A man arrested in Ireland on foot of two European Arrest Warrants has successfully objected to his surrender to the UK, due to the risk of him being subjected to inhumane and degrading treatment in Maghaberry Prison.
Directing the Minister for Justice and Equality to seek further information regarding the treatment of vulnerable prisoners in Maghaberry Prison before the man’s surrender could be reconsidered, Ms Justice Donnelly took into consideration a recent report which highlighted the substandard conditions in the Prison.
The surrender of alleged murderer and rapist, RO, was sought by the UK on foot of two EAWs in 2016. In respect of both, RO argued that his surrender was:
- prohibited by Section 11(1A)(f) of the European Arrest Warrant Act 2003, and Article 8(e) of the 2002 Framework Decision in that neither EAW sufficiently specified the matters required.
- contrary to s. 37 of the European Arrest Warrant Act 2003, his constitutional rights, and ECHR rights, in that he would face inhuman and degrading treatment in Maghaberry Prison.
- prohibited due to Brexit, and where a withdrawal from the EU would have the effect of voiding any obligations of the regime established pursuant to the Council (EC) Framework Decision of 13th June 2002 (2002/584/JHA) on the European Arrest Warrant and the surrender procedures between member states and the European Arrest Warrant Act 2003, as amended. He claimed that the safeguards and protections afforded to persons surrendered pursuant to the European Arrest Warrant Act 2003 would be set at naught.
In regards to the second EAW, RO made an objection on the grounds of delay.
Considering Minister for Justice, Equality and Law Reform v. Dolny  IESC 48, if the EAWs were read it was “abundantly clear” that RO was sought for the offences of murder and arson for the first EAW, and for the offence of rape for the second EAW.
There was no substance in the submission that there was insufficient detail for the purposes of s. 11(1A)(f) of the European Arrest Warrant Act 2003, and this submission was “somewhat contrived”.
The Court was satisfied that both EAWs contained sufficient detail for the purposes of s. 11(1A)(f) of the European Arrest Warrant Act 2003 and that RO’s surrender was not prohibited thereunder.
Inhuman and degrading treatment
RO claimed that his surrender on foot of these EAWs would be in breach of s. 37 of the European Arrest Warrant Act 2003 due to a real risk that he would be subjected to inhuman and degrading treatment in Maghaberry Prison on surrender.
Under s.37(1)(c)(iii)(II), a person shall not be surrendered if there are reasonable grounds for believing that “he or she would be tortured or subjected to other inhuman or degrading treatment.”
In Minister for Justice, Equality and Law Reform v Rettinger  IESC 45, in accordance with the case law of the ECtHR, it was held that establishing a probability of ill-treatment was not necessary, rather a real risk of ill-treatment is sufficient. The ill-treatment could not however be a “mere possibility”.
Rettinger also set out the procedural basis for establishing whether such a real risk exists:
- There is a burden on the respondent to adduce cogent evidence capable of proving that there are substantial grounds for believing that he or she would be exposed to a real risk of being subjected to treatment prohibited by Article 3 of the ECHR.
- The Court is entitled to attach importance to reports of independent human rights organisations and to governmental sources.
- The Court is also open to an issuing state to dispel doubts raised by the respondent’s evidence but in doing so, the burden is not to be taken as having shifted.
- The Court is required to be forward looking in its approach and it also must engage in a rigorous examination of the information placed before it.
- The Court must be mindful of the presumption that an issuing state will comply with its obligations regarding fundamental human rights.
Justice Donnelly explained that the CJEU subsequently endorsed the same test as that identified in Rettinger.
Justice Donnelly emphasised that the Minister for Justice and Equality had a duty under s.20(2) of the European Arrest Warrant Act 2003 to seek further information from the issuing judicial authority or issuing state.
Finding the 2016 Report of the U.K. national preventive mechanism to be the most relevant report; Justice Donnelly stated that this report established that there was a significant response to the criticism of Maghaberry prison made in the 2015 Report, but that it was concerning that the 2016 Report stated that levels of violence were still too high and “that a significant amount of work was still outstanding to make Maghaberry safer and for this to reflect more positively in prisoners’ experiences”.
The Court was satisfied on the evidence that:
- Maghaberry is where RO would likely be detained.
- RO was a vulnerable prisoner because of the offence and because of specific threats to his life.
- RO had issues arising from a stroke which must be considered in conjunction with his vulnerability.
In all the circumstances, the Court was satisfied that specific and updated information concerning the conditions of detention in Maghaberry prison that give rise to concern that there is a real risk that RO, by virtue of his vulnerabilities, will be subjected to inhuman and degrading treatment.
In the circumstances, the Court exercised its power under s. 20(1) of the European Arrest Warrant Act 2003 to seek further information from the UK authorities as to the conditions in which RO would be held should he be surrendered.
The “Brexit” point
The central point in this argument was rejected by the High Court in its decision in Minister for Justice v. O’Connor  IEHC 518.
That decision is the subject matter of an application for leave to appeal directly to the Supreme Court.
Since the Court sought further information from the UK authorities, Justice Donnelly stated that the Court was not able to finalise its overall decision as to surrender. As such, Justice Donnelly explained that she would not finalise the determination on the Brexit point at this juncture.
As regards the delay, RO did not meet the tests laid down in Minister for Justice, Equality and Law Reform v. Stapleton  IEHC 43 and Minister for Justice, Equality and Law Reform v. Brennan  IEHC 94 to prohibit his surrender on the grounds of flagrant denial of justice.
Although it was unnecessary to adjudicate on the matter considering the findings above, the Court was not satisfied on the evidence that RO would succeed in this jurisdiction in preventing his trial based on the lapse of time.
Furthermore, the Court was satisfied that Brexit would not affect those tests.
- by Seosamh Gráinséir for Irish Legal News