High Court is entitled to consider its own motion for granting bail to man sought pursuant to European Arrest Warrant

About this case:

• Judgment:
  External link

Where the man had not made an application for bail, but where it was almost certain that he would be further remanded pending the outcome of the “Brexit issue”, Ms Justice Aileen Donnelly said it was important to clarify the extent of the Court’s responsibility to protect the right to liberty.

Finding that there was no legislative provision preventing it from considering bail, of its own motion; the Court invited the Minister for Justice and Equality to make submissions on why bail should be refused.

Background

The United Kingdom sought the surrender of TM for the purpose of criminal prosecution – accordingly he was arrested on 3rd May 2017 on the EAW issued.

Ms Justice Donnelly explained that TM has never made an application for bail.

TM’s case has been adjourned pending the outcome of Minister for Justice and Equality v. O’Connor (Supreme Court IEHC 518), in which the Supreme Court made a referral to the Court of Justice of the European Union seeking a preliminary ruling on the impact of Brexit on EAW surrender procedures.

Earlier in the proceedings, the Court ordered a psychiatric report – in which it was concluded that there was no evidence of a major mental illness. The Consultant Forensic Psychiatrist who provided the report said that TM was stable; able to give a coherent account of himself and his current thoughts; and had capacity to understand, retain, and use information given to him to reach an informed opinion and decision. Accordingly, the Consultant was of the opinion that TM was fit to attend court and stand trial.

Jurisdiction to grant bail

Since TM will “almost certainly be further remanded” after June 2018, Ms Justice Donnelly said that the Court had “grave concerns about whether it should continue to remand him in custody, in circumstances where no inquiry has ever been made by the Court as to whether he is a person entitled to bail… Despite the potential for not to take up court granted bail, the responsibility of the High Court to protect the right to liberty and/or the extent of that responsibility, is nonetheless important to clarify where such a fundamental right is at stake”.

Where no application for bail has been made by TM, Ms Justice Donnelly explained that the Court was presented with a highly unusual question: “is the High Court, as executing judicial authority, entitled, of its own motion, to consider granting bail to a person sought for surrender pursuant to a European Arrest Warrant?”

Ms Justice Donnelly said that the principles set out in Attorney General v O’Callaghan IR 501 would apply to any considerations as to whether he should be granted bail – i.e. the presumption of innocence leads to a presumption of entitlement to bail, and it is for the State to show likelihood of flight or interference with witnesses.

The High Court’s power to grant bail “of its own motion”

Ms Justice Donnelly emphasised that the right to liberty is a fundamental right; adding that the “High Court, pursuant to common law, under the Constitution and also by virtue of its responsibilities under the Framework Decision, has a duty to protect that right”.

Objecting to the Court raising the issue of bail, the Minister for Justice and Equality said that there were no legal provisions permitting the Court to do so.

According to Ms Justice Donnelly, the correct approach was “to consider the ancient and fundamental jurisdiction as regards the granting of bail that the High Court exercises at common law and under the Constitution; a jurisdiction that the Bail Act 1997 has not curtailed”.

Furthermore, the High Court could also exercise an inherent jurisdiction to grant bail in cases of surrender under the European Arrest Warrant Act 2003. Section 13(5)(a) of European Arrest Warrant Act 2003 declares affirmatively that the “High Court shall…remand the person in custody or on bail (and, for that purpose, the High Court shall have the same powers in relation to remand as it would have if the person were brought before it charged with an indictable offence) ”.

Ms Justice Donnelly said it was important to consider that there is no legal provision, whether legislative, at common law or constitutional, which prevents the High Court from exercising this power of its own motion.

Furthermore, it was held in Rice v Mangan 3 IR 1 that the District Court can revoke or amend bail without an application from the prosecution (or any party) – as there was nothing in the Criminal Procedure Act of 1967 which prevented the District Court from so doing.

Ms Justice Donnelly said that this reasoning applied “with even greater force to the High Court where the bail legislation does not prevent such an exercise of jurisdiction, where the High Court’s jurisdiction as regards bail is recognised under the Constitution and at common law, and where the High Court exercises inherent jurisdiction in granting bail in extradition cases”.

If the High Court can amend or revoke bail of its own motion, there is no principled reason why it cannot grant bail of its own motion. Without clear legislative provision to the contrary, Ms Justice Donnelly said that the High Court could not restrict its power to ensure that no person is deprived of their liberty save in accordance with law.

“Fundamentally therefore… the constitutional protection of the right to liberty and the overall jurisdiction of the High Court as regards bail matters, permits the High Court in a case before it to enquire of its own motion about bail and indeed, in certain cases, may compel the High Court to make such enquiry”.

In accordance with fair procedures, Ms Justice Donnelly invited the Minister to make submissions on why he asserts that TM should be refused bail.

Copyright © Irish Legal News Ltd 2018