THE  HIGH  COURT
2004 3EXT.
IN THE MATTER OF AN APPLICATION FOR AN INQUIRY UNDER ARTICLE 40.4.2 OF THE CONSTITUTION
AND IN THE MATTER OF THOMAS JAMES O’ROURKE PRESENTLY IN CUSTODY IN CLOVERHILL

BETWEEN:
THOMAS JAMES O’ROURKE
APPLICANT

AND

THE GOVERNOR OF CLOVERHILL PRISON
RESPONDENT

Judgment of Mr Justice Michael Peart delivered the 26th February 2004:

The applicant was arrested in this jurisdiction on the 13th January 2004 on foot of three warrants of arrest which were issued on the 18th December 2003 by the Crown Court at Kingston Upon Thames, England. These warrants are in respect of charges of robbery, conspiracy to rob, and agreeing to do certain acts with intent to pervert the course of justice. The offences are said to have been committed between September 2001 and January 2002.

Upon his arrest he was brought before the High Court on 13th January 2004, pursuant to the provisions of section 45 of the Extradition Act 1965, as amended (“the 1965 Act”). Thereafter he has been remanded in custody pending the hearing of the application for an order for his rendition to the United Kingdom pursuant to the provisions of Section 47 of the 1965 Act.

An application has now been made on his behalf for his release pursuant to Article 40.4.2 of the Constitution, and it is contended by Kieran Kelly BL, on his behalf, that his detention is unlawful. It is contended that in this case, following the coming into force of the European Arrest Warrant Act, 2003 (“the 2003 Act”) on the 1st January 2004, the applicant cannot be dealt with, as he has been, under the provisions of Part III of the 1965 Act, as amended, since that Part has been repealed by Section 50 of the 2003 Act, and remains in force only in certain circumstances  set forth in section 50 (2) (a) and (b) of the 2003 Act, and which, in the applicant’s submission, do not apply in this case. As a result it is submitted that the Assistant Commissioner of An Garda Siochana who endorsed these warrants on the 2nd January 2004 was not entitled to do so pursuant to the provisions of section 43 of the 1965 Act, since that section was spent since the previous day, the 1st January 2004.

Section 1(2) of the 2003 Act states clearly that the Act comes into operation on the 1st January 2004.

Section 4(1) of the 2003 Act provides that subject to subsections (2) and (3) (which are not relevant to this application), “this Act shall apply in relation to an offence, whether committed or alleged to have been committed before or after the commencement of this Act.”

These offences, as I have already referred to, are alleged to have been committed between September 2001 and January 2002, so they are clearly before the commencement of the Act. 

However, section 50(2) of the 2003 Act provides as follows:

“50. – (2)  Where, before the commencement of this Act, a warrant issued by a judicial authority in a place in which Part III of the Act of 1965 applies was – 
(a)	produced to the Commissioner of the Garda Siochana for the purposes of section 43 of the Act of 1965, or
(b)	endorsed for execution under that Part,
then, notwithstanding the repeal of the said Part III effected by subsection (1), that Part shall, on and after the said commencement, continue to apply in relation to that warrant and the person named in that warrant shall be dealt with under and in accordance with that Part.”

In this case the evidence of Sgt Michael Heffernan of An Garda Siochana is that these warrants were received in the office of The Commissioner of An Garda Siochana at Garda Headquarters from the Metropolitan Police on the 22nd December 2003. He has stated that upon receipt of the warrants on that date, copies were sent to the Attorney General for the purpose of obtaining a direction, if any, from the Attorney General, as is required by Section 44 of the 1965 Act, as amended. Having heard back from the Attorney General on the 24th December 2003, the warrants were duly endorsed by the Assistant Commissioner on the 2nd January 2004.

Of central importance in this application, therefore, is whether the receipt of the warrants in the office of the Commissioner of An Garda Siochana constitutes the warrants being “produced” for the purposes of section 43(1)(b) of the 1965 Act, and therefore also for the purposes of section 50 (2)(a) of the 2003 Act. If this is correct, then the applicant’s detention is lawful, since the situation is covered by the transitional arrangements set forth in section 50(2) of the 2003 Act.

The alternative contention, put forward by the applicant, is that receipt of the warrants by the Commissioner’s office does not amount to their production to him for endorsement for the purposes of section 43 of the 1965 Act, and that the warrants were not “produced” for these purposes until they were actually before him on 2nd January 2004 when he signed them. If that is correct, then section 50(2) of the 2003 is inapplicable, and the warrants could not have been properly endorsed, and the applicant’s arrest would be unlawful, and therefore he was not properly before the court on the 13th January 2004, and his detention thereafter has been unlawful.

In determining the correct interpretation of the word “produced” it is relevant to refer to the provisions of section 44(1) of the 1965 Act. That section provides:

“44. – (1)  A warrant shall not be endorsed for execution under this Part if the Minister, or the High Court, on the question being referred to the Court by the Minister, directs in accordance with this section that it shall not be so endorsed.”
I should also refer to the fact that under section 42 of the 1965 Act, the words “Commissioner of the Garda Siochana” and “Commissioner” is stated to include a Deputy Commissioner and an Assistant Commissioner. 

This section makes it quite clear that before the Commissioner is permitted to endorse the warrants for execution under the provisions of section 43(1)(b) of the 1965 Act, he must consult the Minister after the warrants have been received by him. There is therefore a two-step process involved. Clearly section 44 does not come into play until the warrants have been produced to the Commissioner, since until he has the warrant he cannot refer it to the Minister for his direction under section 44 of the Act. In my view therefore, it cannot be so that the “production” of the warrant to the Commissioner after the Minister has been consulted is what constitutes the warrant being “produced” to the Commissioner for the purposes of Section 43(2)(b) of the 1965 Act. Otherwise there is no legal basis for the Commissioner referring the matter on to the Minister.

The scheme of the Act, in my view, does not envisage that the views of the Minister are to be obtained other than by the Commissioner contacting him in that regard following the production of the warrant to him. It is suggested by Mr Kelly that the Act does not mandate that the Commissioner make contact with the Minister, and he submits that the wording of section 43 is prohibitory rather than mandatory, in the sense that it is provided in section 44(1) of the 1965 Act that a warrant shall not be endorsed if the Minister directs that it shall not be endorsed. 

In interpreting a statute, this Court must, amongst other things, where necessary, refer to the entire Act in order to glean the intention of the legislature in relation to a particular provision. 

Section 43 and section 44 of the 1965 Act, compel me to the conclusion that the intention of the Oireachtas was that the warrant is produced to the Commissioner when it is received, and not simply when it is finally before him on the date when he places his signature upon it for the purposes of endorsing it for execution. The scheme of the Act is consistent with that. If I were to find otherwise it would lead to an absurd situation whereby the Act has provided that the Commissioner shall endorse the warrant after it is produced to him, and that he may not sign it until the Minister has confirmed that he is not directing that he should not so endorse it, but that the receipt of the warrant by the Commissioner from the judicial authority has no legal basis in effect, and that in that event there is no machinery by which the Minister’s views are to be obtained. It would make no sense in my view to put such a literal interpretation on the words of the Act as is contended for by Mr Kelly.

It has also been submitted by Mr Kelly that since the term “Commissioner” has been defined in the Act, as including only the Deputy or Assistant Commissioner, the receipt of the warrant in the office of the Commissioner cannot be “production” for the purpose of the Act. However, I am satisfied that the definition is intended to allow for the actual endorsement of the warrant to be made by the Deputy or Assistant Commissioner, but it could not mean that, and does not preclude the occurrence that the staff of Garda Headquarters might be the people who actually sign for the warrant when it arrives from the foreign judicial authority. 

It follows therefore that the provisions of section 50 (2) (a) of the 2003 Act are applicable in this case, and that the applicant was therefore lawfully arrested on the 13th January 2004, and was therefore also lawfully before the High Court on the 13th January 2004, when he was remanded in custody, and that his detention thereafter has been and remains lawful. 

I therefore refuse the application for his release.