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THE SUPREME COURT
Murray C.J.
Denham J.
Hardiman J.
Geoghegan J.
Fennelly J.
211 & 212/05
BETWEENTHE MINISTER FOR JUSTICE,
EQUALITY AND LAW REFORM APPLICANT / RESPONDENT -v-
MICHAEL DERMOT McARDLE RESPONDENT / APPELLANT
JUDGMENT delivered the 4th day of November 2005, by Murray C.J.
This is an appeal in which the appellant seeks to set aside the Order of the President of the High Court made on the 27th day of May, 2005 on foot of a European Arrest Warrant directing that the appellant be surrendered to the relevant authorities in the Kingdom of Spain to stand trial on a charge of homicide.
The European Arrest Warrant, issued by a Judge in Spain, had been endorsed by Order of the High Court on 16th November, 2004 and was executed by Sergeant Martin O’Neill on 22nd November, 2004 when he arrested the appellant in Ballyjamesduff, Co. Cavan.
Part of the factual background to this case is that the appellant had been previously arrested on 21st October, 2001 on foot of a provisional warrant of arrest in relation to the same offence issued pursuant to s. 27(1) of the Extradition Act, 1965. He was subsequently released, the request for extradition having been withdrawn. It is not at all clear why this application was withdrawn, the appellant having been refused information on this point, and it was not subsequently pursued under the Act of 1965. In any event the President of the High Court found as a fact that that extradition request was not ultimately pursued pursuant to the Act of 1965 because at the time the State would not extradite one of its own citizens to Spain in the absence of a reciprocal arrangement with Spain. He also noted that such extradition only became possible with the coming into effect of the European Arrest Warrant Act, 2003 on 1st January, 2004.
The European Arrest Warrant issued by the Judge of the Kingdom of Spain relates to an offence of homicide under Spanish law arising from the death of the appellant’s wife on 12th February, 2000. On that occasion the appellant and his wife, together with their children, had been staying at a hotel in Marbella, Spain. The charge in question arises out of circumstances in which it was alleged that the deceased died from injuries sustained in a fall from a fourth floor balcony of the room in the hotel where the appellant and his late wife were staying. Subsequent to the death of the appellant’s wife, he says that he was permitted and authorised by the Spanish authorities to arrange for the deceased’s remains to be returned to Ireland, he also being permitted to return to Ireland, on the basis that no criminal charges were contemplated. The first he knew of an intended criminal prosecution was when he was arrested on 21st October, 2001 on foot of a provisional warrant as referred to above.
Decision
I propose first of all to deal with the two grounds upon which the appellant seeks to impugn the Order of the High Court because of the terms and form of the Order itself.
In the first of these grounds the appellant complains that the High Court Order purports to direct his surrender to the Kingdom of Spain pursuant to s. 16(2) of the Act whereas, any such Order to be made in this case could only be made pursuant to s. 16(1) of the Act. I do not consider it necessary to refer to the details of these two respective provisions because it is common case that the application for the appellant’s surrender was made pursuant to s. 16(1) and, having regard to the manner in which the application came before the High Court s. 16(2) (which only applies where a person has been arrested by virtue of a ‘Schengen Alert’ as defined in s. 14(10), which is not the case here) had no application to the appellant’s case and any Order for Surrender made by the High Court could only be made pursuant to s. 16(1).
Accordingly, it is submitted on behalf of the appellant that the Order is bad on its face and should be set aside. The State submits that the reference to s. 16(2) instead of s. 16(1) of the Act of 2003 in the High Court Order is clearly a slip or error in the Order within the meaning of Order 28 Rule 11 of the Superior Court Rules having regard to the clear terms of the judgment of the learned President in which he expressly dealt with the application before him on the basis of s. 16(1). In turn the appellant submitted that the President of the High Court consciously made the Order by reference to s. 16(2) after he had given an opportunity to counsel for the State to draft an appropriate Order, and therefore it cannot be amended.
As it happens an application had been made by the Respondent to the President of the High Court for an amendment of the Order by substituting therein s. 16(1) for the reference to s. 16(2). As the Order had been the subject of an appeal to this Court the President declined to consider the application on its merits. In my view he had jurisdiction to do so. See the decision of this Court in McMullen –v- Clancy (The Supreme Court, unreported, 31st July, 2002) in which the amendment of a High Court Order by McGuinness J., sitting as a Judge of the High Court, pursuant to Order 28 Rule 11, notwithstanding a pending appeal, was upheld. However the question now is whether the error in question is a fatal flaw in the High Court Order or whether it may be corrected in this Court.
At the outset of his judgment the learned President, for the purpose of examining the issues raised by the appellant in the hearing in the High Court, cited in full s. 16(1) of the European Arrest Warrant Act, 2003. Having done so he then expressly concluded as follows:
“On the evidence before me I am satisfied on the matters mentioned in paragraph 16(1)(a), (b) and (c).”
He then went on to say that he was satisfied that the necessary undertakings had been given as envisaged by ss. 22, 23 and 24 of the Act as referred to in s. 16(1)(d). He then considered the grounds of objection to an Order of Surrender relied upon by the appellant and having rejected all those grounds he concluded that an Order for the appellant’s surrender should be made. It is manifest that in his judgment the learned President had decided that the Order of Surrender should be made under s. 16(1) of the Act of 2003. The judgment is manifestly clear and unambiguous in that respect.
Thus the decision of the High Court was that the appellant should be surrendered to the Kingdom of Spain pursuant to s. 16(1) of the Act of 2003. It is thus equally manifest that there was an error or slip in the Order when it referred to s. 16(2) instead of s. 16(1) and that the Order by reason of that error or slip does not accord with the actual decision of the High Court. Although the learned President took care to ask counsel for the State to submit a draft of the appropriate Order and then adopted it (apparently without objection from counsel for the appellant) that does not take away from its character as an error or slip in the Order having regard to the clear terms of the actual decision of the President set out in the judgment he had previously delivered. In my judgment in McMullen –v- Clancy (The Supreme Court, unreported, 31st July, 2002) (Nem.Diss.) I pointed out that “… there is a fundamental public interest in the due administration of justice which requires that the Order of a court accord with what the court has decided and that the decision of a court should not be thwarted, by an accidental slip or error or clerical mistake”. As I also pointed out in that case the courts have an inherent as well as an express (in the case of Order 28 Rule 11) jurisdiction to amend a final Order. In the ordinary course of events an application would be made to the judge who decided the case to correct an error or slip in the Order but the Courts’ inherent jurisdiction to correct such errors made in Orders, particularly where they are clear and manifest, is not confined to the judge or court from which the error emanated. Indeed there have been cases where such errors have been corrected after a considerable lapse of time such as in two cases referred to in my judgment cited above where corrections where made after a lapse of 19 years and 33 years respectively.
Where a matter comes before this Court on appeal and there is no dispute concerning the terms of the decision as set out in the judgment of the High Court and there is a clear and manifest error in the Order made on foot of that judgment, this Court has, in my view, an inherent jurisdiction, in the interests of the proper administration of justice, to amend the Order so as to accurately reflect the decision made in the High Court. This is necessary so that the appeal can be determined on the basis of what was actually decided rather than on the basis of an erroneous Order. There may be circumstances where this Court, in its discretion, might consider it more appropriate for such an issue to be remitted for decision by the High Court but given the clear and manifest nature of the error in the Order I do not think that this is one of those cases. Therefore in my view this Court should exercise its inherent jurisdiction to amend the High Court Order by substituting a reference to s. 16(1) for the reference s. 16(2) of the Act of 2003 in that Order.
A second ground upon which the appellant seeks to challenge the terms of the High Court Order was that it failed to confirm that some person had been duly authorised by the issuing State to receive the appellant and / or to identify the person duly authorised by the issuing State to receive him. The contention that the Order of the High Court should have named a person authorised by the Kingdom of Spain to take custody of the appellant when surrendered pursuant to it was abandoned in the course of argument but I still find it difficult to follow the reasoning why the Order should be considered infirm because it failed to confirm in some way that some person had been duly authorised specifically to receive the appellant.
For the purpose of this submission the appellant relies on the provisions of s. 16(1) insofar as it provides that when making an Order for the surrender of a person the court may “make an Order directing that the person be surrendered as such other person as is duly authorised by the issuing State to receive him or her …”.
This is precisely what the High Court Order provides. In my view the terms of the High Court Order in this respect complied fully with the obligation on the High Court pursuant to that section when making an Order for Surrender. This ground of appeal must also fail.
Surrender for the purposes of trial
As regards the substance of the application by the respondent for an Order for the surrender of the appellant pursuant to the European Arrest Act, 2003, the primary ground of objection advanced on his behalf was that the relevant Spanish judicial authorities sought the appellant’s return, not for the purposes of a trial on the charge specified in the warrant, but solely for the purpose of continuing a fact-finding investigation of the offence.
There is no doubt, and indeed it is common case, that a person may only be surrendered to another State on foot of a European Arrest Warrant for the purpose of prosecuting him or her for the offence(s) in the warrant – that is to say for the purpose of putting that person on trial. Section 10 of the European Arrest Warrant Act, 2003 provides for an arrest and surrender to a requesting State where a European Arrest Warrant has been duly issued in respect of a person “against whom that State intends to bring proceedings for the offence to which the European Arrest Warrant relates …”. There is of course also provision for the surrender of a person to serve or complete a sentence having fled from the requesting State, but this does not arise in this case.
That the surrender of a person to another State on foot of a European Arrest Warrant is for the purpose of putting that person on trial is further underlined by the provisions of s. 11(3)(b) of the Act of 2003 which provides that such a warrant shall be accompanied by a statement in writing issued in the issuing State which states, inter alia, that “where the person has not been charged with the offence concerned, a decision to charge him or her with, and try him or her for, the offence concerned has been made by a person, who in the issuing state……performs functions the same as, or similar, to those performed in the State by the Director of Public Prosecutions”.
In this case the warrant was issued by a Judge of the Court of First Instance, (also referred to, in translation, as a ‘Magistrates Court’) of Marbella, Spain. No issue arises in this appeal that this was the appropriate authority in Spain for the issuing of the warrant. The mere fact that an arrest warrant is issued by a judge in a foreign jurisdiction may not of itself necessarily imply that it is issued only for the purpose of charging the person concerned and putting him or her on trial for an offence or offences. In some jurisdictions, particularly in what may be termed civil law jurisdictions, criminal investigations are often conducted by or under the supervision of a judge. Such a judge may require a suspected person to appear before him or attend in his chamber in connection with the conduct of the criminal investigation rather than for the purpose of charging that person with a view to putting him or her on trial.
Warrants issued for the purpose of such investigations could not be considered as requiring the surrender of a person for the purpose of being tried for an offence. The surrender of a person for the purpose of prosecution and trying him or her on a criminal offence means that the decision taken by the relevant authority to prosecute and try that person is not contingent on the outcome of further factual investigation. That requirement does not of course preclude the pursuit of any continuing or parallel investigation into the circumstances of the offence. It means that the decision to prosecute is not dependant on such further investigation producing sufficient evidence to justify putting a person on trial. Nor would it exclude normal pre-trial procedures in a requesting State such as, for example, the procedure known as a “preliminary examination” as was provided for in this country under the Criminal Procedure Act, 1967 before it was substantially amended.
Of course, what we are concerned with here is not any warrant but a European Arrest Warrant. It is not in issue that it complies with the form required by the Act of 2003. The warrant contains, inter alia, the words “I request that the person mentioned below be arrested and surrendered for the purpose of conducting a criminal prosecution …”. The warrant is signed by the Spanish Judge. Accordingly the request made, in the terms of the European Search Warrant, is for the surrender of the appellant in these proceedings for the purpose of prosecuting him for the offence specified in the warrant. In short his surrender is sought only for that purpose and an Order for his surrender may be made only for that purpose.
Furthermore a certificate from the Spanish Judge, as provided for in s. 11(3)(b) of the Act of 2003, accompanied the arrest warrant in the following terms (as translated):
“CERTIFIES: That in the course of the inquiry carried out in this Court under NR.152/2000 for homicide against Michael Dermot McArdle a writ has been passed on date 09/19/01 with the agreement of the Public Prosecution, ordaining the judicial arrest of Michael Dermot McArdle as accused of an alleged offence of homicide, in order to try him for that offence; and that it has also been agreement, by writ of the 10/26/01, and also in agreement with the Public Prosecutor’s request, to propose to the Spanish Government the extradition of the accused, which was reiterated by Writ of the 02/17/04, all of this to the aforementioned purpose of his trial for the said offence of homicide.” (emphasis added).
The certificate is dated 15th June, 2004 and the warrant is dated 19th August, 2004.
In this case an issue was raised by the appellant in the High Court as to whether the Spanish request on foot of the European Arrest Warrant was in fact for the purpose of investigating the alleged offence rather than for the purpose of putting him on trial.
This was a question of fact to be determined by the High Court on the basis of the evidence and material before it. The learned President concluded that the purpose of the request is to put the appellant on trial for the offence specified in the warrant.
The European Arrest Warrant Act, 2003 gives effect in this jurisdiction to the European Council Framework Decision of 13th June, 2002 on the European Arrest Warrant and the surrender procedures between Member States. The recitals to that decision make reference to the implementation of “the principle of mutual recognition of criminal proceedings” and in particular recital number 6 which states “the European Arrest Warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council refer to as the ‘cornerstone’ of judicial cooperation”. Accordingly, it seems to me that where a judicial authority of a Member State issues a European Arrest Warrant and that is accompanied by a certificate referred to in s. 11(3) of the Act of 2003 both of which state and certify respectively that the surrender of the person named in the warrant is sought for the purpose of prosecution and trial, that must be acknowledged as at least prima facie evidence of the purpose of which the request is made. It would in my view normally require cogent evidence to the contrary to raise a genuine issue as to the purpose for which the warrant in question has been issued and the surrender sought.
In this case the learned President had before him first of all the warrant and the stated purpose of the warrant as well as the certificate from the Spanish Judge, referred to above, certifying that the purpose of the request was to put the appellant on trial.
The learned President also had before him affidavits and material sworn and furnished by a Spanish lawyer acting on behalf of the appellant. He contested, inter alia, the decision of the Spanish Judge to charge and put the appellant on trial. He also gave evidence to this effect at the hearing in the High Court. Essentially he claimed that all of the procedures necessary in connection with the investigation by the judge had not been completed and / or the procedural scene, so to speak, had not been set or reached which would have entitled the Spanish Judge to decide that the appellant should be charged and put on trial. The learned President also had before him various documents and material supplied by the Spanish Judge directly in addition to the warrant and certificate referred to above. In response to some of the assertions of the Spanish lawyer for the appellant he maintained that the investigative procedure was complete and at one point stated:
“However after the current preliminary investigation (the general, initial investigative procedure) what would commence is a process of trial by jury and not an abbreviated procedure (nor summary proceedings or an ordinary criminal prosecution as affirmed by the Spanish lawyer you mention). The reason why the trial by jury process has not yet started is that it requires, in accordance with the statute that governs it (Organic Law 5/95), the convening of an appearance at which the accused (Michael Dermot McArdle) must be present, which obviously cannot occur until he is handed over to Spanish Judicial authorities (specifically to this Court). This is why the trial by jury process has not yet begun, but will be initiated as soon as the accused is placed at the disposal of this Court.” (emphasis added)
It is not the function of this Court to retry the primary issues of fact determined by the High Court but to review the evidence before the learned President in order to determine whether he erred in law in concluding that the purpose of the request set out in the European Search Warrant before him was the prosecution and trial of the appellant on the offence alleged therein. For that reason it is not necessary or appropriate to review and weigh the evidence and material provided by the appellant and the State. The question is whether the learned President was entitled to find as he did.
In my view, having regard to the evidence and material before the learned President, there was ample evidence which entitled him to conclude that the purpose of the European Search Warrant in this case is the prosecution and trial of the appellant as envisaged by the Act of 2003. I find no error of law in that finding.
Before concluding on this issue there is one other point raised by the appellant in connection with it based on new evidence which he has sought to introduce in this appeal. This new evidence consisted of a copy and translation of the judicial file of the court in Marbella. I will deal with the question of this new evidence later but for present purposes the only document relevant to the issue concerning the purpose of the request for surrender is a document contained at p. 91 of the file (English language version). This document relates to a decision taken by the court in Marbella on 28th March, 2000 relating to the investigation proceedings and whereby the court “agreed on the provisional dismissal and the archiving of the current cause”. That provisional decision was confirmed by an Order of 9th May, 2000. These documents were not before the High Court and counsel for the appellant claims that, had they been so, they would have reinforced his submission on the issue that the purpose for which the appellant’s return is sought is not for the purpose of putting him on trial. Moreover, counsel for the appellant pointed out that the learned President erred in treating a document from the Magistrates Court Number 5 dated 14th February, 2000, as the document dismissing the investigation proceedings. This was a document tendered on behalf of the appellant in the High Court. It was submitted in doing so the President attached no importance to the February 2000 document since it related to a procedure akin to a coroner’s inquest. It was on that basis that the President decided that an Order allegedly dismissing the investigative procedure was of no importance – but he was referring to the wrong document. It is the case, as it now transpires, that the President was referring to the wrong document.
As regards this aspect of the matter the first thing I would note is that the reliance of the President on the February 2000 document issued by the Spanish Court was very much in the context of his decision on an issue as to which court in Spain had jurisdiction to conduct the proceedings and therefore which court could issue the European Search Warrant. That issue as to jurisdiction is not the subject of appeal.
In any event, the new document on which counsel for the appellant now seeks to rely, namely that of the Court in Marbella dated 28th March, 2000 as affirmed in an Order of 9th May, 2000, instead of that which was before the President, clearly relates to the purely investigative proceedings which were before the Court at that time. It is not contended that the document is in any sense related to a trial of the appellant. Counsel for the appellant does not contend that a decision to dismiss or terminate at that point the investigative proceedings in any way creates an estoppel in Spanish law to such an investigation being reopened and proceeded with at a later stage. It is accepted that this is in fact what happened on 7th September, 2002 when there was a decision to reopen the investigatory proceedings. It was this which led ultimately to the decision to charge the appellant and put him on trial and thus seek his surrender. Since the newly produced document which the appellant seeks to rely on, that of 28th March, 2000, well preceded the decision to reopen the investigation and since the decision contained in it is not an estoppel to such a reopening, that document cannot be considered to have any legal or other significance for the determination by the President of the High Court that the true purpose of the request for surrender is to charge and try the appellant for the offence in question.
Delay
Although the passage of time from the date of the death of the deceased in 2000 and the issue of the European Arrest Warrant in 2004 was relied upon as a ground of appeal in the notice of appeal filed on behalf of the appellant it was not really pursued at the hearing. In particular it was not claimed that the appellant would be prejudiced in any trial by reason of delay. Certainly there is some confusion as to why the request pursuant to the Act of 1965 was initially withdrawn and the learned President found that the reason why a request for extradition was not subsequently pursued was because Ireland did not extradite its own citizens to Spain under the Act of 1965 in the absence of any reciprocal extradition arrangements from Spain to Ireland of Spanish citizens. The current request was made after the entering into force of the Act of 2003 on 1st January, 2004. In the circumstances I do not find that there are any grounds for interfering with the Order of the learned President on the grounds of delay.
Abuse of process
Apart from the issue concerning the purpose for which the surrender of the appellant was sought by the Spanish authorities the appellant relied on a range of matters said to constitute an abuse of process. In essence these had to do with an alleged close friendship which had developed between a member of An Garda Síochána, who had some responsibility for liaising with the Spanish police and assisting them with their inquiries, and a Spanish policeman involved in the case, that Garda member’s prior acquaintance or friendship with the deceased and her family, and the failure of the Spanish authorities to inform the appellant that his refusal to meet with members of the Spanish police in Ireland and answer their questions could result in adverse inferences being drawn from that refusal. If there is any substance in these matters and in particular for any alleged inferences to be drawn from facts asserted by the appellant in relation to those matters they are all matters that are relevant only to a trial and the weight to be attached to evidence tendered at a trial. They do not constitute grounds for impugning an otherwise proper Order for the appellant’s surrender on foot of the European Search Warrant.
New evidence
The appellant brought a motion to admit new evidence stated to have been obtained by him through his Spanish lawyer since the hearing in the High Court. This evidence consisted of the documents on the prosecution file kept at the requesting court in Marbella. These are documents in respect of which the appellant had made an application in January 2005 for discovery before Mr. Justice Ryan, which application was refused and no appeal was taken. The only specific document relied upon by the appellant in the appeal was that to which I have already referred namely the decision to dismiss the investigative proceedings in March 2000. I have already found that this has no legal significance in these proceedings. Most of the remainder of the documents referred to matters of which the appellant had knowledge prior to the hearing in the High Court. Of more fundamental importance however, is the fact that none of them have been demonstrated as being material to the issues in the present proceedings. While some of them were relied upon for the purpose of making adverse comment on the reasons for which the judge in Spain decided to recommence the criminal investigation in September 2002, that was a matter for the Spanish Judge to decide in accordance with the law in that jurisdiction. In proceedings of this nature the courts are not required to examine and assess the evidence which was before a judge or other prosecuting authority of the requesting State for the purpose of reviewing whether the decision in question ought to have been made.
The appellant’s application to admit new evidence was heard in conjunction with the substance of the appeal with counsel for the appellant being permitted to refer to that new evidence de bene esse. I think it is sufficient for the purposes of the present appeal to state that none of the evidence, which the appellant sought to introduce as new evidence, could have had any material effect on the issues which the learned President had to decide and which, in my view, he decided correctly.
For the reasons set out in this judgment I would amend the Order of the High Court by substituting a reference to s. 16(1) of the Act of 2003 in lieu of the reference therein to s. 16(2) of that Act. I would also dismiss the appeal. Accordingly the High Court Order will take effect in respect of the surrender on foot of the European Search Warrant and in respect of the Committal Order with appropriate and consequential amendments.
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