The Minister for Justice and Equality -v- Gordon

Factual and Procedural Background

The respondent is subject to a European arrest warrant issued by the United Kingdom on 23rd April 2013, endorsed for execution in this jurisdiction on 14th May 2013 under the European Arrest Warrant Act 2003. The warrant concerns four offences classified under the issuing state's law as terrorism offences involving possession of documents likely useful to terrorism. The warrant was executed on 17th May 2013, and the respondent was brought before the High Court, remanded in custody with a notional date fixed under the Act. The respondent subsequently expressed willingness to voluntarily surrender to the issuing state pursuant to section 15 of the Act.

Following a section 15 hearing on 2nd July 2013, during which the respondent confirmed his wish to voluntarily surrender, the Court made an order directing surrender. Immediately thereafter, two post-surrender applications were presented: one by the applicant seeking postponement of the surrender under section 18(1)(c) of the Act, and another by the respondent requesting conditional surrender under section 19. The respondent opposed the applicant’s postponement application. Given this was the first occasion the Court considered the interplay between sections 18 and 19, detailed arguments were sought and received.

Legal Issues Presented

1. Whether the Court should grant a postponement of the respondent's surrender pursuant to section 18(1)(c) of the European Arrest Warrant Act 2003, given the respondent is serving a domestic sentence.
2. Whether the Court should grant an order for conditional surrender under section 19 of the Act, allowing the respondent to be temporarily surrendered for trial while serving the domestic sentence.
3. The appropriate interpretation and application of sections 18 and 19 of the Act, particularly their interaction and compliance with article 6 of the European Convention on Human Rights regarding the right to a trial within a reasonable time.

Arguments of the Parties

Applicant's Arguments

• The Act is silent on the interaction between sections 18 and 19 but both may be invoked where a person is serving a sentence in the State.
• Section 18 applies regardless of whether the person has been convicted or sentenced in the issuing state and imposes no temporal limit on postponement.
• Section 19 applies only where the person has not yet been convicted in the issuing state and is surrendered for the purpose of trial; it should not be used if the trial date is unknown or the trial is not ready to proceed.
• Postponement under section 18 complies with article 6 ECHR, and the respondent did not raise delay as an issue in the surrender application.
• The respondent must demonstrate likely prejudice to oppose postponement; no evidence was presented that delay would impair a fair trial.
• Any delay caused by postponement relates to the respondent’s domestic sentence and not prosecutorial delay in the issuing state.
• Section 19 facilitates temporary transfer for trial but is discretionary; postponement is appropriate here given the circumstances.
• The discretion of the Court should be exercised in favor of postponement given the administrative, practical, and financial implications of temporary surrender and the respondent’s domestic sentence.

Respondent's Arguments

• Section 18 provides for postponement in three scenarios, including serving a sentence in the State; section 19 specifically applies where surrender is for the purpose of trial while serving a sentence.
• The applicant’s submission that section 19 cannot apply absent a known trial date is unsupported and contradicted by the plain language of section 19(2), which contemplates custody pending trial in the issuing state.
• Statutory construction principles require giving effect to section 19; to disregard it would render it surplusage, which is impermissible.
• The respondent’s surrender is for trial on offences alleged in 2010; he was released on bail in the issuing state but failed to answer bail due to his detention in this State.
• The respondent has expressly opposed postponement and seeks immediate conditional surrender to avoid further delay, invoking his right to a trial within a reasonable time under article 6(1) ECHR.
• The test for delay in prohibiting a trial (real and substantial risk of unfair trial) does not apply here, as the respondent seeks trial not prohibition.
• The Court must weigh the respondent’s right to a timely trial under article 6(1) against the State’s interest in sentence enforcement; article 6 requires no actual prejudice to establish a breach.
• Any delay caused by postponement would be attributable to State authorities and would be significant, infringing the respondent’s rights.
• The respondent disputes the applicant’s reliance on administrative or financial implications as justification for delay, noting lack of evidence on these points and that resource constraints do not justify trial delay when liberty is at stake.
• The only Convention-compliant exercise of discretion is to order conditional surrender under section 19 without postponement, vindicating the respondent’s rights under articles 6(1) and 5(3) ECHR.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court acknowledged the fundamental right to a trial within a reasonable time, protected under the Constitution and international human rights instruments including article 6 of the ECHR. It noted that the right is not absolute and requires a balancing exercise considering the complexity of the case, conduct of parties, and prejudice to the accused.

The Court examined the statutory framework of sections 18 and 19 of the European Arrest Warrant Act 2003, as amended, and their transposition of article 24 of the Framework Decision. Section 18 allows postponement of surrender on certain grounds, including where the person is serving a sentence in the State. Section 19 permits conditional surrender for trial, with conditions including return to serve the remainder of the sentence.

Considering the respondent’s situation—serving a domestic sentence but sought for trial in the issuing state—the Court found section 19 to be the more specific provision applicable to such circumstances. It rejected the applicant’s submission that section 19 cannot apply absent a trial date, emphasizing the statutory language expressly contemplates custody pending trial in the issuing state.

The Court recognized the respondent’s right to a timely trial and balanced this against the State’s sovereign interest in enforcing its sentence. It noted that the respondent’s domestic sentence was approaching its end, which lessened the imperative for postponement compared to a longer sentence.

Further, the Court considered international jurisprudence, including the U.S. Supreme Court's balancing test for speedy trial rights and European Court of Human Rights case law, to underscore the importance of avoiding undue delay that might prejudice the accused’s ability to defend himself and cause anxiety and oppression.

The Court also took into account the issuing state’s assurances that it has mechanisms to facilitate temporary surrender with undertakings for the respondent’s custody and return. It concluded that conditional surrender under section 19, subject to appropriate written undertakings, would best vindicate the respondent’s rights without unduly compromising the State’s interests.

Accordingly, the Court indicated its disposition to grant a section 19 order but would await receipt of necessary undertakings from the issuing state before doing so. It also stipulated that the temporary transfer would only occur once a trial date or pre-trial procedural hearing date had been set.

Holding and Implications

The Court’s final decision was to DISPOSE of the applications by indicating its intention to make an order for the conditional surrender of the respondent under section 19 of the European Arrest Warrant Act 2003, subject to receiving satisfactory written undertakings from the issuing state regarding custody, maintenance in custody, and prompt return to serve the remainder of the domestic sentence.

The Court emphasized that the temporary transfer would only proceed once a trial or pre-trial procedural hearing date had been fixed by the issuing state. This approach balances the respondent’s right to a timely trial with the State’s interest in sentence enforcement and respects the statutory framework and international obligations.

No new precedent was set by this decision; however, it represents the first judicial consideration in this jurisdiction of the interplay between sections 18 and 19 of the Act and clarifies the Court’s approach to conditional surrender and postponement in such contexts.