Judgment

Chief Justice Denham

1. On the 29th July, 2013, the High Court (Edwards J.) ordered the surrender of Adam Stuart Busby, the appellant/respondent, referred to as “the appellant”, to the United Kingdom, pursuant to a European arrest warrant.

2. The appellant was granted bail on the 3rd March, 2014. On a medical certificate being produced, he was not required to attend at the hearing of this appeal.

3. A European arrest warrant was issued by the United Kingdom on the 13th July, 2012. On the 17th July, 2012, it was endorsed before the High Court. The appellant was brought before the High Court on the 18th July, 2012.

4. The European arrest warrant seeks the surrender of the appellant for prosecution for offences which have been identified by the ticking of the box marked “terrorism” on the warrant.

5. The European arrest warrant certified:-

   that the offences are not extra-territorial offences.

6. The circumstances in which the alleged offences were committed by the appellant by reference to the law in Scotland were as follows:-

   Adam Busby is the self-proclaimed leader of an extremist group called the Scottish Liberation Army. His conduct giving rise to the offences is that: (1) On 27 November 2009 at the Scottish Sun Newspaper, the Guild Hall, 57 Queen Street, Glasgow he did, by means of telephone communication sent to Nicholas Sharp, an employee of the Scottish Sun Newspaper, Guild Hall, 57 Queen Street, Glasgow utter threats to said Nicholas Sharpe, did purport to represent an organisation called the Scottish National Liberation Army, and did threaten to contaminate the drinking water supplies of major English towns and cities with a noxious substance, with 'the intention of inducing in said Nicholas Sharpe, and others, a belief that there would be danger to human life and a serious risk to human health. (2) On 20 December 2009 at the Scottish Sun Newspaper, Guild Hall, 57 Queen Street, Glasgow he did by means of telephone communication send to the Scottish Sun Newspaper, Guild Hall, 57 Queen Street, Glasgow a text message, the content of which he knew or believed to be false, with the intention of inducing in employees of said Scottish Sun Newspaper a belief that various packages containing caustic, poisonous or other noxious substance had been sent to a number of political figures, including the then Prime Minister of the United Kingdom, Gordon Brown, which was capable of endangering human life or of creating a serious risk to human health: Contrary to the Anti-terrorism, Crime and Security Act 2001, Section -114(2) (3) On 15 April 2010 at the Press Association, 1 Central Quay, Glasgow he did communicate, by telephone, information to Victoria Mitchell, Deputy Editor of the Glasgow branch of the Press Association with the intent of inducing in her the false belief that a bomb, or other thing liable to explode or ignite, was present at the bridge at the Argyle Arcade in Glasgow. Contrary to The Criminal Law Act 1977, Section 51(2) and (4). (4) On 15 April 2010 at the Glasgow branch of the Samaritans, 210 West George Street, Glasgow, he did communicate, by telephone, information to another person namely Margaret Foley, with the intent of inducing in her the false belief that a bomb, or other thing liable to explode or ignite, was present at The Hilton Hotel, Glasgow. Contrary to The Criminal Law Act 1977, Section 51(2) and (4). (5) On 9 June 2010 at the Edinburgh Evening News, Edinburgh he did communicate, by telephone, information to another person namely Simon Lyle, a Reporter there, with the intent of inducing in him the false belief that a bomb, or other thing liable to explode or ignite, was present at the Forth Road Bridge. Contrary to The Criminal Law Act 1977, Section 51(2) and (4). (6) On 9 June 2010 at the Scottish Daily Express Newspaper, Glasgow, he did communicate; by telephone, information to another person namely Tom Martin, Executive News Editor, with the intent of inducing in him the false belief that a bomb, or other thing liable to explode or ignite, was present at the Erskine Bridge, Glasgow. Contrary to The Criminal Law Act 1977, Section 51(2) and (4). (7) On 9 June 2010 at the Scottish Sun, Guild Hall, 57 Queen Street Glasgow he did communicate, by telephone information to another person, namely Gail Cameron, a News Reporter there, with-the intent of inducing in her the false belief that a bomb, or other thing liable to explode or ignite, was present at the Erskine Road Bridge, Glasgow. Contrary to The Criminal Law Act 1977, Section 51(2) and (4). Incidents 2-7 were hoaxes: no noxious substances or bombs were found.

7. The appellant has been prosecuted and convicted in the State for similar offences.

8. On the 29th July, 2013, the High Court (Edwards J.) ordered, pursuant to s. 16 of the European Arrest Warrant Act 2003, as amended, that the appellant be surrendered to such person duly authorised to receive the appellant on behalf of the United Kingdom of Great Britain and Northern Ireland.

9. On the 31st July, 2013, the High Court (Edwards J.) certified that the order of the 29th July, 2013, involved one point of law of exceptional public importance being:-

   (i) Where an offence is deemed extra-territorial for the purposes of s. 44 is it necessary to show that the executing state could prosecute the act or omission of which the offence consists on a similar basis to the jurisdiction asserted by the issuing state?

   The High Court ordered that it was desirable in the public interest that an appeal should be taken to the Supreme Court on the point.

   Certified Point

10. The first part of the point certified is not presented as a question. Thus, the certified point is raised on an assumption that the offence is deemed extra-territorial for the purposes of s. 44 of the European Arrest Warrant Acts. The Court is not required to address that matter.

11. The point for determination is:-

    .... is it necessary to show that the executing state could prosecute the act or omission of which the offence consists on a similar basis to the jurisdiction asserted by the issuing state?

12. Thus, it is not necessary to decide an extra-territorial issue on this appeal in light of the question certified. The decision in The Minister for Justice, Equality and Law Reform v Bailey [2012] IESC 16, is not of assistance to the issue in this case, as the matter for decision in this case did not arise for determination in Bailey.

    Decision

13. Under s. 10 of the European Arrest Warrant Act, 2003, as amended, where a judicial authority in an issuing state issues a European arrest warrant in respect of a person against whom the State intends to bring proceedings for an offence to which the European arrest warrant relates, that person shall, subject to and in accordance with the provisions of the said Act, be arrested and surrendered to the issuing state. Thus, the Court must be satisfied that the requirements of the Act must be complied with, and if they are so, is bound to make the order.

14. In this case the offences were identified by the tick box system in the warrant: the box labelled “terrorism” being ticked. This was an innovation under the European Arrest Warrant Scheme introduced in Europe. It was described in Article 2(2) of the Central Framework Decision of the 13th June, 2002, as:-

    The following offences, if they are punishable in the issuing Member State by a custodial sentence or detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant.

    There then follows the list of offences, including “terrorism”.

15. This was in addition to the conventional approach to identifying offences which may be subject to orders of extradition by acts described on the warrant. Thus, Article 2 of the Framework Decision defines the scope of the European arrest warrant as including:

    A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.

16. The European arrest warrant system is based on the Framework Decision and each member state’s national law. The Court is required to interpret the provisions of the European Arrest Warrant Act, 2003, as amended, as far as possible in light of, and so as not to conflict with, the Framework Decision: Case C- 105/03 Criminal Proceedings against Pupino [2005] E.C.R. 1-5285.

17. The European arrest warrant system is based on the principle of mutual recognition of the judicial decisions of the legal systems of other member states, and of mutual trust. As is stated in Recital 6 of the Framework Decision:-

    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 referred to as the ‘cornerstone’ of judicial cooperation.

18. In other words, what is established is a system of mutual recognition of judicial decisions, not an identical system in each state. However, an assumption may be made. As Fennelly J. stated in MJELR v Stapleton [2008] 1 I.R. 669.

    It follows, in my view, that the courts of the executing member state, when deciding whether to make an order for surrender must proceed on the assumption that the courts of the issuing member state will, as is required by Article 6.1 of the Treaty on European Union, ‘respect human rights and fundamental freedom’. Article 6.2 provides that the Union is itself to ‘respect fundamental rights, as guaranteed by the European Convention on Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, as general principles of community law.

19. This assumption does not mean that a court has no jurisdiction to consider the circumstances. The appropriate approach was described by Murray C.J. in Minister for Justice Equality and Law Reform v Brennan [2007] 3 I.R. 732, where he stated:-

    [38] I am not aware of any authority for the principle that the extradition or surrender of a person to a foreign country would contravene the Constitution simply because their legal system and system of trial differed from ours as envisaged by the Constitution. .... [40]   That is not by any means to say that a court, in considering an application for surrender, has no jurisdiction to consider the circumstances where it is established that surrender would lead to a denial of fundamental or human rights. There may well be egregious circumstances such as a clearly established and fundamental defect in the system of justice of a requesting state where a refusal of an application for surrender may be necessary to protect such rights. The sole matter which I wish to make clear here is that the mere fact that a trial or sentence may take place in a requesting state according to procedures or principles which differ from those which apply even if constitutionally guaranteed, in relation to a criminal trial in this country does not of itself mean that an application for surrender should be refused pursuant to s. 37(2) of the Act.

20. Similarly, in Minister for Justice Equality and Law Reform v Stapleton [2008] 1 I.R. 669, Fennelly J. stated that he could not see that any of the differences discerned by the learned trial judge between the right to seek prohibition of trial in the English Courts and our own could amount to the establishment of infringement of the right to fair trial, or fair procedures, whether by reference to the Convention or the Constitution. He held that they certainly did not amount to a clearly established and fundamental defect in the system of justice of the requesting state.

21. There is no requirement for parity of procedures between the member states. As Fennelly J. stated in Minister for Justice Equality and Law Reform v Stapleton [2008] 1 I.R. 669.

    The trial judge was mistaken in seeking parity of procedure in the issuing member state. It is apparent that, even under the long established extradition jurisprudence, as it applied between some member states prior to 2004 and, as it still applies between this country and third countries, such a comparison was not required. Extradition does not demand that there be parity of criminal procedures between contracting states. It is notorious that criminal procedures vary enormously between states. Indeed, it is obvious that they approximate much more closely between this country and the United Kingdom than between either of those states and the great majority of member states practising the civil law system, where, for example, there is no tradition of cross-examination of the sort practised in our courts, and which is here regarded as totally fundamental to the rights of the defence.

22. Applying the well established principles from case law (which do not include Minister for Justice Equality and Law Reform v Bailey [2012] IESC 16, where the issue that arises in this case was not addressed) I would answer the question certified in the negative. Subject to such caveats as are described in the jurisprudence set out above, parity of process is not necessary. I would answer the question thus: it is not necessary to show that the executing state could prosecute the act or omission of which the offence consists on a similar basis to the jurisdiction asserted by the issuing state.