which the European Arrest Warrant relates, or
(d) ... on whom a sentence of imprisonment or detention has been imposed in respect of an offence to which the European Arrest Warrant relates and who fled from the issuing state before he or she commenced serving that sentence or completed serving that sentence, that person shall, subject to and in accordance with the provisions of the Act and the Framework Decision, be arrested and surrendered to the issuing state.” (emphasis added)
As the learned High Court judge correctly pointed out, if it is established that the appellant is not a person who comes within the above section, then the High Court cannot make an order for his surrender.
Section 20 of the Act of 2003 reads as follows:
20.—(1) In proceedings to which this Act applies the High Court may, if of the opinion that the documentation or information provided to it is not sufficient to enable it to perform its functions under this Act, require the issuing judicial authority to provide it with such additional documentation or information as it may specify, within such period as it may specify,
(2) The Central Authority in the State may, if of the opinion that the documentation or information provided to it under this Act is not sufficient to enable it or the High Court to perform functions under this Act, require the issuing judicial authority to provide it with such additional documentation or information as it may specify, within such period as it may specify.
(3) In proceedings under this Act, evidence as to any matter to which such proceedings relate may be given by affidavit or by a statement in writing that purports to have been sworn—
(a) by the deponent in a place other than the State, and
(4) In proceedings referred to in subsection (3), the High Court may, if it considers that the interests of justice so require, direct that oral evidence of the matters described in the affidavit or statement concerned be given, and the court may, for the purpose of receiving oral evidence, adjourn the proceedings to a later date”.
(b) in the presence of a person duly authorised under the law of the place concerned to attest to the swearing of such a statement by a deponent, howsoever such a statement is described under the law of that place.
The Background Facts:
According to the background facts set out in the judgment of the High Court, and the veracity of which has not really been challenged in this appeal, the following is the position. Of the four offences, the appellant was convicted on the first three in his presence. In respect of the fourth offence, for which he was convicted on the 28th June 2005, that conviction was rendered in absentia. According to the High Court judgment, the Polish court, on becoming aware of matters surrounding the earlier sentences which had been suspended on certain terms, shortly thereafter lifted the suspensions because the terms thereof had been breached. In consequence, the surrender of the appellant is sought to serve sentences in respect of the three earlier sentences and the further final one.
The appellant swore two affidavits in which he averred that he was aware of the first three convictions against him when he left Poland in April 2005 having been present in court when convicted. He said, however, that he left Poland lawfully, after the suspensions were in place, and travelled to Ireland and had resided here since then. As to his reasons for coming to Ireland, he stated “ …the reason I came to Ireland was to start a new life. It had nothing to do with my convictions or suspended sentences”. When he left school in 2003 he said he was 19 years old, he accepted that he had got into trouble which resulted in the first three convictions referred to in the warrant, that he had never been in trouble prior to that time, and wanted to come to Ireland to start a new life and avoid “bad company”. If he had remained in Poland he could look forward merely to low paid work, the risk of bad company and perhaps ending up in jail. The appellant also swore that he was unaware of any further case against him in relation to the offence for which he was convicted on the 28th June 2005 in absentia, and that he was not informed, nor made aware of any trial date in respect of the same before he left Poland in or around April 2005. He said he did not leave Poland to avoid any pending court case against him, and that at the time he left he was unaware of the possibility of any further case against him.
According to the judgment, the applicant exhibited, on affidavit, certain correspondence received from the District Court in Warsaw, in which it was explained that the suspended sentences were imposed on the appellant subject to certain conditions. There was also confirmation that the conditions were not complied with, and that the court had, on becoming aware of this, lifted the suspensions. I will deal with this matter further in the course of the judgment.
The Admissibility Issue:
Before considering the application of s.10 and the question whether the learned High Court judge was correct in finding that the appellant had fled Poland within the meaning of that section, it is necessary first to determine whether the learned trial judge was correct to admit the above correspondence, since it is the content of this correspondence which lays the foundation also for his finding that the appellant had fled Poland
Details concerning the suspension of the first three sentences and, more particularly, in relation to the lifting of the suspensions, were not contained in the warrant as originally furnished by the issuing judicial authority. These details were presented to the High Court by means of letters exhibited in affidavits sworn by Anthony Doyle on the 24th July 2007 and on the 28th September 2007, on behalf of the respondent to the appeal, the letters being furnished pursuant to information sought by the respondent. Insofar as the relevant material is concerned, the admission of which is objected to, this is referred to in paragraph six of the first affidavit, at which Mr. Doyle swears as follows:
“6. Requests for further information were made by the Minister on the 16th and 17th July 2007 arising from the amended points of objection which were served by fax and received ... on the 12th July 2007. The issuing judicial authority replied on the 23rd July 2007 by letter dated the 20th July 2007, and provided the Minister with extracts from the Polish Code of Criminal Procedure and the Polish Criminal Code. The issuing judicial authority also informed the Minister that the respondent did not have permission to leave Poland at the time he left as he was subject to supervision by the court probation officers. The issuing judicial authority informed the Minister that the terms of the suspension obliged the court to lift the suspensions.”
In a letter exhibited to the affidavit of Mr. Doyle dated the 20th July 2007 sent from the District Court Warzawa-Praga 5th Criminal Department, bearing a reference V Kop 18/06, and referring to “Piotr Sliczynski”, the deputy head of the department, District Court Judge Elzbieta Gajowniczk, stated, inter alia:
In a further letter from the same source and bearing the same reference, dated the 21st September 2007 and exhibited in Mr. Doyle’s affidavit of the 28th September 2007, it is stated:
We would also like to inform you that the wanted person had no right to leave Poland, because in three cases he was submitted to supervision of the court probation officer and he was supposed to inform the probation officer about each change of his place of residence, in particular about his plan to travel abroad.
Conditional suspension of the penalty execution and submission to the supervision of the probation officer obliges the convicted person to maintain contact with the probation officer and to remain at his/her place of residence.
The penalty of imprisonment and its condition of suspension assumes that the convicted person will not commit any offence and will not avoid the supervision of the probation officer.
Since the convicted person did avoid the supervision of the probation officer, consequently the execution of the penalty was ordered.”
The learned High Court judge rejected the submission made by Mr. Barron, Senior Counsel on behalf of the appellant, who sought to exclude reliance upon the aforesaid correspondence on the basis that it constituted hearsay evidence and was therefore inadmissible in this application. The reasons for rejecting the submission can be summarised very briefly. The learned trial judge while accepting that the evidence was not “first hand information”, found that the correspondence exhibited by Mr. Doyle came from the District Judge in Warsaw, the relevant judicial authority. Secondly, he found that under the terms of the Framework Decision, as adopted by the Act of 2003, arrangements between one judicial authority and another judicial authority and communications between those judicial authorities are envisaged to take place. Next, he found that it was not necessary that every document which might emanate from such communications had to be proven in evidence in the same way as might be necessary in adversarial proceedings, the European Arrest Warrant, on the authorities, being a sui generis scheme providing for the surrender of persons between member states, the Framework Decision having been entered into between participating states on the basis of mutual trust between judicial authorities and the legal systems which exist in the participating member states, a fact well known and recognised in judicial decisions in this and other jurisdictions.
“In reference to your letter number 191/45/06 dated September 19th, 2007, I would like to inform you that the penalties of imprisonment to which Piotr Sliczynski has been sentenced to cases IIK 561/02 and K 50/03 were ordered to be executed, because he failed to meet his duties resulting from the supervision of the probation officer.
He failed to contact the probation officer, did not provide his place of residence, and the probation officer received information that the Piotr Sliczynski moved and failed to provide his new address.
In case IIK 145/05 Piotr Sliczynski was sentenced to 2 years imprisonment.
In case IIK 412/03 Piotr Sliczynski was sentenced to serve the adjudicated penalty of imprisonment, because during the probation period he committed minor offences, for which he was sentenced to imprisonment.
In all cases, the correspondence sent to Piotr Sliczynski was not received by him and it was returned to the court with a note that the addressee was not at home.
In none of the cases Piotr Sliczynski provided address for documents serving, and his place of residence was not known.”
The learned High Court judge accepted that if, as the requested judicial authority, it receives information, and that information is such that its authenticity is not in doubt, he was entitled to accept that what was stated in that communication was factually correct. In the circumstances of this case he found that he was entitled to admit the correspondence exhibited by Mr. Doyle, and also to accept the veracity of its contents which had been received in an appropriate format.
In this appeal Mr. Barron, on behalf of the appellant, submits as his main argument that the learned High Court judge was wrong in admitting the correspondence, as it amounted to a breach of the rule against hearsay, and not within any of the exceptions to that rule. He invokes inter alia, the case of Abimbola v MJELR (Unrept’d High Court , 26th July 2005 in which it was stated that “while not strictly criminal proceedings, it has been decided that in extradition [cases] criminal procedure and rules of evidence should apply”. He contends that the learned High Court judge introduced a new exception to the hearsay rule for which no authority can be found. He argues that there are several provisions of the Act of 2005, and as amended by the Criminal Justice (Terrorist Offences) Act 2005, which deal with the admissibility of evidence, such as s.20(3), and submits that no correspondence of the type admitted by the court is permitted, because no attempt has been made to comply with that subsection, which is mandatory and represents, in fact, a relaxation of the ordinary rules of evidence.
Senior Counsel for the respondent, Ms. O’Malley, submits as follows. Having set out the purpose of the hearsay rule, she points to the fact that in Abimbola supra., an extradition case, the question of the admissibility of evidence was not dealt with by the Supreme Court, and the decision of the House of Lords, cited in the latter case, did not relate to the European Arrest Warrant scheme either.
She further submits that in deciding whether the letters exhibited in the affidavit of Anthony Doyle should be admitted in evidence or excluded, the court should have regard to several factors, namely: the documents were created and emanated from the issuing judicial authority to assist the Minster, as the central authority, and the court, to perform the functions vested in them respectively; the cornerstone of the Framework Decision is mutual recognition of judicial decisions and mutual respect and confidence between judicial authorities; the Framework Decision was designed to simplify the procedures in relation to surrendering persons within the European Union; requiring the issuing judicial authority to swear an affidavit would run counter to the foregoing; the authenticity of the documents is not in question, the appellant merely challenging the conclusion that he fled Poland lawfully. Finally, although the appellant swore an affidavit on the 20th September 2007 after the contested documents had been exhibited by Mr. Doyle, he did not in any way dispute the veracity of the information furnished.
Section 20(1) of the Act of 2003 grants to the High Court a right to seek additional documentation or information, which the High Court may specify, from an issuing judicial authority. The basis of this subsection is to ensure that the High Court, as the “executing judicial authority” designated as such under s.9 of the Act of 2003, is in a position to secure all of the necessary information which it might find of assistance in carrying out its functions under that Act and, by implication, pursuant to the Framework Decision. When, in its capacity as the executing judicial authority in the State, it seeks documentation or information it does so from its counterpart, the issuing judicial authority, in the requesting member state. A similar provision is found in s.20(2) in favour of the nominated “central authority”, under the Act, that is to say, the respondent in the present appeal. Both subsections are set out earlier in this judgment. The latter subsection grants a right to the respondent to require the same issuing judicial authority to provide it, as the central authority, with additional documentation or information which it considers appropriate “so as to enable the respondent and/or the High Court” to perform their respective functions under the Act of 2003. These provisions all mirror provisions in the Framework Decision.
It is a well established principle of European Arrest Warrant law that the scheme provided for under the Framework Decision, and in turn under the Act of 2003, is a scheme sui generis, not identical with the former extradition legislation which was itself, according to the case law, sui generis in nature. It is not necessary to cite the cases in which this has been stated, but it does have, as its consequence, that cases concerning the very specific principles or rules relating to extradition, are not always of material relevance to issues arising under the Act of 2003 or the Framework Decision. So also is it well established that the European Arrest Warrant Scheme proceeds on the basis of a high level of mutual respect and confidence existing between the judicial authorities in the subscribing Member States. It is sufficient to refer in that regard to the decision of this court in Minister for Justice Equality and Law Reform v Altaravicius, unreported, the Supreme Court, 5th April 2006, and in particular to the following extract from the judgment of Murray, C.J.:
“As I mention later in this judgment the Act must be interpreted in the light of the terms of the Framework Decision which it implements and with particular regard to the objectives to be achieved. The system or mechanism of surrender created by the Framework Decision applies in all Member States of the European Union. Recital 5 in the preamble to the Framework Decision refers to “… the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences …” It has as its object “… to remove the complexity and potential for delay inherent …” in pre-existing extradition procedures. (Whether, in the light of its structure and the manner in which it has been drafted it will achieve that objective, is another question.) As that Recital, Recital 6 and Article 1.2 make clear, it is founded on the mutual recognition of judicial decisions and judicial cooperation within the European Union. Recital 10 emphasises “the mechanism of the European Arrest Warrant is based on a high level of confidence between Member States”.
In the relationship which may exist between the High Court and/or the respondent pursuant to s.20 of the Act of 2003 and the issuing judicial authority, exchanges such as those in the present case are, in my view, to be considered as operating on the same high level of confidence and mutual trust since these exchanges between the judicial authorities constitute an integral part of the overall scheme of the European Arrest Warrant. This must have as a consequence that when an issuing judicial authority is asked for additional information pursuant to either of the aforesaid subsections of s.20, the exchanges must be accorded the appropriate mutual respect. In consequence, it may be assumed that a reply furnished by the judicial authority of the requesting Member State has been fully and properly prepared by an appropriate responsible person, and will include true and accurate responses to the information or documentation sought.
If therefore there were nothing further in s.20 than subsections (1) and (2), no difficulties could arise in my opinion in the High Court having admitted into evidence the information exhibited in Mr. Doyle’s affidavit and having accepted the veracity of the contents of that information, transmitted from the Warsaw District Court as the issuing judicial authority in the present case.
Section 20 appears to me however, to provide for two separate situations, subsection (1) and (2) being dealt with together and covering the same type of information, and subsections (3) and (4) being equally intimately linked one to the other. Each pair of subsections cover related, but quite different, issues. Subsection (3) concerns the manner in which “evidence” may be admitted in proceedings under the Act of 2003. It provides that such evidence may be given by affidavit or by a sworn statement (howsoever described) if the deponent is outside the State, and if this is done before an appropriately authorised person. Subsection (4) refers only to matters arising from the affidavit or sworn statement referred to in subsection (3). Neither subsection (3) or (4) makes any reference to, and in no way affects, subsections (1) or (2). Indeed subsections (3) and (4) could have been drafted as a separate stand alone section altogether. The Act of 2003 makes a clear distinction in s.20 between “information or documentation” on the one hand, used only in s.20(1) and (2), and “evidence” used in s.20(3) and (4).
No other party within or outside the proceedings stands in the same relationship to the issuing judicial authority save those parties mentioned in Articles 8 or 9 of the Framework Decision. They are each a competent authority. In the present case the Executing Judicial Authority (section 20(1)) and the Central Authority (section 20(2)) respectively, are so designated or recognised under s.9 and s.6 respectively of the Act of 2003 as the appropriate competent authorities mentioned in the above articles. No distinction is drawn in the Act of 2003 between the status of such additional information when sought by the High Court itself as part of its own enquiry, or by the respondent under the respective subsections. The intention of each subsection is to enable the competent authorities to fulfil their statutory functions, and in turn to comply with the provisions of the Framework Decision.
In such circumstances, could it be said that if the High Court itself requests additional information of the issuing judicial authority pursuant to s.20(1) that information can only be admitted by the High Court if it is in the form contended for by Mr. Barron. I do not think so. So also could it not be so required if sought by the Central Authority, the respondent to the appeal.
On the other hand, it is envisaged under s.20(3) that a respondent to an application for surrender, or even the applicant, might wish to furnish evidence to an executing judicial authority, in this case, the High Court. A simple example in the present case might be an affidavit from the appellant’s Polish lawyer contesting the veracity or the effect in Polish law of the content of the exhibited letters, or furnishing additional material which might seek to alter its contended for meaning. The mother of the appellant might wish to give evidence of events surrounding delivery of notices to her home, addressed to the appellant, including those concerning the trial leading to the fourth conviction. The respondent to the appeal might choose to introduce evidence of Polish law from an independent lawyer, if the content or effect of the correspondence from the issuing judicial authority were challenged. All such evidence may be admitted if in accordance with s.20(3).
On a correct interpretation of s.20 of the Act of 2003, I am satisfied that only documentation or information which comes within s.20(1) or (2) enjoys the particular status of being admissible without having to be proved in the usual way, or pursuant to s.20(3). I am satisfied that this is the intention of the subsections for the specific purpose of compliance with a statutory function, and the obligations flowing from the Framework Decision.
In light of the foregoing, the information contained in the letters exhibited to the affidavits of Mr. Doyle was properly admitted by the learned High Court Judge, and the content of that information must be accepted at face value, there being no challenge to its veracity.
The Fleeing Issue:
Notwithstanding this determination, the question still remains whether, as contended for on behalf of the respondent, the learned High Court judge erred in finding that the appellant fled Poland within the meaning of S.10 of the Act of 2003. The learned High Court judge found that the personal motivation deposed to in the appellant’s affidavit was not something that could be examined by the respondent to this appeal. Even if it were accepted that the only motivation the appellant had was to begin a new life, the court could not overlook the fact that by leaving Poland, the terms lawfully imposed upon him as a condition of the suspended sentences were breached, thereby resulting in those suspensions being lifted and the sentences of imprisonment “kicking in”. That action had resulted in his avoiding justice. He found that the facts averred to by the appellant were not such as to come within the concept of “innocent fleeing” such as had existed in the case of MJELR v Tobin (unreported), the Supreme Court, 25th February 2008 or of a lawful departure from Poland.
Mr. Barron, contends however, that the learned High Court judge erred in law in applying s.10 of the Act. He quotes the learned High Court judge as stating that “if it can be shown the respondent is not a person who comes within either paragraphs (a) (b) (c) or (d) of s.10 then the court’s jurisdiction to deal with this matter and make an order does not exist”. However the learned High Court judge continued “I have no doubt at all but that it would have been possible for the respondent to obtain copies of the relevant court documents, should he have requested them, so that he himself could discharge the very heavy onus which lies upon him to make out the factual background necessary to support his contention that he left lawfully”. Counsel argues that there is an overriding presumption that the fundamental rights of the requested person will be respected, if surrendered, but no presumption that the application is one falling within the parameters of the legislation. The ordinary rules of evidence apply, and it is for the party making the application to prove his case. If the Minister is unable to satisfy the High Court that the appellant falls within the ambit of s.10 then the High Court has no jurisdiction to make an order for surrender. Section 10 does not impose any onus on the appellant to establish that he does not come within the meaning of the section.
Mr. Barron submits further that the learned High Court judge erred in finding, as a matter of fact, that the appellant had fled Poland within the meaning of s.10(d) of the Act of 2003, in the face of the averment in his affidavit sworn on the 17th July 2007 that he was unaware before he left Poland of any charges in being against him in relation to the offence in respect of which he was convicted in absentia on the 28th June 2005. In the alternative, he argues that if the appellant left the requesting member state illegally, in the sense of not complying with the conditions attaching to a suspended sentence, such illegality cannot be equated to the word “fled” in s.10(d), because it could not capture persons who were unaware that they were not permitted to leave the country. In that regard the appellant relies on the decision of the High Court (Peart, J.) in MJELR v Tobin, supra., in which the learned High Court judge stated:
“According to the Conclusions of the Tampere European Council of 15 and 16 October 1999 and in particular point 35 thereof, the formal extradition procedures should be abolished among the Member States in respect of persons who are fleeing from justice after having been finally sentenced and extradition procedures should be speeded up in respect of persons suspected of having committed an offence.” (emphasis added)
While the Framework Decision may indicate that it was intended to capture persons who had been convicted but not yet sentenced, for example in recital 5, Mr. Barron contends that the only provisions which address persons who are fleeing justice refers to only two categories of requested persons, and that this excludes a person who has not served any part of the sentence. He says there was no sentence of imprisonment to be served when the appellant left Poland. In Mr. Barron’s submission, the approach adopted in the Tobin case was constructed by the High Court so as to limit its application to a person who “fled” after conviction and final sentence, and applies equally in this case.
The only evidence before the court on the part of the appellant as to his motivation for leaving Poland is that contained in his affidavits. He avers, it is fair to say, that he had a particular reason for coming to Ireland which can be briefly described as being twofold, namely, to better himself financially, and secondly thereby to avoid or make it less likely that he would get into trouble, or fall in with an unsuitable group, with whom he freely admits he had been involved. He avers also that he did not flee Poland to avoid serving a sentence, having no reason to believe he was sought in relation to the charge which led to the fourth sentence, and the lifting of the earlier suspensions. I should point out however that, contrary to Mr. Barron’s assertion, there was no evidence before the High Court that the appellant was unaware that he “was not permitted to leave Poland”.
The information available to the High Court from the issuing judicial authority consisted of the material which has been the subject of my earlier determination as to admissibility. It sets out in clear and unchallenged terms the following factors concerning the sentences imposed and the terms of the suspension thereof:
(a) There were four sentences in all.
(b) In respect of three of these, the appellant was sentenced in his presence. In the case of the fourth, for the further reasons explained in the information furnished, it was rendered in absentia.
(c) The first three sentences were suspended, in accordance with Polish law, and those suspensions were subject to conditions, including maintaining contact with the probation officer and being subject to supervision, residing at a particular address, and informing the probation officer of each change of residence, and in particular of any plan to travel abroad.
(d) No notification was given by the appellant to the probation officer or to any other appropriate person of an intention to leave Poland and come to Ireland, and no address in Ireland was furnished.
As to the first three sentences, the learned trial judge was therefore faced with the appellant’s averments as to his subjective motivation and the information, summarised above, as determined from the material furnished by the issuing judicial authority in Poland. I do not consider that the subjective motivation of an appellant, as sworn to on affidavit, can be ignored, but nor do I consider it to be determinative of the question whether he “fled” Poland, within the meaning of Section 10(d) of the Act of 2003, which it is as well to repeat here. It states:
“Where a judicial authority in an issuing State duly issues a European Arrest warrant in respect of a person
(d) … on whom a sentence of imprisonment or detention has been imposed in respect of an offence to which the European Arrest Warrant relates and who fled from the issuing State before he or she commenced serving that sentence or completed serving that sentence, that person shall, subject to and in accordance with the provisions of the Act and the Framework Decision, be arrested and surrendered to the issuing State”
It is true that, as with other sections of the Act of 2003, this subsection is not quite as fully worded as one would wish. It might have included “whether or not the sentence had been at some time suspended”, for example, but it does not. However, I am not at all convinced that, in order to give an ordinary meaning to the words in the subsection, it is necessary to strain the language of the phrase “and who fled from the issuing State before serving the sentence”, to fit circumstances which may often arise, such as those in the present case, where a sentence has been suspended, but the suspension is later lifted. Those words apply equally to such facts.
All of the factors germane to whether a person can be said to have fled must be taken into account. That includes the motivation of the person sought to be returned to the requesting Member State, which is almost inevitably likely to be a subjective motivation. So also the court must take into account other material factors, such as whether the sentence was suspended, and where the suspension of the sentence was subject to terms, whether those terms were known to the convicted person and whether those terms were complied with. It is telling to recall that the appellant admits he was convicted and sentenced on the first three charges in his presence, and has not challenged the content of the letters exhibited in Mr. Doyle’s affidavit. He must therefore be understood to have known and appreciated the significance of the terms attaching to the suspension of those sentences.
The court then must determine whether, objectively speaking, bearing in mind all of these factors, it can be reasonably concluded that the appellant “fled” within the meaning of the subjection. If it were the case that the subjective motivation, as averred to on affidavit, had to be accepted as being conclusive of the question whether a person fled within the meaning of the section, it seems to me that this would always or almost always “trump” any information or material factor presented to the Court and upon which it could be objectively found that a person had fled the requesting state. In the present case, it was a term of the suspension – not denied by the appellant – that he would reside at a particular place, would notify the probation officers or responsible authority of his whereabouts and, in particular, would notify it of any intention to leave Poland. It is axiomatic that if the terms and conditions of a suspended sentence are not met, there is a likelihood of the suspensions being lifted and the sentences having to be served.
As to the present case, if, having regard to the information on the terms of the suspension in Polish law, it is objectively established that there was a deliberate decision to leave Poland in breach of the very terms as to residence and notification known to the appellant, even if the subjective motivation for leaving is stated to be different, it is reasonable for a trial judge to conclude that the appellant has done so in circumstances which make it impossible for him to serve the sentence imposed. If leaving the requesting member state was done in circumstances where, as here, the terms and conditions attaching to the suspension are not denied, and therefore it must be accepted that they were both known and appreciated by the appellant, but were breached, it seems to me to follow that the appellant has, objectively speaking, placed himself in a position that he has “fled” the issuing Member State, in the sense of having left Poland in circumstances which make it impossible for the sentence to be served, and is a person who “fled from the issuing State before he commenced serving that sentence”.
I do not consider that the learned High Court judge altered the onus of proof required of an applicant in s.10 of the Act of 2003. Rather his judgment, while perhaps slightly infelicitously worded, must be understood in the sense that, having had all of the information from the issuing judicial authority which enabled him to find that the appellant had, on the basis of that information when viewed objectively, fled Poland, the appellant had not himself chosen to do any of the several things he might have done to counter that inevitable conclusion, which flowed from an examination of the information provided. When speaking of the heavy onus, I think it fairer to say that this concerned, not a legal onus on the appellant to establish in law something he was not obliged to establish, but rather an onus on him having regard to the information and material furnished in Mr. Doyle’s affidavit, the veracity of which was not challenged in any way by the appellant, to establish that the material furnished did not support its natural conclusion that he had fled.
The learned High Court judge was in the circumstances correct in finding that the applicant had “fled” Poland within the meaning of s.10 of the Act.
The s.45 Argument
The fourth sentence, imposed in absentia, was imposed in circumstances where notification of the trial of the appellant was sufficiently given to him, under Polish law, by service on his mother. Under the provisions of Polish law, there is a right of appeal or a right to set aside that sentence. The learned trial judge found that this latter provision of Polish law was sufficient to comply with the provisions of the Framework Decision concerning trials in absentia when read in conjunction with the provisions of the Act of 2003. I do not agree with that finding, which was confined to the position under Polish law and did not analyse and apply the provisions of s.45 of the Act of 2003, being the relevant applicable provision of the Act, according to Irish law. This issue is dealt with in detail in the judgment of Murray C.J., delivered in this appeal, with whose findings I am fully in agreement, and I do not consider it necessary to add anything further.
I am satisfied that the learned High Court judge was correct also in his finding that there were no grounds upon which he should not surrender the appellant on the first three sentences in accordance with the application made pursuant to the Act of 2003. I would therefore dismiss the appeal and affirm the High Court order, but only in respect of the first three offences.