Justice John MacMenamin
Points of Law
On the 27th May, 2014 the High Court, (Edwards J.), ordered that the appellant be surrendered to the United Kingdom authorities, on foot of an application under the European Arrest Warrant procedure. On the 5th June, 2014, the same judge certified two matters as being points of exceptional public importance, pursuant to s.16 of the European Arrest Warrant Act, 2003. These points were:
The appellant is the subject of a European Arrest Warrant dated the 12th August, 2013 issued by a competent judicial authority in the United Kingdom. The U.K. authorities seek his rendition for the purpose of prosecution for the single offence of conspiracy to cause explosions. The nature of the offence is particularised in the European Arrest Warrant, in the following way:
Jason Buckley, between the 20th June, 2012 and the 18th day of August, 2012, unlawfully and maliciously conspired, together with Thomas James Leslie Snr., Jason Joseph William Toft, Thomas Richard Leslie Jnr., Kevin Proctor, and Martin William Drewery, and with others, to cause by explosive devices explosions of a nature likely to endanger life or cause serious injury to property in the United Kingdom or Republic of Ireland, contrary to s.3(1)(a) of the Explosive Substances Act, 1883.
The alleged offence is said to derive from a dispute between two persons involved in criminal activity in the Stoke-on-Trent area. It is said these two persons enjoyed a business relationship. There was then a falling out, involving a dispute relating to a financial settlement. It is said that one of the two persons took the view that the other might be amenable to pressure, and, allegedly, embarked on a campaign of intimidation by the utilisation of explosive devices. It is alleged that the appellant herein was complicit, specifically, in the design or manufacture of the pipe bombs said to have been used. Other persons had already been convicted arising from the same incidents.
The Legal Procedure
The European Arrest Warrant was endorsed for execution in this jurisdiction on the 15th August, 2013. The appellant was arrested and brought before the High Court, where the matter was heard before Edwards J. on the 28th May, 2014.
In the High Court the appellant opposed his surrender on foot of a single net point of objection, set out in the following terms:
To surrender the respondent [now the appellant to this appeal] to the issuing State would be to expose him to practices or procedures which if exercised within this State would amount to infringements of his constitutional right to fair and just procedures. The respondent submits that this arises in circumstances where the alleged offence he is required to answer in the issuing State is one of conspiracy. The respondent submits that should he be surrendered to the issuing State for the purpose of trial on the charge of conspiracy, he will be faced with the introduction of evidence which would be inadmissible and/or would fall foul of the constitutional guarantees of fair procedures. It is submitted that the respondent, in facing such a charge, would lose the protection of this jurisdiction to another where such protection would not be enjoyed by him.
The evidential basis for this contention was laid out in an affidavit by a United Kingdom solicitor, James Patrick Morris. Mr. Morris, retained by the appellant’s legal advisors, described the law relating to conspiracy charges in the United Kingdom. He identified certain rules of evidence and procedures laid down in statute form, which may be applicable in the trial of persons charged with conspiracy. It is said these raise constitutional issues in this jurisdiction, such that the appellant should not be surrendered.
The U.K. Provisions in Question
Sections 74 and 75 of the United Kingdom Police & Criminal Evidence Act, 1984 (PACE, or “the Act of 1984”), provide as follows:
(The omission in s.74(3), signified thus “....”, is due to words repealed by the U.K. Criminal Justice Act 2003)
The Appellant’s Case
Counsel for the appellant contends that, were the appellant to stand trial in the United Kingdom, these emphasised provisions would enable the prosecution to adduce evidence of a convicted ‘conspirator’s’ conviction in the same matter. He submits that if his client is surrendered to the United Kingdom, there is a risk of denial of his rights pursuant to Article 38 of the Constitution. It is said, specifically, that a trial which might allow the adducing of evidence of an alleged co-conspirator’s conviction, potentially utilising ss. 74 and 75 P.A.C.E. 1964, would infringe on the appellant’s constitutional rights, by reason of the fact that such a trial would not be in due course of law. The case is made that the deployment in the prosecution case of an alleged co-conspirator’s testimony is procedurally questionable, and does not accord with our precepts of a trial in due course of law. Counsel submits that the scope of Article 38 is intended to give effect to this fundamental trial principle, which should have application beyond the bounds of the national territory. Counsel draws attention to the fact that our courts have, on occasion, recognised the entitlement of respondents to extradition proceedings to assert constitutional rights, as a basis for resisting their surrender (See, for example, evidence that a respondent likely to be ill-treated if delivered out of the jurisdiction, Finucane v McMahon  ILRM, evidence taken in violation of constitutional rights, Larkin v O’Dea  2 I.R.; inhumane prison conditions in a requesting state, AG v PO’C  2 I.R. 421).
This appeal must be decided on the evidence adduced. It is not open to this Court to speculate on matters which are not placed in evidence. On the provisions, just quoted, Mr. Morris deposes, only, to the effect that the provisions highlighted as sections 74 and 75, Police & Criminal Evidence Act 1984:
.... would enable the prosecution to adduce evidence of the co-conspirators’ [sic] convictions if Jason Buckley were to stand trial in the U.K. This would seem to be a case whereby it would certainly be open to the prosecution to make use of these provisions, and that [sic] there is no reason to believe they would not attempt to do so.
It is said, therefore, that the provisions in question might be deployed to demonstrate that other persons committed the offence in question. The principal objection which the respondent raises to his surrender and ultimate trial, therefore, is the prospect that the fact that evidence of others, who were convicted of an offence in the same matter, may be presented to the jury as admissible evidence that such other persons committed the offence, thus compromising the appellant’s presumption of innocence, and the fairness of a trial.
The question of context is essential in cases such as these. No evidence has been adduced as to the context in which such evidence might be introduced at a trial. This is simply not part of the case. It is not said that an English trial court would be under a duty to admit such evidence. No information is given as to what instructions might be given by a trial judge to a jury as to the circumstances in which such evidence might be admitted. As indicated, the evidence, apparently, would be to the fact that another person committed the offence. How this might connect to the respondent is unclear. No information is available as to how the law would be applied in ascertaining the purpose of any attempt to admit such evidence. There is no indication as to whether or not the process involved ss. 74 and 75 is, generally, used sparingly or frequently.
On behalf of the appellant, it is contended that the deployment of those provisions would be a denial of the respondent’s right to hear evidence presented in the context of a trial, where he should be in a position to contest all evidence by cross-examination. Counsel relies, by analogy, on the authority of Borges v The Fitness to Practice Committee of the Medical Council and the Medical Council  1 I.R. 103, at p. 113, par. 26, where Keane C.J. observed that when a tribunal is enquiring into allegations of conduct which reflects on a person’s good name or reputation, basic fairness of procedure requires that he or she should be allowed to cross-examine by counsel his accuser or accusers (see also In Re Haughey  1 I.R. 217).
A consideration of the facts of Borges shows the limitations of this analogy. Not the least significant of these was that this impugned procedure was to take place in this jurisdiction, although, obviously, this was not an Article 38 case. In Borges, the complaint raised by the applicant was that the second named respondent (that is, The Medical Council of Ireland), intended to conduct an enquiry, before its own Fitness to Practice Committee. The Medical Council contended that the complainants against the applicant doctor would not be called in evidence in the enquiry which was to be held in Ireland, but, instead, their testimony was to be introduced by reference to a transcript of proceedings before the Professional Conduct Committee of the U.K. General Medical Council, before which such complainants had actually testified. It was also intended to adduce in evidence the findings of the U.K. Professional Conduct Committee, and of the Privy Council in an appeal upholding that Committee’s findings. In Borges, this Court held that such an enquiry could not lawfully be held here, on the basis that the applicant would be deprived of his right to fair procedures. Consequent on the course of action, proposed and adopted by the Medical Council, evidence would be adduced, not by witnesses who could be cross-examined, but rather by reference to a transcript. Clearly then, the ‘witnesses’ would not be susceptible to cross-examination, or challenge. For this reason, this Court held such a procedure breached the principles of fair procedures, and held for the applicant doctor.
Borges was not based on some hypothesis of what might, possibly, occur. It was entirely clear that the enquiry had embarked upon, and was to be based on, this irregular and unjust procedure. The complainants would not be called. The case advanced by the applicant doctor, therefore, was predicated on a specific set of accomplished facts. The evidence to be thus adduced could not be effectively challenged in cross-examination.
While counsel for the appellant presented this appeal with great force, it seems to me that the case made is unconvincing for a number of reasons. What arises, here, is purely a hypothesis, regarding application of the rules of evidence in the U.K. There is no factual material in this appeal that the statutory provisions in question which are, simply, evidential rules, are likely to be relied on in a trial. The analogy with Borges is inapposite, for this reason alone. Next, on a perusal of the United Kingdom provisions, (which can hardly be characterised as a fundamental defect in the justice system which amounts to a deprivation of a guaranteed right), proof by evidence of conviction of another, as set out in the United Kingdom statute, is not conclusive proof of the guilt of an accused, but rather is evidence only that the (other) person has committed the offence “unless the contrary is proved” (s.74(2) PACE 1984). The respondent has not adduced evidence that he would be left without remedy, or asserted that no procedural checks and balances exist in the United Kingdom in order to ensure that fairness is preserved in a trial there.
The unclear and contingent nature of the case advanced by the appellant is, in fact, rather highlighted in the affidavit of James Morris, referred to earlier. It is not suggested the prosecution case against the appellant hinges upon, or is likely to hinge upon, ss. 74 and 75 PACE 1984, either alone, or in conjunction with some other statutory provisions. Mr. Morris actually identifies some 16 points of potential evidence which might be used in an intended prosecution. These may include telephone evidence and analysis relating to all alleged co-conspirators; transcripts of recorded telephone calls; phone company evidence and calls; cell-site analysis showing the location of mobile phones used by alleged perpetrators in respect of phone masts close to targeted premises; CCTV footage either of cars in locations where the pipe bombs were detonated; forensic evidence in respect of the pipe bombs themselves; eye witness evidence; and automatic number plate recognition of cars involved in the offence. In addition, it would appear that ballistics/firearms/explosive evidence would be adduced, together with eye-witness statements and surveillance evidence. It is by no means clear, then, that the prosecution authorities will inevitably, or are likely to, rely on evidence adduced by reference to ss. 74 and 75 of the U.K. Act.
Section 4A of the 2003 Act
Section 4A of the Act of 2003 contains a presumption that an issuing state will comply with the requirements of the Framework Decision, unless the contrary is shown. Counsel for the appellant submits the trial judge erred in placing such reliance.
However, as the learned High Court judge pointed out, the respondent’s evidence here was again silent as to any possible safeguards, counterbalances or remedies that might exist under United Kingdom law; to guard against any potential unfairness and injustice in the operation of the Act of 1984, were it to be deployed. Not only would this Court not be justified in inferring that no such safeguards exist, in fact it is bound by a presumption in the other direction, which derives from s.4A of the Act of 2003. In the absence of some controverting evidence, therefore, there is nothing tending to rebut the presumption under s.4A of the Act of 2003.
These various observations, however, must be seen as prefatory to two decisions which are, in fact, entirely determinative on the question of extra-territorial effect of Article 38.
The Judgment of this Court in Minister for Justice v Brennan
In Minister for Justice, Equality & Law Reform v Brennan  3 I.R. 732 at p.743, Murray C.J. observed that if the constitutional guarantees in respect of domestic criminal processes were to be applied to foreign criminal processes, in the context of extradition, then it would be all but inevitable that surrender would have to be refused in most cases. He expressed himself in this way at par. 37, p.743:
He continued at par. 38, p.743:
Nottinghamshire County Council v B (K)
In Nottinghamshire County Council v B(K)  IESC 48, O’Donnell J., (with whom Denham C.J., Fennelly J. and Macken J. agreed, Murray J. concurring in part), again explained that the general range and scope of the Constitution, and the rights derived therefrom, are, with one important exception, to be seen as operating intra-territorially. The Court held that the Constitution does not, in general, attribute legal significance to events occurring abroad. As O’Donnell J. observed, in the context of an application under the Hague Convention on Child Abduction, “.... The true question for an Irish Court is whether what is done within this jurisdiction can be said to be contrary to the Constitution. This is why Article 20, [of the Hague Convention] can be seen to precisely focus attention on the issue. That is whether the return (and not the adoption) would itself be a breach of the Irish Constitution.” (para. 61, p.56). He pointed out, it was clear that “.... the Constitution expects the legal systems of friendly nations will differ from that of Ireland.” (para. 66, p.58) (Emphasis added). The symmetry in reasoning between Brennan and Nottinghamshire County Council is clear.
There is no extant authority, therefore, which provides support for the proposition that Article 38 should ‘operate’ in an extra-territorial fashion. What is at stake, rather, is whether Ireland should surrender the applicant, and if such surrender accords with constitutional principles. I would emphasise, however, that if there is a fundamental defect in the legal system of a requesting state, different considerations may well apply.
Differences Between Legal Systems
In Brennan  3 I.R. 732, Murray C.J. distinguished between two scenarios at para. 39 at p.743 - 744; first, that:
.... The manner, procedure and mechanisms according to which fundamental rights are protected in different countries will vary according to national laws and constitutional traditions. The checks and balances in national systems may vary even though they may have the same objective, such as ensuring a fair trial. There may be few, if any, legal systems which wholly comply with the precise exigencies of our Constitution with regard to these matters. Not all for example will provide a right to trial by jury in exactly the same circumstances as our Constitution does in respect of a trial for a non-minor offence. Rules of evidence may differ ....
It is clear, then, that, from this final quotation, differences in the rules of evidence are insufficient to raise a question of refusal to surrender.
An Exception: Fundamental Defects in a Foreign Justice System
Entirely different considerations arise if it can be shown that there is a fundamental defect in the requesting state’s system of justice. Murray C.J. contrasted the position in these terms,  3 I.R. 732 at p.744:
Both Brennan and Nottinghamshire County Council are authority, therefore, for the proposition that, absent some matter which is fundamental to the scheme and order of rights ordained by the Constitution, or egregious circumstances, such as a clearly established and fundamental defect, or defects, in the justice system of a requesting state, the range and focus of Article 38 must be within the State and not outside it.
The Court is presented, here, with what, at is height, can only be characterised as a ‘different rules of evidence case’; but no more.
I would, therefore, summarise matters this way. First, the case advanced by the appellant is hypothetical, in that its actual or likely impact on the respondent is unclear, and certainly not capable of being characterised as a defect in the system of justice of the requesting state. Second, even if, hypothetically, ss. 74 and 75 P.A.C.E. 1984 are not in accordance with the values found in Article 38; it is immaterial, if the appellant cannot show that what would be at issue would be, or is likely to be, an “egregious” departure amounting to a denial of fundamental or human rights (per Murray C.J. in Brennan  3 I.R. 732 at p.744, par. 40). There would have to be significantly more: a real and substantive defect in the system of justice, where fundamental rights were likely to be placed at risk, or actually denied. As Murray C.J. pointed out in Brennan, rules of evidence “may differ” between states, and that alone does not at all lead to the necessary conclusion that there is a breach of fundamental rights in the requesting state. Finally, and again as held in Brennan and Nottinghamshire County Council, the reach of Article 38, save in exceptional circumstances, goes no further than the boundaries of the State. There is nothing in Article 38 to suggest anything beyond that. What is in question, then, is the lawfulness of the surrender of the appellant in this jurisdiction. I would, therefore, answer the first question in the negative.
The Second Question
The second, closely associated, question is predicated on certain observations made by Walsh J. in Ellis v O’Dea  I.R. 530.
Ellis v O’Dea  1 I.R. 530
Ellis was arrested on foot of two warrants issued by an English magistrate, endorsed for execution by a Deputy Commissioner of An Garda Siochana under the Extradition Act of 1965. Both warrants contained a recital that information on oath had been put before the English magistrate, to the effect that the applicant had committed the offence of which particulars were given. On his arrest, the applicant was brought before the second respondent, a justice of the District Court. English solicitors were instructed on behalf of the applicant to request from the English Crown Prosecution Service copies of the sworn information referred to in the warrants, and on which the warrants were grounded. No reply was received to that request. On the applicant’s application by way of judicial review for an order prohibiting the second respondent, (a District judge), from proceeding with an extradition hearing until such time as the applicant was provided with a true copy of the information grounding the warrants, this Court held that the District Court had an undoubted jurisdiction to protect the constitutional rights of a person appearing before it by declining to order the extradition of that person to a jurisdiction where he could be exposed to practices or procedures amounting to an infringement of his right to fair and just procedures. ( 1 I.R. 530 at 531 and 537)
The Court, (Finlay C.J., Walsh and McCarthy, JJ.), also held that the Extradition Act of 1965 did not provide that the sworn information on which a warrant was grounded, should be a necessary proof in extradition proceedings and, that, although there might be cases in which such information ought to be made available, there was no reason in that case to require that it be proven in evidence.( 1 I.R. 530 at 531) Finally, this Court held that the State authorities were not obliged to furnish the applicant’s legal advisors with sworn informations so as to assist them in testing the validity of warrants, which were presumed by statute to have been duly issued.
This recital of the essential facts in Ellis is necessary, I think, in that it makes clear that certain observations made by Walsh J., to which reference is made below, are to be seen in the context of the Extradition Act 1965, and not in connection with the Act of 2003. These observations were obiter. They are not ad rem, in that, they only peripherally touch on the issues which arise here. The protection identified in the Framework Decision, and in the Act of 2003, both explicit and implicit, are quite extensive. Further, insofar as concerns a European Arrest Warrant, those observations must now been seen through the prism of Murray C.J.’s very clear statements, contained in Brennan, to which reference has been made earlier. The extent to which such observations might be relevant in another scenario, does not arise in this appeal.
In Ellis, Walsh J. criticised what he characterised as “dubious” a policy, apparently then, on occasion, adopted by U.K. prosecutors, of laying charges of conspiracy accompanied by a charge relating to the substantive offence. He opined that the special rules of evidence, which apply to conspiracy, had demonstrated that it was not always desirable in the interests of justice to lay such a charge, if, for example, an innocent person might be convicted on ‘admissions’ made by a co-accused.
But, even on first impression, the context of those dicta differs very significantly from what is in question here; it is not claimed in this appeal that reliance will, or is likely to, be placed on ss. 74 and 75 of the Act of 1984 in a trial; there would appear to be substantial other evidence; the trial context in which ss. 74 and 75 of P.A.C.E. 1984 might be deployed differs significantly from the practise which Walsh J. deprecated; and the remarks were made in the context of the Extradition Act 1965, rather than the Act of 2003, which contains a range of provisions protective of rights. Edwards J. correctly comments, in the judgment appealed (MJ & E v Brennan  IEHC 321 at par. 44), to the effect that:
.... the evidence that has been adduced does not begin to approach what would be required to establish that the apprehended adduction of evidence of a co-conspirator’s convictions at the respondent’s trial, in the event that he is surrendered, would be so egregious, unfair and unjust that it would never be allowed in this jurisdiction.
This Court would not be justified, either, in inferring or presuming an absence of safeguards exist. On the contrary, we are bound by the presumption in the other direction, that arises under s.4A of the Act of 2003. It is by no means a fait accompli that ss. 74 and 75 of the Act will be deployed. The evidence of Mr. Morris went so far as to say, only, that:
It would certainly be open to the prosecution to make use of these provisions, and that there is no reason to believe that they would not attempt to do so.
Turning now to the terms of s.37(1)(a) of the Act of 2003, the Court would be entitled to refuse surrender on Article 6 grounds, were it satisfied there were substantial grounds for believing there was a real risk that the respondent would be subjected to a flagrant denial of justice at his trial. There is no such evidence to support the appellant’s claim. The matters in issue have been explored earlier. No ECtHR jurisprudence on the point has been opened to us. The facts in this case are very far from those which arose, for example, in Soering v U.K. (Ser. A No. 161 1989), where the ECtHR held that the extradition of a German national to the United States, to face charges of capital murder, would violate Article 3 ECHR guarantees preventing inhuman and degrading treatment. In the absence of other evidence to the contrary, the Court must act on the presumption prevailing by virtue of s.4A of the Act of 2003. I would, therefore, also answer the second question in the negative, and dismiss the appeal on this ground also.
all rights reserved