Minister for Justice v Keating (Approved)

Factual and Procedural Background

The Applicant, Minister for Justice, seeks an order for the surrender of the Respondent to the United Kingdom on a Trade and Co-Operation Agreement warrant ("TCAW"). The warrant was endorsed by the High Court on 17 August 2023. The Respondent was arrested on 14 September 2023 and remanded in custody since that date. The TCAW was issued by an issuing judicial authority in the United Kingdom on 24 November 2022, relating to nine offences including conspiracy to possess firearms, ammunition, prohibited weapons, and conspiracy to pervert the course of justice. The Respondent delivered points of objection in November 2023, raising constitutional and legal concerns about the surrender process and the correspondence and territoriality of the alleged offences.

Legal Issues Presented

1. Whether the surrender of the Respondent pursuant to the TCAW violates the constitutional right to liberty under Article 40.4 of the Constitution due to uncertainty arising from temporary surrender while serving a sentence in this jurisdiction.
2. Whether the offences alleged in the United Kingdom correspond to offences under the law of this State.
3. Whether the alleged offences, partly committed outside the territory of the Requesting State, engage the prohibition on surrender under section 44 of the European Arrest Warrant Act 2003 (as amended) due to extra-territoriality.
4. Whether the Respondent would be exposed to prison conditions or treatment in the United Kingdom that would violate rights under the Constitution and the European Convention on Human Rights, thus barring surrender under section 37 of the 2003 Act.

Arguments of the Parties

Respondent's Arguments

• The Respondent argues that temporary surrender while serving an Irish sentence creates legal and factual uncertainty infringing his constitutional right to liberty under Article 40.4.
• The Respondent contests the correspondence of the offences alleged in the United Kingdom with offences under Irish law.
• The Respondent submits that some alleged offences were committed outside the United Kingdom, and as Irish law does not allow prosecution for such extra-territorial offences on the same basis, surrender should be refused under section 44 of the 2003 Act.
• The Respondent contends that surrender would expose him to prison conditions in the United Kingdom that violate his rights under Articles 3 and 8 of the European Convention on Human Rights and section 3 of the European Convention on Human Rights Act 2003, due to overcrowding, inter-prisoner violence, and inadequate prison system resources.

Applicant's Arguments

• The Applicant acknowledges the constitutional requirement for legal certainty in deprivation of liberty but denies that the current surrender request creates such uncertainty, stating that temporary surrender issues arise only after a surrender order is made.
• The Applicant submits that the TCAW and section 19 of the 2003 Act provide a framework ensuring certainty and procedural safeguards regarding temporary surrender.
• The Applicant contends that the alleged offences correspond to offences under Irish law, specifically conspiracy to possess firearms, prohibited weapons, ammunition, and conspiracy to pervert the course of justice.
• The Applicant argues that the offences were committed in the United Kingdom, with the Respondent physically present in that jurisdiction when participating in the conspiracy, thus section 44 of the 2003 Act is not engaged.
• In the alternative, even if extra-territoriality applies, the Applicant submits that Ireland would exercise jurisdiction on a similar basis, satisfying the requirements of section 44.
• Regarding prison conditions, the Applicant submits there is no sufficient evidence of a real risk of inhuman or degrading treatment in the United Kingdom prisons to bar surrender, emphasizing mutual trust between member states and the absence of specific indications of breach of rights.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first confirmed the identity of the Respondent as the person named in the TCAW and found that the minimum gravity requirement under the 2003 Act was met. It then addressed the Respondent's constitutional objection concerning temporary surrender, concluding it was premature to consider this issue before a surrender order is made and a separate application for temporary surrender arises. The court relied on section 19 of the 2003 Act and existing case law to affirm that legal certainty is maintained within the statutory framework.

Regarding correspondence, the court applied established principles to determine that the offences alleged correspond to offences under Irish law, including conspiracy to possess firearms and ammunition and conspiracy to pervert the course of justice. The court rejected the Respondent's argument that correspondence was lacking.

On the issue of extra-territoriality under section 44, the court undertook a detailed analysis of the facts, legal provisions, and relevant case law. It found that the conspiracy offences were committed while the Respondent was physically present in the issuing state and that the locus of the intended perversion of justice was in the United Kingdom. The court applied the conjunctive test from section 44 and concluded that the Respondent failed to satisfy the conditions required to bar surrender under this section.

Additionally, the court considered whether Ireland would exercise extra-territorial jurisdiction in similar circumstances and concluded affirmatively, applying the 'factual reciprocity' test endorsed by the Supreme Court. This supported the conclusion that surrender was not barred on jurisdictional grounds.

Finally, the court examined the Respondent's human rights objections related to prison conditions in the United Kingdom. It reviewed reports and submissions concerning overcrowding, inter-prisoner violence, and systemic issues. The court found that while concerns exist, there was no evidence of a real or substantial risk of inhuman or degrading treatment as required to refuse surrender under section 37 of the 2003 Act and Articles 3 and 8 of the European Convention on Human Rights. The court emphasized the presumption of good faith and mutual trust between member states and was not persuaded to seek assurances or refuse surrender on this basis.

Holding and Implications

The court DISMISSED all grounds of objection raised by the Respondent and ORDERED the Respondent's surrender pursuant to section 16 of the European Arrest Warrant Act 2003 (as amended).

The direct effect of this decision is to permit the Respondent's extradition to the United Kingdom to face prosecution for the offences specified in the TCAW. The court did not establish new legal precedent but applied existing principles on constitutional rights, correspondence, extra-territorial jurisdiction, and human rights protections in the context of surrender under the 2003 Act and the Trade and Co-Operation Agreement framework.