Minister for Justice and Equality v Harrison [2020] IEHC 29 (24 January 2020)

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JUDGMENT of Mr. Justice Binchy delivered on the 24th day of January, 2020

1. By this application, the applicant seeks an order for the surrender of the respondent to

the United Kingdom pursuant to a European Arrest Warrant dated 30th October, 2019

(“the EAW”). The EAW was issued by District Judge Michael Snow, a District Judge of the

Magistrates’ Court sitting at Westminster Magistrates’ Court as issuing judicial authority.

2. The EAW was endorsed by the High Court on 31st October, 2019, and the respondent was

3. This application was first opened in this Court on 21st November, 2019, on which date

this Court made an order pursuant to s. 20 of the European Arrest Warrant Act 2003 (as

amended) (“the Act of 2003”) requiring the provision of additional information. The letter

requesting this information was sent to the Central Authority in the United Kingdom on

26th November, 2019. A reply was sent not by that authority, but by the Crown

Prosecution Service, Organised Crime Division, London (“CPS”) on 4th December, 2019.

The reply comprises a letter of that date and a 36 page document entitled “Response to

request for additional Information”. The hearing of this application then proceeded before

4. At the hearing of the application, I was satisfied that the person before the Court is the

person in respect of whom the EAW was issued and in any case this was not denied by

5. I was further satisfied that none of the matters referred to in ss. 22, 23 and 24 of the Act

of 2003 arise and that the surrender of the respondent is not prohibited for any of the

reasons set forth in any of those sections. An objection was raised, however, on behalf of

the respondent, that his surrender is prohibited by s. 21A of the Act of 2003, and I

6. The EAW states at para. (b) that the decision on which the EAW is based is an arrest

warrant dated 29th October, 2019, issued at Chelmsford Magistrates’ Court by Justice of

the Peace, Mr. C. Stokes and describes the type of warrant as being: “Accused”.

7. At para. (c) of the warrant it is stated that the maximum length of the custodial

sentences or detention orders which may be imposed upon the respondent, if convicted of

(2) Conspiracy to commit a human trafficking offence under s. 2 of the Modern Slavery

Act, contrary to s. 1(1) of the Criminal Law Act 1977, Immigration Act 1971 – life

(3) Conspiracy to assist unlawful immigration under s. 25 of the Immigration Act 1971,

contrary to s. 1(1) of the Criminal Law Act 1977 – 14 years’ imprisonment.

(Later in the EAW, at para.s (e)(2) and (e)(3), the reference to the Criminal Law Act 1977 is

mistakenly stated as the Criminal Law Act 1971. However, in the further information of

4th December, 2019, reference to the Criminal Law Act of 1971 is corrected to the

8. It is apparent from the above that the requirements as to minimum gravity of each of the

9. At para. (e) of the EAW it is stated that the warrant relates to a total of 41 offences.

Particulars of the offences are briefly stated and since this is an issue of some significance

in this application, I will set out the same exactly as stated in the EAW, as follows:

“The case against Eamon Harrison relates to the trafficking and subsequent deaths

of 39 people within an artic trailer unit GTR1 28D. At 01:38 on Wednesday 23

October 2019 Essex Police received a call from the East of England Ambulance

Service stating that they were getting reports of 25 illegal immigrants not breathing

within a lorry in the area of Eastern Avenue, Waterglade Industrial, West Thurrock,

Essex. Police attended the scene. The driver of the lorry was standing at the back

of the trailer. He was later identified as Maurice Robinson. Inside the trailer was a

total of 39 people, 8 females and 31 males who were all deceased. Enquires

revealed that the trailer unit GTR1 28D had been delivered by a lorry BB221 3BP to

Zeebrugge, Belgium before being transported to the UK where it was collected by

Maurice Robinson from the Port of Purfleet, Essex. On 22 October 2019 Eamon

Harrison has been identified as the driver of the lorry BB221 3BP which was used to

deliver the trailer unit GTR1 28D to the port in Zeebrugge. CCTV, taken several

hours before at a truck stop in Veurne, Belgium shows Eamon Harrison to be the

driver of BB221 3BP. That lorry deposited the trailer unit, GTR1 28D at Zeebrugge

for its onward transmission to Purfleet, Essex. A shipping notice provided at

Zeebrugge when the tractor unit arrived at the gate was signed in the name

‘Eamonn Harrison’. Eamon Harrison travelled back to Ireland in the lorry BB221

10. Particulars of the offences alleged against the respondent are set out immediately after

The offence is made out if it is proved that the accused intentionally did an unlawful

(2) Conspiracy to commit a human trafficking offence under section 2 of the Modern

Slavery Act 2015, contrary to section 1(1) of the Criminal Law Act 1971 (sic). A

person commits an offence if the person arranges or facilitates the travel of another

(3) Conspiracy to assist unlawful immigration under section 25 of the Immigration Act

1971, contrary to section 1(1) of the Criminal Law Act 1971 (sic). A person

commits an offence if he does an act which facilitates the commission of a breach of

immigration law by an individual who is not a citizen of the European Union.

The offence of conspiracy is made out if a person agrees with any other person or

persons that a course of conduct shall be pursued which will necessarily amount to

11. Two paragraphs on from the particulars of the offences set out above, it is stated by the

“I am satisfied that a Crown Prosecutor in the Crown Prosecution Service, whose

function is to decide whether or not to prosecute an individual for the alleged

commission of criminal offences, has decided to charge the person named herein

and to try him for the offences specified above and for which this warrant is

12. Thereafter, at para. (e) I, the issuing judicial authority has ticked the box referable to

“trafficking in human beings”, leaving un-ticked the remaining boxes in this part of the

EAW. At para. (e) II, under the heading “full description of offences not covered by

Conspiracy to assist unlawful immigration under section 25 of the Immigration Act

1971, contrary to section 1(1) of the Criminal Law Act 1971 (sic).”

13. Undated points of objection were initially delivered in response to the EAW. Thereafter,

amended points of objection were delivered in response to both the EAW, and the

additional information furnished by the CPS on 4th December, 2019. For the purpose of

this judgment, reference hereafter to the points of objection is to the amended points of

objection. Before addressing the same however, it is necessary to summarise the

additional information submitted by the CPS by letter dated 4th December, 2019. As

mentioned above, this information was provided in response to a letter sent by the

Central Authority in this jurisdiction, at the direction of this Court, pursuant to s. 20 of the

1. Clarification as to which of the offences the issuing judicial authority claims fall

within Article 2.2 of the Framework Directive (sic). This clarification was sought in

In its reply to this enquiry, the CPS stated that it is invoking Article 2.2 of the

Framework Decision in respect of all of the offences described in the EAW.

2. Detailed particulars were requested in relation to each of the 41 offences referred to in

the EAW, but on the basis that all of the manslaughter offences could be grouped

together on the assumption that the circumstances alleged to have caused death in each

case are identical. In reply, the names of all of the deceased are provided. It is stated

that the charges of manslaughter are “at present” put on an alternative basis:

(i.) The unlawful act of manslaughter on or before 24th October, 2019, carried out

through assisting the unlawful immigration of 39 persons into the UK with a view to

(ii.) Gross negligence manslaughter on or before 24th October, 2019, on the basis that

the respondent owed a duty of care to the deceased persons, which he breached by

transporting them in the trailer unit GTR1 128D, attached to tractor lorry B221 3BP,

and by delivering the trailer unit containing those persons to Zeebrugge Port in

Belgium on 22nd October, 2019, and causing them to travel unaccompanied inside

the trailer unit on a ferry crossing journey of nine hours and that the said breach of

14. It is alleged that the respondent drove the trailer unit in which the deceased were being

transported to Zeebrugge on 22nd October, 2019. Prior to that, it travelled around

Belgium and France, arriving in Zeebrugge at 13:54 hours. The cargo is recorded as

biscuits. CCTV footage from Zeebrugge Port at the time identifies the respondent as the

driver who delivered the trailer in which the deceased were transported. The trailer was

loaded on to the MV Clementine one hour later at 14:55 hours, and that vessel set sail

just five minutes later, at 15:00 hours. No request was made to connect the trailer to an

electricity supply for refrigeration, and port officials confirmed that the refrigeration unit

was not turned on. The journey to Purfleet Port usually takes around nine hours.

15. The MV Clementine arrived Purfleet Port at 00:30 hours on 23rd October, 2019, and the

trailer unit was unloaded at 00:56 hours and was collected by a lorry cab number

B3901BH which left the port with the trailer at 01:08 hours on 23rd October, 2019. At

01:38 hours on that date, the driver of that vehicle, Mr. Maurice Robinson telephoned the

emergency authorities informing them that there were immigrants in the trailer and that

they were not breathing. When paramedics arrived at the scene, they found 39 bodies in

the back of the trailer and all were dead. Mr. Robinson was arrested on suspicion of

murder. After Mr. Robinson’s arrest, on the same day, a Mr. Ronan Hughes made a

number of phone calls to the respondent. It is stated in the additional information that

Mr. Hughes recruited Mr. Robinson and the respondent in his haulage business.

16. While the results of post-mortem examinations are awaited, early indications are that all

of the deceased died from hypoxia (starvation of oxygen). Hyperthermia may also have

been a factor in their deaths. The refrigeration unit in the trailer was not switched on.

The temperature records in the trailer indicate that from 10:35 hours on Tuesday 22nd

October the temperature in the unit rose consistently until 22:55 hours on that day when

it reached its highest level of 38.5 degrees. Thereafter it steadily reduced. Bloody hand

17. It is stated that the exact time and place of death is not known. Coast guard data

indicates that the MV Clementine entered UK territorial waters at 19:43 hours on 23rd

October, 2019 (this would appear to be an error and should instead state 22nd October,

18. Mobile telephones of the deceased were examined and it is stated that analysis of the

material downloaded from those phones demonstrates that some of the victims died in UK

territorial waters. Audio recordings on the devices after the vessel entered UK territorial

waters record multiple voices, and persons struggling to breathe.

19. Other information regarding the activities of the respondent is also provided. It is stated

that the respondent is believed to have been involved in the transportation of illegal

migrants from Zeebrugge Port to Purfleet Port on 10th/11th October, 2019, and again on

17th/18th October, 2019. On the latter occasion, the same trailer as that used to

transport the deceased migrants on 22nd/23rd October, 2019 was used. The respondent

20. It is stated that on 9th May, 2018, the respondent was stopped at Coquelles, France,

driving a trailer unit in which 18 Vietnamese migrants were discovered. Ronan Hughes

was named as the haulier. Mr. Robinson has admitted, at interview, to smuggling

migrants into the UK on several occasions and having been paid, by Ronan Hughes,

£1,500 per person smuggled. Mr. Robinson has pleaded guilty to conspiracy to assist

unlawful immigration and to one count of money laundering. Charges of manslaughter

21. A Mr. Christopher Kennedy was arrested on 22nd November, 2019, and has admitted to

being the driver of the lorry used in the operations of 11th October, 2019, and 18th

October, 2019. He has been charged with two offences of conspiracy, one in respect of

human trafficking and the other in relation to assisting unlawful immigration.

22. It is stated that there is “a wealth of circumstantial evidence” namely CCTV evidence,

ANPR data evidence, telephone evidence and cell site analysis relating to Harrison,

Hughes, Robinson, Kennedy and others on relevant dates from the UK, CCTV, ANPR data,

surveillance and other evidence from other countries (Belgium, Bulgaria, France and the

23. It is stated that mobile telephone data and other evidence indicate that Ronan Hughes

was in contact with Mr. Robinson and the respondent throughout October, and that it is

believed that the respondent discarded his mobile telephone after 23rd October.

However, a study of his telephone records indicate that it was used on dates between

24. Although the fate of the deceased migrants received extensive publicity, the respondent

made no effort to contact police in the UK or other law enforcement authorities, in spite of

his role in delivering the trailer in which they were transported to Zeebrugge Port.

Instead, he discarded his mobile telephone, thereby obstructing the course of any

25. Returning to the letter seeking further information, the issuing judicial authority was

asked to provide detailed information of the acts of the respondent relied upon for the

purposes of charging him with each individual offence, and in particular where each and

every constituent element of each offence is alleged to have taken place. The letter also

requested full and detailed particulars in respect of the conspiracy in which it is alleged

26. Two offences of conspiracy are alleged against the respondent, a conspiracy to assist

unlawful immigration contrary to s. 1(1) of the Criminal Law Act 1977 and the offence of

conspiracy to commit a human trafficking offence under s. 2 of the Modern Slavery Act

2015 (the “Act of 2015”), contrary to s. 1(1) of the Criminal Law Act 1977.

27. For the purposes of each of these offences, under s. 1(1) of the Criminal Law Act 1977 (in

the United Kingdom) if a person agrees with any other person to pursue a course of

conduct which, if carried out in accordance with their intentions, will either involve the

commission of an offence or offences by any one or more of the parties involved, or would

do so but for the existence of facts which render the commission of the offence or

offences impossible, he is guilty of conspiracy to commit the offences or offences in

28. In addition to the information provided above in relation to each of the conspiracies in

which the respondent is alleged to have been involved, further information is provided in

relation to the incidents of 10th/11th October, 2019, and 17th/18th October, 2019. In

relation to the incident of 10th/11th October, 2019, it is stated that the respondent

dropped a trailer off at Zeebrugge Port. That trailer was picked up by Mr. Kennedy at

Purfleet Port. He drove to Orsett Golf Course where he dropped off 15-20 people who

were collected by waiting cars. Mr. Kennedy admitted being the driver of the vehicle that

picked up the trailer but denied any knowledge of involvement in people smuggling.

29. In relation to the incident of 17th/18th October, the respondent has been identified as the

person who collected a cargo of biscuits from a biscuit factory using tractor unit B221

3BP, which was carrying trailer GTR1 28D. He was later identified as the driver who

dropped that trailer at Zeebrugge Port where it is recorded as having a cargo of one tonne

of biscuits. However, it is believed that people were also smuggled in the trailer

containing the biscuit load. The trailer was collected at Purfleet Port by Mr. Kennedy and

again travelled to Orsett Golf Course, where it was met by three vehicles.

30. The cargo of biscuits was delivered to the intended customer, who refused to accept

delivery on the grounds that the cargo had been damaged. Details of the activities of Mr.

Kennedy and Mr. Hughes in this operation are provided. Mr. Kennedy is stated to have

acknowledged his role in collecting the trailers, and also acknowledged the interference

with the cargo. It is stated that he has said, presumably in a statement, that somebody

must have been in the trailer in view of the damage to the cargo.

31. It is claimed that the available evidence for all of the operations of 10th/11th October,

17th/18th October and 22nd/23rd October, 2019, indicate that the illegal migrants were

not free to walk away on their arrival into the UK; that they were collected by cars on

their arrival, suggesting an intention to exploit those persons, contrary to s. 2(1) of the

32. The issuing judicial authority was also asked to clarify whether or not any of the offences

are alleged to have been committed outside the territory of the United Kingdom. In

response to this, it is stated that both conspiracies were made inside the UK, it being the

prosecution’s case that the agreement to commit the offences in each case was made in

the UK. In relation to the manslaughter offences, it is stated that there is credible

evidence that the deceased died in UK territorial waters. However, in the event that any

of the victims died abroad, it is stated that jurisdiction is established to prosecute the

respondent pursuant to s. 9 of the Offences Against the Persons Act 1861.

33. The issuing judicial authority was invited to comment on an assertion of the respondent

that he is an Irish citizen travelling, at the time of the alleged offences, on an Irish

passport. At the hearing of the application, it was accepted that the latter was an error

i.e. that the respondent was in fact travelling on a British passport. The CPS confirmed

that the respondent is a British citizen and is the holder of a British passport. However,

the respondent has also deposed that he is an Irish citizen and holds an Irish passport.

The error in his affidavit of 27th November, 2019, was to the effect that he was travelling

on an Irish passport at the time of his arrest, whereas he accepts that he was travelling

34. The amended points of objection filed on behalf of the respondent run to almost six

35. The additional information provided by the CPS by letter of 4th December, 2019, is

inadmissible because it is not information within the meaning of s. 20 of the Act of 2003,

as it does not emanate from a judicial authority. Further, the information is not

admissible without formal proof as it is not a document within the meaning of s. 11(2A) of

the Act of 2003 and nor is it admissible pursuant to s. 12(8) of the Act of 2003.

36. The additional information purports to expand to an impermissible degree the facts and

matters relied upon by the applicant, as well as his reliance on Article 2.2 of the

Framework Decision and extraterritorial jurisdiction, all of which go beyond the legitimate

role and purpose of additional information within the meaning of s. 20 of the Act of 2003

or an additional document within the meaning of s. 11(2A) of the Act of 2003.This

objection and the preceding objection were referred to by counsel for the respondent as

being a “preliminary issue”, and I will adopt that description of them hereafter.

37. The surrender of the respondent is prohibited by s. 44 of the Act of the 2003 because the

allegations against the respondent indicate that the actions which he is alleged to have

carried out, were carried out by him outside the territory of the United Kingdom, and no

information has been provided to demonstrate how those actions would, if committed

outside of the territory of the State, constitute criminal offences within the State.

38. There are set out six different reasons as to why the surrender of the respondent is

prohibited by s. 44 in relation to the 39 offences of manslaughter, as follows:

1. The EAW does not state where the deceased persons died. Further, any acts of the

respondent which are alleged to amount to the offence of manslaughter are alleged

2. The respondent is a British citizen and an Irish citizen, and has not been at any

time ordinarily resident in the State within the period of 12 months preceding the

3. No information is provided in the EAW as to the basis on which the United Kingdom

4. The English statutory provisions relied upon in the additional information are out of

date and/or inapplicable and do not provide a basis for extraterritorial jurisdiction.

5. The English statutory provisions relied upon in the additional information received

6. The additional information contradicts the statement in the EAW that extraterritorial

39. It is separately pleaded that the surrender of the respondent is prohibited by s. 44 of the

Act of 2003 in relation to the alleged offences of conspiracy to commit human trafficking

and conspiracy to assist unlawful immigration. The first three reasons given are in each

case the same as the first three reasons addressing the same issue as regards the

offences of manslaughter. In relation to the offence of conspiracy to commit human

1. There is no offence in this State corresponding to the offence contrary to s. 2 of the

2. The acts of the respondent referred to in the additional information do not

demonstrate the commission of any offence contrary to the Act of 2015;

3. In the circumstances the offence does not constitute an offence under the law of

the State, having been committed in a place other than the State.

40. The EAW does not comply with s. 11(1A)(f) of the Act of 2003 because the description of

the circumstances in which the offences in respect of which surrender is sought is void for

uncertainty and inadequate particulars of the actions of the respondent in relation to the

alleged offences have been provided. Moreover, there is insufficient information setting

out the degree of involvement of the respondent in respect of the offences, and the EAW

fails to identify the places where the offences occurred and therefore fails to demonstrate

the jurisdiction of this Court to order surrender, having regard to s. 44 of the Act of 2003.

41. The acts of the respondent as set out on the face of the EAW do not constitute the offence

of manslaughter or any other offence contrary to Irish law. As a consequence, surrender

in respect of the 39 offences of manslaughter is prohibited by s. 38(1) of the Act of 2003.

Similarly, the acts of the respondent as set out in the EAW do not constitute an offence

under Irish law which would correspond to an offence contrary to s. 25 of the Immigration

42. The applicant is not entitled to rely on s. 38(1)(B) of the Act of 2003 and/or the

provisions of Article 2(2) of the Framework Decision to disengage the requirement to

prove correspondence of the offences described in the EAW, with offences in this

jurisdiction. Seven separate reasons are provided in support of this plea:

1. The facts of the offences are not set out with sufficient particularity.

2. It is unclear which of the offences, if any, are “ticked box” offences.

3. The offences of conspiracy to commit the offence of human trafficking, as an

inchoate offence is not an offence within Article 2.2 of the Framework Decision.

4. The information received from the CPS contains no description of acts by the

respondent which would comprise the offence of conspiracy to commit the offence

of human trafficking under the law of the United Kingdom, and therefore the ticking

of the box in respect of the offence, for the purposes of Article 2.2 of the

5. The purported indication on the part of the issuing judicial authority/CPS that

manslaughter falls within the ticked box relating to “murder, grievous bodily injury”

6. The purported reliance on Article 2.2 in relation to the offence of conspiracy to

assist illegal immigration contrary to s. 25 of the Immigration Act 1971 is also a

7. Accordingly, there is confusion on the face of the warrant (and the additional

information) in relation to this issue, such that it is unlawful for this Court to order

the surrender of the respondent in relation to all or any of the offences described in

43. The offence provided for in s. 2 of the Act of 2015, does not correspond to any offence

under Irish law, and nor do any of the acts of the respondent as described in the EAW,

which might amount to an offence under that provision, amount to an offence under Irish

44. Similarly, none of the actions of the respondent as described in the EAW as being

contrary to s. 25 of the Immigration Act 1971, correspond to any offence under Irish law.

45. The surrender of the respondent is prohibited because the EAW does not identify the

name of the representative District Judge of the Magistrates’ Court in para. (i) of the

46. Surrender of the respondent is prohibited by s. 37 of the Act of 2003 because it would

breach his constitutional right to fair procedures and to a fair trial in circumstances where

the facts comprising the offences are not set out with sufficient detail or particularity so

that the protection for speciality purposes in s. 22 of the Act is provided.

47. The surrender of the respondent is prohibited by s. 21 of the Act of 2003, because the

additional information received from the CPS discloses that the prosecutor has not yet

determined the cause or place of death or the basis on which it might be alleged that the

respondent has committed manslaughter. Accordingly, there has been no decision to

charge and try the respondent for these offences, and the presumption set forth in s. 21A

48. I turn now to address the arguments raised on behalf of the parties in relation to each of

49. By way of preliminary issue, the respondent claims that the additional information

supplied by the CPS by letter on 4th December, 2019, and accompanying documentation

is not admissible having been provided by the CPS, and not by the issuing judicial

authority. Moreover, the extent of the information provided by way of the additional

information is so voluminous as to effectively amount to a rewriting of the EAW as to be

impermissible, even if the information was provided by the issuing judicial authority. In

support of these arguments, the respondent relies upon the decisions of the Supreme

Court in the cases of Minister for Justice, Equality & Law Reform v. Sliczynski [2008] IESC 73

50. In Sliczynski one of the issues which the Supreme Court was required to consider was the

admissibility of documents which had been received by the Central Authority here from

the Polish court, which documents had been signed in each case by a District Court Judge.

The High Court in its decision had ruled the documents admissible and had relied upon

the same in its decision. In his appeal, the respondent contended that the High Court

Judge erred in law because the documentation concerned offended the rule on hearsay in

the absence of direct proof as to its contents. At p. 6 of his decision Fennelly J., having

“It is clear from the foregoing provisions that the Framework Decision intends that

the executing Judicial Authority may both seek and receive further information

related to a warrant from the issuing Judicial Authority and take into account that

information for the purpose of deciding whether an order for surrender should be

made on foot of the warrant. It is important to note that such information

emanates from a Judicial Authority, one of the characteristics of which is its

independence in the exercise of its functions. Given that the simplified system of

surrender of which the Framework Decision speaks is based, inter alia, on mutual

respect between Judicial Authorities it is quite logical that the Decision would make

a provision for one Judicial Authority, the executing one, to rely on information

provided to it by the other Judicial Authority, the issuing one. In all events that is

“If further information is transmitted by the requesting Judicial Authority either on

its own initiative or following a request it is the function of the Central Authority to

transmit it to the Executing Judicial Authority, in this country, the High Court.

Section 20 must be interpreted in the light of the objectives of the Framework

Decision and its provisions. In my view it specifically gives effect to Article 15(2)

and (3) of the Directive. In so providing I am satisfied that the Oireachtas intended,

consistent with the obligations of the State pursuant to the Framework Decision,

that the High Court would have available to it the information provided by the

issuing Judicial Authority and would have full regard to that information, in addition

to information provided in the European Arrest Warrant itself, for the purpose of

deciding whether a person should be surrendered on foot of a European Arrest

Warrant. Moreover to interpret the provisions of the Act otherwise would render

them meaningless since if direct evidence had to be given of the information

concerned every Judge or member of the issuing Judicial Authority providing

information would either have to give evidence personally or swear an Affidavit of

matters within their own knowledge. If that were the case the provisions referred to

would serve no purpose. Clearly in my view they were intended to ensure that the

High Court would have, where required, information from the Judicial Authority

concerned in addition to that already contained in the arrest warrant itself.

Before the High Court can receive and take into account such information it must

be established that the information communicated emanates from the Judicial

Authority of the requesting State. In this case that has been established by the

express averments in the Affidavits lodged on behalf of the applicant in the High

Court. In any event the source of the information has not been put in issue.”

52. This latter point is of some significance and in sharp distinction to this case, where the

source of the information is the CPS. Accordingly, the respondent argues, this

53. The respondent also places heavy reliance on the decision of the Supreme Court in the

case of Rimsa v. Govenor of Cloverhill Prison and Minister for Justice, Equality & Law

Reform [2010] IESC 47. In that case, the applicant sought an order for his release from

custody pursuant to Article 40.4.2 of the Constitution in circumstances where he

remained detained following the expiration of the period prescribed for surrender by s.

16(5) of the Act of 2003. The date for his surrender had been extended pursuant to an

agreement made between the Central Authority in this State, and the issuing state, which

in that case was the Central Authority of the Republic of Latvia. The case revolved

around the interpretation of s. 16(5)(B) of the Act of 2003 (in its form at that time – it

was amended as a result of the decision in Rimsa) which provided:

“(5) Subject to subsection (6) and section 18, a person to whom an order for the time

being in force under this section applies shall be surrendered to the issuing state

(a) the order takes effect in accordance with subsection (3)…or

(b) such date (being a date that falls after the expiration of that period) as may be

agreed by the Central Authority in the State and the issuing state.”

54. The central argument as regards the interpretation of the latter provision revolved around

“3. If the surrender of the requested person within the period laid down in paragraph 2

is prevented by circumstances beyond the control of any of the Member States, the

executing and issuing judicial authorities shall immediately contact each other and

agree on a new surrender date. In that event the surrender shall take place within

55. It was argued on behalf of the applicant in that case that s. 16(5)(B) of the Act of 2003

had to be interpreted in the light of Article 23(3) of the Framework Decision, which

required any extension of the period within which a person may be surrendered to be

agreed as between judicial authorities, and not Central Authorities. The State (the

respondent in that case) acknowledged that the Act of 2003 may be interpreted in the

light of the Framework Decision but argued that it cannot be given a meaning that is

contra legem. Since that section of the Act of 2003 expressly permitted the Central

Authority in this State to enter into an agreement with the issuing state, then it was

entitled to do so even if Article 23(3) provides such an agreement must be entered into

56. The Supreme Court held that there was an ambiguity in s. 16(5)(B) of the Act of 2003

insofar as it did not provide that such an agreement could be entered in to with any

particular person or body in the issuing state. As such, that ambiguity had to be resolved

by reference to the Framework Decision, which requires such agreements to be entered

into as between judicial authorities. On the basis of this authority, it is submitted on

behalf of the respondent in this case that the reference in s. 20(1) of the Act of 2003 to

the “issuing state” should be interpreted in light of the Framework Decision, especially in

relation to fundamental matters such as the content of that European Arrest Warrant as

prescribed by Article 8 of the Framework Decision. Information of this kind, it is

57. To understand this point fully, it is necessary to set out s. 20 of the Act of 2003. It

“In proceedings to which this Act applies the High Court shall, if of the opinion that

the documentation or information provided to it is not sufficient to enable it to

perform its functions under this Act, require the issuing judicial authority or the

issuing state, as may be appropriate, to provide it with such additional

documentation or information as it may specify, within such period as it may

Accordingly, having regard to the decision of the Supreme Court in Rimsa, the respondent

submits that the words “issuing state” as appearing in s. 20 of the Act of 2003, should be

58. In response to this argument, the applicant relies upon the decision of this Court

(Donnelly J.) in the case of Minister for Justice & Equality v. AW [2019] IEHC 251. In that

case, precisely the same issue as that arising in this case was dealt with by Donnelly J.

i.e. could a Court accept information provided by the CPS pursuant to a request made by

the Court under s. 20 of the Act of 2003? Donnelly J. held that it was open to the Court

to accept such information. She addresses the issue comprehensively in her decision at

paras. 67 – 83. She noted that s. 20 of the Act of 2003 provides express authority for

this Court to seek information from either the issuing judicial authority or the issuing

state. If the Court was confined to obtaining such information from the issuing judicial

authority only, the reference to the issuing state would be otiose.

59. As regards the meaning of “the issuing state” Donnelly J. referred to Article 15 of the

Framework Decision which deals with the provision of additional information. Article

15(2) specifically empowers an executing judicial authority to request supplementary

information, but does not require that request to be addressed to the issuing judicial

authority, or that the issuing judicial authority should provide the response. In contrast,

Donnelly J. noted, Article 15(3) provides for the voluntary furnishing of additional

information by the issuing judicial authority to the executing judicial authority.

60. Donnelly J. relied heavily upon the decision of the Court of Justice of the European Union

(“CJEU”) in the case of ML (Generalstaatsanwaltschaft Bremen) [2018] C-220/18 PPU, in

which case the CJEU ruled on an assurance (as regards the prison conditions in which the

person whose surrender was sought in that case would, if surrendered, be detained) that

was provided not by the issuing judicial authority, but by the Ministry for Justice of

Hungary. The CJEU held that the executing judicial authority was not precluded from

accepting such an assurance, but that it must evaluate the same by carrying out an

61. In AW, the Court carried out such an assessment and noted that the CPS was an

emanation of the State of the United Kingdom and there was no reason to doubt either

the bona fides of the CPS or the authenticity of the information it provided in response to

the request. Donnelly J. referred to the decision of the Supreme Court (Fennelly J.) in

Minister for Justice, Equality & Law Reform v. Stapleton [2007] IESC 30 wherein he

“The principle of mutual recognition applies to the judicial decision of the judicial

authority of the issuing Member State in issuing the Arrest Warrant. The principle of

mutual confidence is broader. It encompasses the system of trial in the issuing

62. Referring to the principle of judicial supervision which lies at the core of the Framework

“The principle of judicial supervision is one which in accordance with recital 8 is one

which is primarily to be carried out by the executing judicial authority. The process

is commenced by an EAW issued by a competent judicial authority in the issuing

state. Without such a judicial decision, there is no request for surrender within the

meaning of the Framework Decision or the Act of 2003. However, in the context of

taking a decision on the execution of that judicial decision in this member state, the

High Court as executing judicial authority, must take into account all of the

information provided to it by the issuing state. The fact that information is not

provided by the issuing judicial authority, is a factor that the executing judicial

authority must take into account when making a decision to surrender in reliance

63. Donnelly J. concluded on this point in her judgment at para. 83 in the following terms:

“This Court must apply mutual trust and confidence to the information that has

been received by (sic) the public prosecution of another Member State. In the

absence of any real or substantive objection to the bona fides of that response, it

may provide the basis for the consideration of whether clarity in respect of the

nature and number of the offences has been obtained and whether there is in fact

64. It was acknowledged on behalf of the respondent that in general terms this Court is

bound by decisions made by another judge of this Court. However, it is submitted that

the decision of Donnelly J. in AW does not confer a “carte blanche” on the authorities of

the issuing state. While it is accepted that certain things may be supplemented whether

by way of a request made pursuant s. 20 of the Act of 2003 or pursuant to s. 11(2)(A) of

the Act of 2003, these sections must be read harmoniously with the Framework Decision

and it is not open to the authorities of the issuing state to put all of the information in

documentation that is separate to the EAW, and nor is AW authority for such a

proposition. It is submitted that when Donnelly J. gave judgment in AW, she did so at a

time when s. 20 included s. 20(2) which conferred power on the Central Authority to

make requests for additional information, but that power has since been removed by way

of amendment to s. 20. It is submitted that Donnelly J. relied quite heavily on s. 20 in

the form that it was when she made her decision, the implication being that she might

have made a different decision if she was dealing with the amended s. 20, such as in this

65. It was further submitted that this case may be distinguished from AW in that in this case

it is arguable that the warrant as originally issued did not comply with s. 11 of the Act of

2003, and that compliance with that section in this case is dependent, to an excessive

extent, upon information delivered some five or six weeks after the arrest of the

respondent which was delivered not by the issuing judicial authority, but by the CPS.

66. It was also submitted on behalf of the respondent that even if this Court rejects the

argument on this preliminary point, a separate issue arises out of AW and that is that the

decision in that case clearly indicates that it is not open to the CPS to apply to amend the

EAW to correct an error. In that case, there was an error in the EAW (according to the

CPS) insofar as it did not indicate an intention to rely on Article 2(2) of the Framework

Decision in respect of certain offences. However, the CPS did not ask the Court to amend

67. In this case, just one box has been ticked for the purposes of Article 2(2) of the

Framework Decision i.e. that relating to trafficking human beings. Accordingly, it is not

now open to the CPS to seek to invoke Article 2(2) in relation to any of the other

68. While the decision of the Supreme Court in Sliczynski would suggest that additional

information provided pursuant to s. 20 of the Act of 2003 must emanate from the issuing

judicial authority, the statement to that effect in Sliczynski was made in the context of a

different factual matrix and, more importantly, where that Court was not asked to

address the question now under consideration. In contrast, the decision of Donnelly J. in

AW not only addressed this same question, but did so in the context of the same Central

Authority i.e. the CPS. Moreover, the decision of Donnelly J. placed some significant

reliance on the decision of the CJEU in ML, a decision which was handed down in 2018, 10

years after the decision of the Supreme Court in Sliczynski. I agree with and adopt the

69. In accordance with ML, and as Donnelly J. did in AW, in circumstances where additional

information has not been provided by the issuing judicial authority, it is necessary to

consider that information by reference to all of the information placed before the Court by

the competent authorities, including the issuing judicial authority, of the requesting state,

in this case the United Kingdom. In the context of this application, the starting point of

that analysis must be that in providing the additional information, the senior prosecutor of

the CPS has twice stated in her letter enclosing the additional information (which letter

also addresses specific queries) that she is writing “on behalf of the relevant judicial

authority”. While this is stated in response to specific information furnished, and not in

relation to the entire letter, it is clear that that information at least is being provided on

behalf of the issuing judicial authority. However, even though the letter does not say so

expressly, I think it is a reasonable inference to draw that the entire contents of the letter

70. Secondly, the additional information has been provided by the CPS. As was made clear in

the decision of Donnelly J. in AW, and as indeed counsel for the applicant in this case

submitted to the Court, this is the practice of the United Kingdom. Once the EAW has

been issued by an issuing judicial authority, that authority is not usually involved in

providing information in response to queries received from the executing state. Neither

the integrity nor competence of the CPS is impugned in any way. Accordingly, there is no

reason to doubt the authenticity of the information or the bona fides of the CPS. The

Court is obliged to receive and treat the information provided in accordance with the

principle of mutual confidence referred to by Fennelly J. in Stapleton, which in turn

71. While it is true that the information provided in the EAW as regards the circumstances of

the offences alleged against the respondent was somewhat scant, nonetheless the EAW

itself was issued by a District Judge and was, therefore, subject to the judicial scrutiny

and supervision envisaged by the Framework Decision. The additional information, while

providing considerably more detail than the EAW, is in no way inconsistent with or

contradictory of the information provided in the EAW. Moreover, there is nothing in the

additional information provided that would cause this Court to have any concern that the

issuing judicial authority might not have issued the warrant if this information was

contained in it in the first place; on the contrary, the additional information is supportive

of the information set forth in the EAW. Although the additional information is very

voluminous, in contrast to that given in the EAW, it does not in any way alter the

character of the allegations being made against the respondent, the charges that it is

intended to bring against him (save that, as regards the manslaughter charges it is stated

these may be brought on an alternative basis, details of which are provided) or the

penalties that he will face if convicted of the offences set forth in the EAW. All of this

being the case, it is my view that the additional information should be admitted for the

purpose of the Court’s consideration of this application. The preliminary objection must

“44. A person shall not be surrendered under this act if the offence specified in the

European arrest warrant issued in respect of him or her was committed or is

alleged to have been committed in a place other than the issuing state and the act

or omission of which the offence consists does not, by virtue of having been

committed in a place other than the State, constitute an offence under the law of

73. The respondent contends that the alleged offences were not committed in the issuing

state i.e. the United Kingdom. The respondent further contends that any acts on the part

of the respondent which are alleged to amount to the offence of manslaughter are alleged

to have been done in Belgium. The respondent relies on the statement at paragraph 3.22

of the additional information in which it is stated that the exact time and place of death is

not known, and submits that, while at a later stage in the additional information, from

paragraphs 3.24 onwards the CPS surmises that at least some of the victims were alive

when the MV Clementine entered UK territorial waters, it is clear that the CPS does not

assert that all of the victims died inside UK territorial waters. Accordingly, it is submitted,

this engages s. 44 of the Act of 2003 in relation to the manslaughter charges.

74. The question that then arises is whether or not offences of manslaughter that may have

occurred outside of the jurisdiction of the United Kingdom, the issuing state, constitute

offences under the law of the State. If so, a further question that arises, by reason of the

decision of the Supreme Court in the Minister for Justice, Equality & Law Reform v. Bailey

[2012] 4 IR 1, is whether or not the authorities in the United Kingdom would be entitled

to prosecute for an offence of manslaughter if the situation were reversed i.e. if this State

was the requesting state, the United Kingdom the requested state and the offences were

alleged to have been committed outside of the jurisdiction of this State.

75. Both of these questions are answered through the provisions of s. 9 of the Offences

Against the Person Act, 1861. In the United Kingdom, this section provides:

“9. Where any murder or manslaughter shall be committed on land out of the United

Kingdom, whether within the Queen’s dominions or without and whether the person

killed were the subject of Her Majesty or not, every offence committed by any

subject of Her Majesty in respect of any such case, whether the same shall amount

to the offence of murder or of manslaughter, or of being an accessory to murder or

manslaughter, may be dealt with, inquired of, tried, determined, and punished in

any county or place in England or Ireland in which such person shall be

apprehended or be in custody, in the same manner in all respects as if such offence

had been actually committed in that county or place: provided, that nothing herein

contained shall prevent any person from being tried in any place out of England or

Ireland for any murder or manslaughter committed out of England or Ireland, in the

same manner as such person might have been tried before the passing of this Act.”

76. The references to Ireland remain in this section of the Act as it applies in the United

Kingdom. However, this section has been amended in this country and in its present form

“9. Where any murder or manslaughter shall be committed on land out of [area of

application of laws of the State], and whether the person killed were [an Irish

citizen] or not, every offence committed by [any citizen of Ireland] in respect of any

such case, whether the same shall amount to the offence of murder or

manslaughter, may be dealt with, enquired of, tried, determined, and punished in

any county or place the [area of application of the laws of the State] in which such

person shall be apprehended or be in custody, in the same manner in all respects

as if such offence had been actually committed in that county or place; provided,

that nothing herein contained shall prevent any person from being tried in any

place out of [the area of application of the laws of the State] for any murder or

manslaughter committed out of [the area of application of the laws of the State], in

the same manner as such person might have been tried before the passing of this

77. The respondent acknowledges that he is a citizen of both Ireland and of the United

Kingdom. The parties are in agreement as to the legal effect of s. 9 of the Offences

Against the Person Act, 1861, in its form in each jurisdiction. That is the parties agree

that where an Irish citizen commits manslaughter outside the jurisdiction of the State,

that act constitutes an offence under the laws of the State, and may be prosecuted in the

State, regardless as to where the offence occurred and as to the nationality of the victim.

The provision has precisely the same effect in the United Kingdom. This means that there

is reciprocity as required by the Supreme Court in Bailey. It is clear therefore that even if

some of the victims died outside of the territorial waters of the United Kingdom, their

deaths constitute an offence under the laws of the State (assuming of course that the

offences are otherwise proven). The objection advanced under s. 44 of the Act of 2003

insofar as it relates to the manslaughter charges must therefore be rejected.

S.44 Objection - Conspiracy to commit a human trafficking offence

78. However, this objection is also raised in relation to the offence of conspiracy to commit a

human trafficking offence, though not in relation to the offence of conspiracy to assist

unlawful immigration. As regards the latter, it is accepted that the corresponding offence

in this jurisdiction is s. 2 of the Illegal Immigrants (Trafficking) Act 2000 and that that

offence may be prosecuted by the authorities in this state on a extraterritorial basis, and

that the equivalent provision in United Kingdom law similarly confers jurisdiction to

prosecute on an extraterritorial basis. However, in relation to the offence of conspiracy to

commit a human trafficking offence, it is submitted firstly that there are no acts on the

part of the respondent set out in the EAW which could amount to such an offence and

therefore the United Kingdom has no jurisdiction to try the respondent for the same. For

the same reason, the respondent could not be prosecuted in this state for such an offence

in circumstances where the actions of the respondent constituting the offence have not

been set out. Accordingly, s. 44 of the Act of 2003 prohibits surrender in respect of this

79. Secondly, it is submitted that the actions of the respondent as described are said to have

taken place in Belgium. While it is accepted that the Act of 2015 in the United Kingdom

and the Criminal Law (Human Trafficking) Act 2008 in this jurisdiction permit each state

to prosecute for offences under these Acts regardless of where they are committed, it is

submitted that these acts have no application for the reasons given in the preceding

paragraph, and so therefore the extraterritorial jurisdiction conferred by these Acts are of

80. In response to all of this the applicant argues that the charges of conspiracy are in no

way affected by s. 44 of the Act of 2003 because it is clear from the additional

information that it is claimed that the conspiracy took place within the United Kingdom,

and it is on that basis that jurisdiction is asserted. The applicant relies, inter alia, upon

However, as set out, above, it is the prosecution’s case that the agreement

3.81 The prosecution’s case is that HARRISON has been involved in arranging or

facilitating the travel of the 39 deceased persons. There were meetings and

telephone conversations which took place between co-conspirators in the UK.

3.82 CCTV evidence, ANPR data and cell-site analysis also place HARRISON and his co-

conspirators in the UK at relevant times and on relevant dates. However,

HARRISON is a UK national so the relevant section that applies for jurisdiction in his

case is section 2(6) of the 2015 Act. He commits the offence regardless of where

the arranging or facilitating takes place or where the travel takes place.

3.84 There is ample evidence to show in this case that part of the arranging and

facilitation took place in the UK and the travel consisted in the arrival in or entry

4.7 Conspiracy to commit human trafficking offence - The essence of the conspiracy is

the agreement. The Prosecution submits the agreement was made in the United

Kingdom. To prove the existence of the agreement, the Prosecution seeks to rely

on the acts done in furtherance of the agreement. There is evidence of telephone

calls and meetings between HARRISON and the other co-conspirators which took

Conclusion on s. 44 Objection as regards conspiracy to commit human trafficking

81. As stated at para. 4.3 of the additional information, the essence of the conspiracy is the

agreement. It is stated repeatedly in the additional information that there is evidence of

activities in which the respondent was involved in which he and his co-conspirators, who

are named, arranged for the travel and entry into the UK of the deceased migrants. While

it is true to say that there is very little information in relation to activities that would

constitute human trafficking, the issuing judicial authority has ticked the box associated

with this offence, and it follows therefore that in considering the s. 44 objection to this

offence, I am not required to consider the quality of the evidence for the offence but only

where it occurred. It is clearly asserted that the agreement constituting the conspiracy

was made in the United Kingdom and that being the case surrender in respect of this

82. It is claimed that there has been a failure on the part of the issuing judicial authority to

comply with s. 11(1A) of the Act of 2003 and furthermore that the additional information

received from the CPS is not a document within the meaning of s. 11(2A) of the Act of

2003 (and accordingly is not admissible pursuant to that section), and nor is it admissible

83. There have been numerous decisions over the years which have addressed the

importance of the EAW containing the required information, so that the party whose

surrender is requested will have clarity as to, inter alia, the offences for which surrender

is sought, and the penalties that those offences attract. In Minister for Justice, Equality &

Law Reform v. Connolly [2014] 1 IR 720, Hardiman J. stated, at para. 31:

“I consider it to be an imperative duty of a court asked to order the compulsory

delivery of a person for trial outside the State to ensure that it is affirmatively and

unambiguously aware of the nature of the offences for which it is asked to have him

forcibly delivered, and for which he may be tried abroad, and of the number of such

84. While accepting that the issuing judicial authority is not under an obligation to prove the

case against the respondent, it is submitted on behalf of the respondent that issues

relating to s. 38 and s. 44 of the Act of 2003 cannot be resolved because of the deficit of

85. In relation to the manslaughter offences, it is claimed that there is little information as to

the degree of participation of the respondent in relation to these charges. It is claimed on

behalf of the respondent that having put forward one basis for manslaughter in the EAW

i.e. that the respondent intentionally did an unlawful and dangerous act from which death

inadvertently resulted, in the additional information the CPS has stated that it may rely on

gross negligence as an alternative basis to establish manslaughter. It is submitted that it

is not open to the prosecutors to put forward alternative options, and furthermore in

neither case, is there sufficient information set forth in the EAW or the additional

86. It is also submitted that large portions of the information supplied by the CPS relate to

third parties and not the respondent, and that this suggests that the respondent is being

treated as guilty by association with others. It is not stated that the respondent knew

that there were persons in the trailer which it is alleged he deposited at the port in

Zeebrugge. Nor is there any information as to when or where the persons entered the

trailer. Since s. 11(1A)(f) requires that the EAW specify the degree of involvement or

alleged degree of involvement of the respondent, this is wholly inadequate.

87. In substance, it is submitted that the EAW, and the additional information, say very little

more about the conduct of the respondent other than that he delivered the trailer to

Zeebrugge at 13:54 hours on 22nd October, 2019, and that the trailer in question was

loaded on the MV Clementine in Zeebrugge at 14:55 hours. There is then a reference to

phone calls being made by Mr. Ronan Hughes to the respondent on 23rd October, 2019,

after the arrest of Mr. Robinson, and it is also stated that the respondent discarded his

88. It is submitted that such information as has been provided in relation to the conduct of

the respondent does not form a basis for a charge of manslaughter and, in circumstances

where the cause of death (as at the date of the hearing of this application) remains

unknown, there must be a question as to whether or not the EAW is being used in order

to hold the respondent pending consideration of whether and on what basis manslaughter

89. Moreover, as regards the contact between Mr. Hughes and the respondent, it is stated

that the respondent was recruited as a lorry driver by Mr. Hughes, and contact between

employer and employee is to be expected. Since no allegation is made in relation to Mr.

90. Finally, in relation to the charge of manslaughter, it is submitted that it is difficult to avoid

the conclusion that the respondent in being sought for prosecution of the manslaughter

charges on the basis that he was the driver of the truck which deposited the trailer in

Zeebrugge, with nothing more to support that allegation. It is submitted that this is not

sufficient to meet the requirements of s. 11(1A)(f) of the Act of 2003. Similar arguments

are made on behalf of the respondent in the context of arguing that the acts of the

respondent could not constitute the offence of manslaughter in this jurisdiction, and I will

91. It is also submitted that the particulars of the conspiracy charges both in relation to

unlawful immigration and human trafficking are set out in general terms, and are no more

than to the effect that the respondent conspired with others (who are named) between

the specified dates to commit the offences. Reliance is also placed (by the applicant)

upon events that occurred in May 2018, 10th/11th October, 2019, and 17th/18th

October, 2019 (see para. 19 above), but it is submitted that these are entirely separate

incidents and do not assist the Court in relation to the events that occurred on 22nd

92. In response to this, it is submitted on behalf of the applicant that the allegations against

the respondent as set forth both in the EAW and in the additional information are

adequate for the purposes of s. 11(1A)(f) of the Act of 2003. The respondent refers to

several authorities in which this issue was considered, including the cases of Minister for

Justice, Equality & Law Reform v. Desjatnikovs [2009] 1 IR 618, Minister for Justice,

Equality & Law Reform v. Stafford [2009] IESC, Minister for Justice, Equality & Law

Reform v. Jarzebak [2010] IEHC 472, and Minister for Justice, Equality & Law Reform v.

Cahill [2012] IEHC 315. In this latter case, in a passage upon which the applicant relies,

“The…objective… is to enable the respondent to know precisely for what it is that

his surrender is sought. A respondent is entitled to challenge his proposed

surrender and in order to do so needs to have basic information about the offences

to which the warrant relates. Among the issues that might be raised by a

respondent are objections based upon the rule of specialty, the ne bis in idem

principle and extra-territoriality to name but some. In order to evaluate his

position, and determine whether or not he is in a position to put forward an

objection that might legitimately be open to him to raise, he (and also his legal

advisor in the event he is represented) needs to know, in respect of each offence to

which the warrant relates, in what circumstances it is said the offence was

committed, including the time, place, and degree of participation in the offence by

93. It is submitted that it is well established that there is no requirement for the issuing state

to establish a prima facie case in the European Arrest Warrant. Indeed, Counsel for the

respondent accepts that this is so. In the case of Minister for Justice, Equality & Law

Reform v. Phillip Baron [2012] IEHC 180, Edwards J., in addressing the issue, stated:

“It is sufficient if the information both specifically asserts a link and gives a general

outline of the basis for that assertion, or alternatively sets forth sufficient alleged

circumstantial facts that would, if proven, allow a court to infer the necessary link.

It is not necessary, however, to provide every detail of the proposed evidence by

means of which the circumstances in question might be established in Court.”

94. It is necessary to bear in mind that at this juncture that I am dealing only with the

objection that the particulars of the offences given in the EAW do not comply with s.

11(1A)(f) of the Act of 2003. It is agreed that the particulars given need not amount to

even a prima facie case in relation to the offences alleged. The purpose of the section

has been interpreted as meaning that the person whose surrender is sought should know

from the warrant the purpose for which his/her surrender is required. The person

concerned is entitled to sufficient particulars for two reasons, firstly in order to be able to

raise any of the objections permitted by the Act of 2003, and secondly so that if his or her

surrender is ordered, the purpose for the surrender is clear. It is well established in order

95. Firstly, I have already ruled above that the additional information provided by the CPS, on

behalf of the issuing judicial authority, may be admitted for the purposes of the

consideration of this application. Although that information was provided pursuant to a

request made under s. 20 of the Act of 2003, in my opinion it may also be considered

information provided for the purposes of s. 11(2A) of the Act of 2003 which provides:

“(2A) If any information to which subs. (1A) (inserted by s. 72(a) of the Criminal Justice

(Terrorist Offences) Act 2005) refers is not specified in the European Arrest

96. The central objection raised on behalf of the respondent as to non-compliance with s.

11(1) of the Act of 2003 is that particulars of the circumstances in which the offences

were committed are not sufficiently clear, and nor is the degree of alleged involvement of

97. I will first address the objection that the description of the circumstances in which the

offences were committed is deficient. The respondent is to be charged with 41 offences,

made up of 39 offences of manslaughter, and two offences of conspiracy, the first being a

conspiracy to commit a human trafficking offence under s. 2 of the Modern Slavery Act

2015 in the United Kingdom, and the second being a conspiracy to assist unlawful

immigration contrary to s. 25 of the Immigration Act 1971 of the United Kingdom.

98. It is clear from the information provided that each of the 39 manslaughter charges arises

from the same set of circumstances i.e. all of the deceased persons were transported in a

trailer unit the Port of Zeebrugge in Belgium and from there to the Port of Purfleet in the

United Kingdom, and thereafter towards their destination in the United Kingdom. The

ferry crossing alone took nine hours. The refrigeration unit in the trailer was turned off

and there was no cooling of any kind, causing the temperature in the trailer unit to reach

a high of 38.5 degrees during the journey. Although at the time of this hearing the

precise cause of death was uncertain, it is likely that all of the deceased died of hypoxia,

99. The circumstances in which the misfortunate migrants died could hardly be more clear.

The only details of any significance that are missing are the circumstances in which they

came to be on board the trailer unit in the first place. But those details are not necessary

for the purposes of this application. The circumstances in which the victims died are

clearly set out and in sufficient detail for the purposes of this application.

100. As to the degree of involvement of the respondent, it is true that neither the EAW nor the

additional information allege that the respondent was responsible for placing the victims

in the trailer, or that he had any knowledge of their presence therein. This issue requires

further exploration in the context of another objection raised on behalf of the respondent

i.e. that the acts alleged against the respondent do not correspond to the offence of

manslaughter in this jurisdiction, which I address below. But for the purpose of the

objection grounded upon non-compliance with s. 11(1A)(f) I believe that when the EAW

and the additional information are read as a whole, this Court is entitled to draw an

inference that it is alleged that the respondent, at a minimum, knew that the migrants

were in the trailer at the time that he transported them to Zeebrugge and left there for

onward transportation to Purfleet. Such an inference is entirely logical because it is also

alleged that the respondent was involved in a conspiracy to assist in unlawful

immigration, and a separate conspiracy to commit a human trafficking offence.

101. As to the conspiracy charges, in the context of an allegation, what more could be said?

The respondent and others are alleged to have been involved in a conspiracy to bring

immigrants into the United Kingdom illegally. It is further alleged that these activities

were not confined to assisting illegal immigration, but also involved exploitation of those

brought into the United Kingdom, such as to constitute exploitation of those persons,

contrary to the Act of 2015. Information regarding the involvement of the respondent

and his co-conspirators in such activities on previous occasions is provided. The extent of

the respondent’s involvement in these activities is, at a minimum, alleged to have been

the transportation of the migrants to the Port of Zeebrugge. For the purposes of s.

11(1A)(f) of the Act of 2003, I consider that there is sufficient information regarding the

degree of involvement of the respondent in the alleged offences of manslaughter and

102. As regards the offence of conspiracy to commit a human trafficking offence, very limited

information is provided. Reliance appears to be placed on two matters, the first being the

exploitation of the migrants on the journey itself ( related to the cost and conditions of

the journey) and the second, which is based on observation of previous activities in which

the respondent and his co-conspirators were allegedly involved, is that it is unlikely that

the victims would have been free to do as they pleased had they arrived safely. To the

extent that this constitutes an offence, the degree of involvement of the respondent

appears to be that this was all part of the same conspiracy that involved assisting illegal

immigration into the United Kingdom, in respect of which for this purpose I have already

decided that there is sufficient information in the EAW and the additional information.

Since the two conspiracies are inextricably linked, I believe that there is sufficient

information in the EAW and in the additional information provided in relation to this

offence also. As the authorities make abundantly clear, there does not even have to be

sufficient information in the EAW or the additional information to establish a prima facie

case; applying the test set out by Edwards J. in Minister for Equality & Justice v. Phillip

Baron referred to above, the information provided both specifically asserts a link between

the respondent and the alleged offences, and gives a general outline of the basis for that

assertion, or alternatively sets forth sufficient alleged circumstantial facts that would, if

proven, allow a court to infer the necessary link. As the Court further observed in that

case, it is not necessary that every detail of the proposed evidence by means of which the

circumstances in question might be established in Court should be provided.

Objection to invocation of Article 2(2) of the Framework Decision - Manifest Error

103. In the EAW, the issuing judicial authority ticked the box for just one of the offences

prescribed by Article 2(2) of the Framework Decision, that relating to trafficking in human

beings. In the additional information, the CPS stated that it was intended to invoke Article

2(2) in relation to all offences. However, at the hearing of this application, counsel for the

applicant informed the Court that he was seeking to rely on Article 2(2) in respect of the

trafficking offence only, and accordingly he accepts that it is necessary to demonstrate

correspondence in relation to the manslaughter offences and the offence of conspiracy to

assist unlawful immigration. I address this below, but first it is necessary to address the

argument advanced on behalf of the respondent that the invocation of Article 2(2) in

relation to the conspiracy to commit a human trafficking offence is a “manifest error”.

104. The respondent contends that the invocation of Article 2(2) in respect of the offence of

conspiracy to commit a human trafficking offence is a manifest error on the part of the

issuing judicial authority such that it should not be entitled to rely on Article 2(2), and

should instead be required to demonstrate correspondence between the acts relied upon

in relation to this offence with an offence under the law of the State, as required by s. 38

of the Act of 2003. It is submitted that there is no information at all in the EAW or in the

additional information that would suggest that the respondent engaged in the trafficking

105. Under s. 2(1) of the Act of 2015, in the United Kingdom, a person commits an offence if

he arranges or facilitates the travel of another person with a view to that person been

exploited. It is clear from this section and also s. 2(4) of the same act that under UK law

the offence of trafficking in human beings involves an element of exploitation and control

and not just the simple facilitation of illegal immigration. The absence in the EAW of any

intention to exploit the migrants upon their arrival in the UK demonstrates that there is

no evidence at all such as to indicate the commission of an offence under the Act of 2015.

106. The offence of trafficking of persons under Irish law is provided for in s. 4 of the Criminal

Law (Human Trafficking) Act 2008. The various ingredients of the offence in this section

include coercion, threats, deception, abuse and use of force. There is no indication in the

EAW or in the additional information as to the presence of any of these factors or any of

the other factors set out in that section in the treatment of those who died while being

107. Accordingly, it is submitted, it follows that the applicant should not be entitled to rely on

the invocation of Article 2(2) in relation to this offence, as it is a manifest error. It is

submitted that in the case of Minister for Justice v Devlin [2010] 1 IR 97, Peart J.

acknowledged that the court could disregard the fact that an offence had been ticked and

require proof of correspondence between the alleged acts and the offence in Irish law in

circumstances where there is a manifest error on the face of the warrant.

108. In response to this, it is submitted on behalf of the applicant, firstly, that the statement in

the EAW that “the case against Eamon Harrison relates to the trafficking and subsequent

death of 39 people within an artic trailer unit” in itself is enough to disprove any

109. It is further submitted that the Supreme Court has made it clear in its decision in the case

of the Minister for Justice, Equality and Law Reform v. Ferenca [2008] 4 IR 480 that it is

entirely a matter for the requesting state to invoke Article 2(2). In para. 22 of his

decision, Murray C.J. stated “Article 2 only applies to the specified offences in Article 2.2

and it is for the issuing states to identify any offence in relation to which surrender is

sought, as defined by its own law, as being one of the offences listed in Article 2.2”. In

para. 114 of the same judgement, Macken J. stated: “Article 2.2 of the Framework

Decision gives no right to an executing Member State to go behind the listed offences,

110. The applicant also relies upon the case of Minister for Justice, Equality and Law Reform v.

Ciupe, a decision of Edwards J. in this Court delivered on 13th September, 2013, having

“where a box is ticked and the basis for the issuing state having done so is not

obvious, giving rise to a suggested manifest error, a court might proceed in a

number of ways. In some cases the raising of a query using the procedure under

section 20 of the Act of 2003 and aimed at clarifying the intention of the issuing

judicial authority would be the most appropriate way of proceeding. However, in

other cases the court might consider it appropriate to proceed to make a specific

finding of manifest error and disregard the ticking of the box. In yet other cases the

appropriate thing to do might be to make no specific finding of error but rather for

the court to proceed of its own motion to consider the issue of correspondence

notwithstanding that box is ticked e.g., in a case where it appears that

correspondence will be demonstrable in any event, in which case the respondent’s

objection would be otiose in practical terms, and the raising of a query using the

section 20 procedure could serve only to delay an inevitable outcome.

The point that requires to be stressed here is that the existence of an error would

have to be truly “manifest” and the only reasonable conclusion, before an executing

court would be justified in disregarding the ticking of a box on the grounds of error.

Having regard to the Supreme Court’s clear and unequivocal statement in Ferenca

that it is for the issuing state to decide whether or not its national law defines the

particular conduct which it alleges against the person whose surrender is sought, as

one of the offences listed in Article 2.2, it follows that it will only be in the rarest of

cases that an error would be truly manifest, as opposed to being suspected at the

level of possibility. Accordingly, it seems to me that an executing court should

exhibit considerable reticence about engaging positively with an objection to

reliance by an issuing judicial authority upon Article 2.2 of the framework decision

on the grounds of alleged manifest error, and that it should only do so in

circumstances where it can be totally satisfied from what is contained in the face of

the warrant that there has indeed been an unintended but significant drafting error

involving the inappropriate ticking of a particular box in the Article 2.2 list”

111. Counsel for the applicant also relied upon the later decision of Donnelly J. in the Minister

for Justice, Equality and Law Reform v. Fassih, 2nd February, 2017, in which the Court

reiterated the principles set forth in Ferenca and Ciupe. Counsel further submitted that

this line of authority would apply with equal force to the inchoate offence of conspiracy to

commit a tick box offence, and relies upon the decision of Peart J. in the case of Minister

for Justice, Equality and Law Reform v. O’Sullivan [2011] IEHC 230, in which case Peart J.

ordered the surrender of the respondent in respect of the offences of conspiracy to

commit fraud. Similarly, in the case of Minister for Justice, Equality and Law Reform v.

McGowan, Donnelly J. rejected an argument that she should look behind the invocation of

112. The authorities on this issue are very clear. It is entirely a matter for the requesting state

whether or not to invoke Article 2(2) of the Framework Decision in respect of an offence.

The requested state is not entitled to go behind this invocation save in cases of manifest

error. In Ciupe, Edwards J. suggested that the error must be in the nature of a drafting

error. In Devlin, Peart J. gave an example of another kind of error which is so glaring as

to be manifest, where the box for fraud was ticked, but the surrender of the respondent

was sought for a very different kind of offence, such as murder. Neither of these

examples apply in this case. There is no manifest error. It is not at all difficult to see how

the facts alleged against the respondent could include a human trafficking offence,

including conspiracy to commit such an offence. This Court is not concerned with the

strength of the evidence indicated in the EAW or in the additional information, when

considering whether or not there has been a manifest error. I am satisfied beyond any

doubt that this is not one of those very rare cases in which the Court can or should

disregard or override the choice of the issuing judicial authority to invoke Article 2(2) of

113. The respondent further objects to his surrender on the grounds that the offences

described in the EAW do not correspond to offences under the law of the State, having

regard to the requirement set forth in s. 5 of the Act of 2003 which provides:

“5- For the purposes of this act, an offence specified in a European Arrest Warrant

corresponds to an offence under the law of the State, where the act or omission

that constitutes the offence so specified would, if committed in the State on the

date on which the European Arrest Warrant is issued, constitute an offence under

114. Having found, as I have, that this Court is bound by the ticking of the box that refers to

trafficking in human beings, it is of course not necessary for the applicant to demonstrate

correspondence as regards the offence of conspiracy to commit a human trafficking

offence. The applicant accepts, however, that it is necessary to demonstrate

correspondence in relation to the manslaughter offences and the offence of conspiracy to

115. Dealing with the latter offence first, the applicant argues that the acts of the respondent

as described in both the EAW and the additional information, viewed as a whole, would, if

committed in the State, constitute the offence of conspiracy contrary to s. 71(1) of the

Criminal Justice Act 2006, because the conspiracy relates to the carrying out of an act

that would constitute a serious offence (as defined in s. 70 of that Act), that offence being

an offence contrary to s. 2(1) of the Illegal Immigrants (Trafficking) Act 2000. That

“2(1) A person who organises or knowingly facilitates the entry into the State of a person

whom he or she knows or has reasonable cause to believe to be an illegal

immigrant or a person who intends to seek asylum shall be guilty of an offence and

(a) on summary conviction, to a fine not exceeding £1,500 or to imprisonment

(b) on conviction on indictment, to a fine or to imprisonment for a term not

116. The definition of “serious offence” in s. 70 of the Criminal Justice Act 2006 is an offence

for which a person may be punished by imprisonment for a term of four years or more.

The respondent did not dispute that these are the relevant statutory provisions in the

State for the purposes of establishing correspondence of the offence of conspiracy to

assist unlawful immigration. However, the respondent contends that there is no factual

basis of any kind set forth in the EAW or the additional information which indicates that

the respondent organised entry of illegal immigrants into the United Kingdom or that he

was involved in a conspiracy to do so. No information is provided as to when the victims

entered the trailer or in what circumstances, or that the respondent knew of their

presence in the trailer. Nor is there any information provided as regards meetings or

phone calls in which the respondent was involved whereby he was a party to a plan to

facilitate the entry into the United Kingdom of the deceased migrants. Accordingly, it is

submitted, the applicant has failed to establish correspondence in relation to this offence.

117. The applicant contends that looking at the information as a whole, the following facts are

(1) Firstly, it is stated that the respondent is involved in a conspiracy to traffic illegal

(2) Secondly, it is stated that he and another named individual were recruited to

(3) It is stated that another driver was paid £1,500 per person for these activities, and

(4) It is stated that on 9th May, 2018, the respondent was stopped with a trailer unit

(5) It is stated that on 10th/11th October, 2019, the respondent is believed to have

been the driver of a truck that delivered a trailer of illegal immigrants to the same

(6) It is stated that on 17th/18th October, 2019, the respondent delivered more illegal

immigrants to the same port. Further information is provided as to what happened

(7) It is stated that there is evidence of mobile phone contacts between the co-

conspirators, including the respondent, and a wealth of other circumstantial

(8) It is stated that the respondent was responsible for depositing the trailer in which

the misfortunate deceased migrants were transported, at Zeebrugge Port.

(9) Shortly after one of the co-conspirators was arrested, it is stated there was phone

contact between the respondent and another co-conspirator, and, thereafter, the

(10) Finally, is also stated that the respondent did not contact law enforcement

agencies, despite the fact that he was the person who transported the trailer, when

the deaths of the migrants became known and received widespread publicity.

118. It is submitted on behalf of the applicant that the Court is entitled to have regard to all of

the facts as stated, including those that would amount to circumstantial evidence, and

that the court is entitled to draw inferences from those facts. All of that being the case, if

the acts described in the EAW and the additional information were committed in the

State, those acts would constitute an offence contrary to s. 71(1) of the Criminal Justice

Conclusion on s.38 Objection in relation to offence of conspiracy to assist unlawful

119. The test for establishing correspondence with in offence in this jurisdiction is set out in

the decision of Minister for Justice and Law Reform v. Dolny [2009] IESC 48. In that case,

“In addressing the issue of correspondence, it is necessary to consider the

particulars on the warrant, the acts, to decide if they would constitute an offence in

the State. In considering the issue, it is appropriate to read the warrant as a whole.

In so reading the particulars it is a question of determining whether there is a

corresponding offence. It is a question of determining if the acts alleged were such

that if committed in this jurisdiction they would constitute an offence. It is not a

helpful analogy to consider whether the words would equate with the terms of an

indictment in this jurisdiction. Rather it is a matter of considering the acts described

and deciding whether they would constitute an offence if committed in this

120. In the additional information, there is detailed information provided in respect of the

activities the respondent and other named persons in relation to three previous incidents

involving transportation of illegal migrants. The role of the respondent in these events is

described. Names of the others involved in the events are also provided. It is stated that

there is evidence of communications between the respondents and his co-conspirators.

One of those co-conspirators, Mr. Robinson, was the driver of the lorry that collected the

trailer from Purfleet Port. He has pleaded guilty to the offence of conspiracy to assist

unlawful immigration. Finally, the respondent is said to be the person who drove the

121. In my view, if all of these acts were committed in the State, it would surely be the case

that they would constitute an offence under the law of the State, contrary to s. 71 of the

Criminal Justice Act 2006. I therefore dismiss the respondent’s objection under this

122. Counsel for the applicant submits that the facts alleged against the respondent in the

EAW and the additional information fall well short of the criteria required to establish

either manslaughter by criminal negligence or manslaughter by a criminal and dangerous

act. In order to establish the offence of manslaughter by criminal negligence, it is not

enough to establish ordinary negligence; there is a requirement for negligence in a very

high degree. Counsel referred the Court to the authority of The People (AG) v. Dunleavy

[1948] IR 95. In that case, Davitt J. set out at p. 102, the instructions that should be

included in a charge to a jury in respect of the charge of manslaughter by criminal

(b) That they [the jury] must be satisfied that negligence upon the part of the accused

consequences; that ordinary carelessness while sufficient to justify a verdict for a

plaintiff in an action for damages for personal injuries, or a conviction on

prosecution in the District Court for careless or inconsiderate driving, falls far short

of what is required in a case of manslaughter; and that the higher degree of

negligence which would justify a conviction on prosecution in the District Court for

(d) That before they could convict of manslaughter, which is a felony and a very

serious crime, they must be satisfied that the fatal negligence was of a very high

degree; and was such as to involve, in a high degree, the risk or likelihood of

123. It is submitted that on the facts as alleged, there is no evidence of gross negligence on

the part of the respondent. There are no facts alleged that are sufficient to establish that

he breached any duty of care, because there is no allegation that he was in any way

involved in the entry of the migrants into the trailer, or even that he knew they were

124. As regards manslaughter by a criminal and dangerous act, the respondent relies on the

decision of the Supreme Court in The People (AG) v. Crosbie [1966] IR 490. In that case,

“When a killing resulted from an unlawful act, the old law was that the unlawful

quality of the act was sufficient to constitute the offence of manslaughter. The

correct view, however, is that the act causing death must be unlawful and

dangerous to constitute the offence of manslaughter. The dangerous quality of the

act must, however, be judged by objective standards and it is irrelevant that the

125. It is submitted that none of the information provided gives any indication of what the

respondent did that was objectively dangerous. Moreover, here again it is not alleged

anywhere in the information provided that the respondent put the migrants in the trailer,

that he knew they were in the trailer or that he knew how many people were in the

trailer. The latter, it is submitted, is a highly material consideration in circumstances

where the cause of death, assuming that it was caused by suffocation, may well have

been influenced by the number of people in the trailer. It is submitted that the Court is

being invited to infer too much and the Court should not do so. There are facts that are

essential to establishing correspondence with the offence of manslaughter in this

jurisdiction (whether by criminal negligence or by a criminal and dangerous act) that are

not stated in the EAW, and which could very readily have been stated. It is submitted that

they are not stated because that information is not available. All of that being the case,

correspondence with the offence of manslaughter in this jurisdiction, on the basis of the

126. The applicant does not dispute the criteria for establishing the offence of manslaughter.

The principal difference between the applicant and the respondent in relation to this

aspect of the matter is the extent to which the Court is entitled to draw inferences.

Counsel for the applicant submits that what the Court must do is look at the acts stated in

the information provided in the round and as a whole, and submits that it is manifest

from the additional information that what is being alleged is that the respondent and his

co-conspirators knew that the migrants were in the trailer because he and his co-

conspirators were involved in a conspiracy to facilitate the entry of people, illegally, into

127. The applicant relies, inter alia, on all of the information summarised in para. 117 above.

On the basis of this information, it is submitted that it is clearly being alleged that since

he was a conspirator in the enterprise, the respondent not only knew that all of those

people were in the trailer, but he facilitated their presence there. The act of transporting

people in this manner, in a sealed container for onward transportation in a ferry to the

United Kingdom, in a journey lasting nine hours, is manifestly dangerous. So, therefore, it

is clear that the acts concerned were not just unlawful, but sufficiently dangerous as to

meet the criteria for the offence of manslaughter by a criminal and dangerous act in this

128. Central to the decision of the Court on this issue is whether the Court may draw

inferences from the information provided, and, if so, to what extent. It is well settled that

the Court is obliged to consider the information provided in the EAW and in the additional

information as a whole, and this is not disputed. No authority has been cited to me that

declares that the Court may not draw such inferences as are reasonable from the

information provided. In my opinion, having regard to the duty the Court has to give

effect to the Framework Decision, that it has been held that refusal to surrender should

only arise in exceptional cases, and that this is an administrative and not a substantive

proceeding, the Court is entitled to draw such inferences as are reasonable to draw from

129. While it is true that the information provided does not state that the respondent himself

was responsible for placing the migrants in the trailer or even that he knew they were

there, or, that if he did, how many of them were there, nonetheless I think it is a

reasonable inference to draw that this is what is alleged as against the respondent. This is

apparent, in my view, from the conspiracy charges. It is clearly not being alleged that the

respondent was merely the driver; it is alleged that he was a party to an agreement to

facilitate the commission of a breach of immigration law and, separately, an agreement to

commit a human trafficking offence. Necessarily this means that it is alleged that he was

involved, at least to some degree, in the planning of the enterprise, as well as being a

party to its execution. It follows from this, that, although not stated, the case against the

respondent must include an allegation that, at a minimum, he was aware of the presence

of the migrants in the trailer, if not that he actually led them there himself. Moreover,

additional information indicates that those involved were being paid per migrant, and so it

is highly unlikely that a person involved carrying out these actions would not, in his own

self-interest, be aware of the number of people being transported.

130. So, therefore, for the purposes of the consideration of this issue, I am satisfied that it is

reasonable for the Court to draw the inference that the case being made against the

respondent is that he knew there were migrants in the trailer, and that he knew the

numbers involved. Another inference that I believe it is reasonable to draw is that it is

also alleged that the migrants were locked in a sealed container. In the course of

submissions, counsel for the applicant referred, on a number of occasions, to the trailer

unit being sealed, and no issue was taken with this assertion. In any case, I think this

may reasonably be inferred, because the trailer was a refrigerated unit, and such units

are automatically sealed once the doors are closed, even if the refrigeration is not turned

on. Furthermore, it is reasonable to infer that it is alleged that the migrants were locked

in to the trailer, or for whatever reason had no way of escaping from it, because

otherwise they would surely have done so. Bloody hand prints were observed on the

131. In the context of manslaughter by a criminal and dangerous act, the question that then

arises is whether or not the acts of the respondent i.e. those expressly stated in the EAW

and in the additional information, as well as those facts which I have inferred, are of a

character that is sufficiently objectively dangerous so as to constitute the offence of

manslaughter in this jurisdiction? It seems to me that it is difficult to form any other

conclusion. The acts alleged are clearly unlawful, involving , as they do , assisting

unlawful immigration. The migrants were in a container which it may reasonably be

inferred is alleged to have been locked and sealed. They were in that container, for a

period of unknown duration, before it was deposited in Zeebrugge. The ferry crossing was

to last nine hours, and they would remain in the container for a further unstated period

after the crossing, pending their delivery to the pre-planned destination.

132. On an objective basis, it is difficult to see how locking so many people in such a small

(relative to the numbers involved) sealed space for such a lengthy period could be

regarded as other than highly dangerous. It seems very likely that the migrants died of

suffocation, but the fact is that on a journey such as this, anything could go wrong and

the misfortunate migrants would have no means of escape. The additional information

provided included a statement, at para. 3.20, that there were bloody handprints on the

inside of the lorry door, suggesting that efforts may have been made to prise the doors

open from the inside. All of this being the case, I am satisfied that, while much of the

case to be made against the respondent is based on circumstantial evidence, nonetheless,

if all of the acts alleged , expressly or by inference, occurred in this jurisdiction, the

respondent would be found to have committed an unlawful and dangerous act sufficient to

constitute the offence to manslaughter in this jurisdiction Accordingly, I reject the

objection that correspondence with the offence of manslaughter has not been established.

133. Section 21A of the Act of 2003 requires the High Court to refuse to surrender a person,

who has not been convicted of an offence specified therein, if the Court is satisfied that a

decision has not been made to charge the person with, and try him or her for that offence

134. However, s. 21A(2) provides that where a European Arrest Warrant is issued in respect of

a person who has not been convicted of an offence specified therein, it shall be presumed

that a decision has been made to charge the person and try him or her for that offence in

135. At para. (e) II of the EAW the following is stated by the issuing judicial authority:

“I am satisfied that a Crown Prosecutor in the Crown Prosecution Service, whose

function it is decide whether or not to prosecute an individual for the alleged

commission of criminal offences, has decided to charge the person named herein

and to try him for the offences specified above and for which this warrant is

136. It is submitted on behalf of the respondent that that decision of the CPS must have been

made at the time of the issue of the EAW. In that part of the EAW dealing with the

nature and legal classification of the offences, the offence of manslaughter contrary to

common law is identified. It is then stated that this offence is made out if it is proved

that the accused intentionally did an unlawful and dangerous act from which death

inadvertently resulted. In the additional information it is stated that, at present, the case

(i.) The unlawful act of manslaughter, the unlawful act being the substantive offence(s)

of assisting the unlawful immigration of 39 Vietnamese deceased persons into the

UK and/or arranging or facilitating the travel of the 39 persons into and within the

UK with a view to them being exploited before, during or after the journey; or in

(ii.) Gross negligence manslaughter on or before 24th October, 2019, in that he owed a

duty of care to the 39 deceased persons, and that he breached this duty by

transporting them in a trailer to Zeebrugge Port in Belgium on 22nd October, 2019,

and caused the 39 deceased persons to travel unaccompanied inside the trailer unit

on the MV Clementine on a ferry crossing journey lasting approximately nine hours

from Zeebrugge to Purfleet Port, and the breach caused the deaths of the

137. It is submitted on behalf of the respondent that the CPS still does not know the cause of

death and nor has a decision been made as to the charge to be brought against the

respondent i.e. a manslaughter charge based on an unlawful and dangerous act, or a

138. Without post-mortem results identifying the precise cause of death, it is not possible to

assert a breach of any alleged duty of care on the part of the respondent so as to

establish gross negligence. Furthermore, the prosecutor is not in a position to identify

what the respondent did that was dangerous. It is not claimed that the respondent

placed the migrants in the trailer or that he knew of their presence, or that if he did, that

he was aware of how many people were present or of any consequent danger that might

be caused by so many people being in the trailer for nine or more hours.

139. For all of these reasons, it is submitted that it cannot be the case that a decision has been

taken to put the respondent on trial for manslaughter, since there is so much uncertainty

about the basis on which the charge is going to be alleged. It is further submitted that all

of this is sufficient to displace the presumption contained in s. 21A(2) of the Act of 2003.

140. In response to this, it is argued on behalf of the applicant that, as a matter of general

principle, in the context of the Framework Decision, Member States are bound to accept

the judicial decisions of the judicial authority of the issuing Member State in issuing the

arrest warrant, and must also afford trust and confidence in the information provided by

the issuing judicial authority and the issuing state. Accordingly, unless there is evidence

of mala fides this Court is entitled to rely on the representation of the issuing judicial

authority that the surrender of the respondent is required for the purpose of conducting a

criminal prosecution in respect of the offences described in the EAW including

141. It is submitted that it is well established by the authorities that the creation of the

presumption in s. 21A(2) of the Act of 2003 places a burden on the person objecting to

surrender to rebut that presumption by adducing cogent and concrete evidence that no

decision to charge has been taken. The applicant refers to the decision of Minister for

142. In relation to the argument that it appears the CPS has not yet decided on the basis upon

which to advance the charge of manslaughter, it is submitted that it is not at all

uncommon for a prosecutor to advance a manslaughter charge on alternative bases, and

that does not in any way undermine the decision to charge and try for the offence. The

applicant relies on the decision of Minister for Justice, Equality & Law Reform v. Olsson

[2011] 1 IR 384, wherein O’Donnell J. stated, at paras. 33 and 34:

“[33] When s. 21A speaks of ‘a decision’ it does not describe such decision as final or

irrevocable, nor can it be so interpreted in the light of the Framework Decision. The

fact that a further decision might be made eventually not to proceed, would not

therefore mean that the statute had not been complied with, once the relevant

intention to do so existed at the time the warrant was issued. The Act of 2003 does

not require any particular formality as to the decision; in fact, s. 21 focuses on (and

requires proof of) the absence of one. The issuing state does not have to

demonstrate a decision. A court is only to refuse to surrender a requested person

when it is satisfied that no decision has been made to charge or try that person.

This would be so where there is no intention to try the requested person on the

charges at the time the warrant is issued. In such circumstances, the warrant could

[34] The requirement of the relevant decision, intention or purpose can best be

understood by identifying what is intended to be insufficient for the issuance and

execution of a European arrest warrant. A warrant issued for the purposes of

investigation of an offence alone, in circumstances where that investigation might

or might not result in a prosecution, would be insufficient…”

143. The applicant also relies on the decision of Hunt J. in the case of Minister for Justice &

Equality v. Viplentas [2016] IEHC 46 where, after referring to the decision of the Supreme

Court in Olsson and also the decision of the Supreme Court in Minister for Justice,

Equality & Law Reform v. Michael McArdle [2005] 4 IR 260 he stated:

“The presumption in favour of charge and trial is not displaced by the fact that

procedures in the requesting state contain an element of further investigation, or

require the respondent to be present for the purposes of those procedures.”

144. It is further submitted that the fact that post-mortem results are not currently available is

entirely irrelevant to the question of whether or not there is a decision to try and it is

simply not correct to suggest that a cause of death is not asserted. Moreover, it is

submitted that the Court should also take into account that two of the respondent’s

alleged co-conspirators, Mr. Robinson and Mr. Kennedy have already been charged with

offences arising at these events. Mr. Robinson has already pleaded guilty to conspiracy to

assist unlawful immigration and money laundering, and manslaughter charges AGAINST

145. The first observation to make is that no evidence of any kind has been adduced to rebut

the presumption set forth in s. 21A(2). The Court has been invited to conclude that

notwithstanding an express statement in the EAW that a decision to charge and try the

respondent for the offences in the EAW has been taken, the Court should conclude, from

the fact that the manslaughter charges may be advanced on an alternative basis, and

that post-mortem results were not available at the time of the issue of the EAW, that no

decision could have been taken. These facts are also relied upon to displace the statutory

presumption in favour of the decision to charge and try the respondent.

146. In my opinion, the arguments advanced on behalf of the respondent in this regard fall

very far short of what is required before a Court could either reject the express statement

in the EAW or conclude that the statutory presumption has been rebutted. I have no

doubt at all that, at the date of the issue of the EAW, the CPS had the intention to charge

and try the respondent with the offence of manslaughter. It is open to the CPS to

advance the charge of an alternative basis if it chooses to do so. The fact that final post-

mortem results were not available to the CPS at the time does not mean that the CPS did

not have sufficient information available to it to make the decision to charge and try the

respondent. On the contrary it clearly did as demonstrated by the fact that one of his

alleged co-conspirators, Mr. Robinson, was on 25th November, 2019, facing manslaughter

charges. This is apparent from para. 3.40 of the additional information in which it is

“On 25th November, 2019, Robinson appeared before the Central Criminal Court for

a plea and trial preparatory hearing. He pleaded guilty to conspiracy to assist

unlawful immigration and one count of money laundering. He requested more time

from the Court to consider materials served in respect of the manslaughter charges

and another money laundering count before being arraigned on those counts.”

147. In my opinion, for all of these reasons, the objection to surrender based on s. 21A(2) of

148. Other objections raised on behalf of the respondent as referred to in paras. 45 and 46

above were not argued or pursued at hearing and do not require decision.

149. Having dismissed all of the objections of the respondent to this application, it follows that

this Court will make an order, pursuant to s. 16 for the surrender of the respondent to the

United Kingdom in connection with the charges set forth in the EAW.

Result: Decision to surrender the respondent was made.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Minister for Justice and Equality v Harrison [2020] IEHC 29 (24 January 2020) URL: http://www.bailii.org/ie/cases/IEHC/2020/2020IEHC29.html Cite as: [2020] IEHC 29

High Court of Ireland Decisions