High Court of Ireland Decisions

  THE HIGH COURT

[2025] IEHC 145

BETWEEN                                                                                      Record No 2024 EXT 178

 

MINISTER FOR JUSTICE

APPLICANT

v.

 

RICHARD CURTIN

RESPONDENT

 

JUDGMENT of Mr. Justice Patrick McGrath delivered on the 21 February 2025

 

1.      In this application, the applicant seeks an order for the surrender of the respondent to the United Kingdom on one Trade and Co-Operation Agreement warrant ('TCAW').

 

2.      The Respondent was convicted of one offence of Manslaughter at the Central Criminal Court, London on the 9 March 2018. On that date he was sentenced to 10 years imprisonment. After four years in custody, Mr Curtin was released on licence on the 17 November 2022. Having attended his initial two appointments with the probation services, he failed to make any contact with probation and has remained unlawfully at large. He remains subject to licence in the United Kingdom until the 25 October 2027.

 

3.      The warrant was endorsed by Ms Justice Karen O'Connor on the 21 August 2024. On that date a s. 20 notice was directed by the Court, and this was forwarded to the issuing judicial authority on the 23 August 2024. Additional information was sought as to the terms of the Respondents licence and that this licence has been revoked. A response was received on 23 August 2024 containing the following information:-

A.    A copy of the revocation of the licence under section 254 of the Criminal Justice Act, 2003 (as amended) which confirmed that the Respondent's licence was revoked on the 17 November 2022 as he had failed to attend appointments with his probation officer;

B.     A copy of the licence which outlined the various conditions and confirmed that his licence and sentence expires on the 25 October 2027,

C.     A copy of his recall notification dated the 23 December 2022.

 

4.      The Respondent was arrested on the 18 September 2024 and remanded in custody pending the determination of these proceedings

 

5.      Following submissions from the Respondent as to what he alleged were serious deficiencies in the TCAW, a further s. 20 request issued on the 18 November 2024 seeking the following information:-

 

'1. The box for 'murder, grievous bodily injury' is ticked in Section E.1 of the Warrant. However the Requested person has asserted that the relevant notifications have not been delivered to the Specialised Committee on Law Enforcement and Judicial Cooperation so that the condition of dual criminality can be disapplied under Article 599 of the Trade and Cooperation Agreement.

It is also stated in Part E of the Warrant that:

'It is hereby certified the warrant satisfies the conditions of section 142(6) of the Extradition Act, 2003 in that

-          The offence(s) are listed in the Trade and Cooperation Agreement List set out in Schedule 2 to the Extradition Act, 2003

 

2. Part E of the Warrant also states as follows:

'It is hereby certified the warrant satisfies the conditions of section 142(6) of the Extradition Act, 2003 in that:

-          The offence(s) are extra - territorial offences

There is a concern about this matter where the statement of facts about the offence sets out that it occurred in London

 

3. Section C of the Warrant outlines that a sentence of 10 years imprisonment was imposed with a remaining sentence to be served of 6 years imprisonment. However, Section H of the Warrant contains the following statement:

'(h) the offence(s) on the basis of which this warrant has been issued is (are) punishable by/has (have) led to a custodial life sentence or lifetime detention order:

The issuing State will upon request by the executing state give an assurance that it will:

X review the penalty or measure imposed - on request or at least after 20 years'

 

Arising from these points, the High Court has determined that is should request additional information to clarify these aspects of the Warrant so that the High Court can discharge its functions under the European Arrest Warrant Act, 2003 (as amended)

Accordingly, the High Court has requested additional information as follows:-

1.      Please clarify whether a notification has been provided to the Specialised Committee on Law Enforcement and Judicial Cooperation so that the condition of double criminality can be disapplied under Article 599 of the Trade and Cooperation Agreement. Please clarify whether it was intended to 'tick' the box in Section E.1 of the Warrant

 

Please also clarify or explain the statement Part E of the Warrant that:

'It is hereby certified the warrant satisfies the conditions of section 142(6) of the Extradition Act, 2003 in that

-          The offence(s) are listed in the Trade and Cooperation Agreement List set out in Schedule 2 to the Extradition Act, 2003

 

If the box was 'ticked' in error, please provide and amended Section E of the Warrant in the appropriate form. In addition, if the statement in Section E of the Warrant is in error please correct same in the amended Section E being provided to the High Court.

 

2.      Please clarify and/or explain whether it is being asserted in the Warrant that the offence(s) in question is an 'extra territorial offence' as appears to be suggested in Section E of the Warrant

Again if this statement is in error, please provide an amended form of Section E of the Warrant setting out the correct position

 

3.      Please clarify and/ or confirm that the sentence imposed was one of 10 years imprisonment, with 6 years remaining on the sentence.

 

Further, please clarify whether a life sentence was imposed and if there is a 'review' of the sentence and/or whether the ticked box in Section H of the Warrant is in error. If it is in error please provide a new Section H in the appropriate format'

 

6.      In a reply dated the 22 November 2024, the Crown Prosecution Service being the authority that applied for this TCAW which was signed by DJ Snow, replied indicating:-

 

a.       Section E.1 was ticked in error and an attached amended Section E was provided;

b.      The offence of Manslaughter is an extra territorial offence. It was however erroneously stated that the offence for which surrender is sought is extra territorial as the offence of which he was convicted was wholly committed within England;

c.       The ticking of Box H was in error and an amended Box H was provided. On 9 March 2018, Richard Curtin was sentenced to 10 years imprisonment and a life sentence was not imposed and there is therefore no review concerning the sentence.

 

UNCONTENTIOUS MATTERS

 

7.      I am satisfied that the TCAW was issued by a 'judicial authority' in the United Kingdom within the meaning of s. 10 of the European Arrest Warrant Act, 2023.

 

8.      No issue is taken in relation to identity, and I am satisfied the Respondent is the person named in the Warrant.

 

9.      I am satisfied that none of the matters referred to in sections 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended ("the 2003 Act"), arise for consideration in this application and surrender of the respondent is not precluded for any of the reasons set forth in any of those sections.

 

10.  The minimum gravity requirement under the European Arrest Warrant Act 2003 (as amended) ['the 2003 Act'] is met as the maximum sentence in respect of these of this offence meets the requirements of the Act.

 

GROUNDS OF OBJECTION

11.  The Respondent initially objected to surrender on the following grounds:-

 

(i)                 The IJA has wrongly sought to certify compliance with Article LAW.SURR 79/Article 599(4) of the Trade and Co-Operation Agreement by invoking 'murder, grievous bodily injury' This constitutes such a fundamental error in the TCAW that surrender must be refused. Alternatively, this is a manifest error and surrender must be refused

(ii)              The Respondent awaits proof of correspondence for the purposes of Section 38 of the 2003 Act;

(iii)            There is an impermissible lack of clarity as to the sentence imposed and the sentence remaining to be served and the TCAW fails therefore to comply with the requirements of Section 11 (1A)(g)(iii) of the 2003 Act;

(iv)             Surrender must be refused as contrary to S44 of the 2003 Act as IJA have certified that the 'offence(s) are an extra territorial offence(s);

(v)               The surrender of the respondent would be in breach of s37 of the 2003 Act as, owing to the conditions of detention and the regime of detention and his medical condition, there is a real risk that there would be a breach of Article 2,3 and / or 8 of the European Convention on Human Rights ('the Convention') and / or the Charter of Fundamental Rights of the European Union;

(vi)             His surrender would constitute a disproportionate interference with his rights under Article 8 of the Convention, Articles 40.4.1, 41.1 and 40.3.1 of the Constitution and the Charter and is therefore prohibited under Section 37 of the 2003 Act.

 

12.  The Respondent has filed three sets of submissions in this case as follows:-

 

a.       His initial set of submissions, dated the 30 October 2024;

b.      A Supplemental set of submissions, dated the 14 November 2004, which raise additional objections to those set out above; and

c.       A third set of submissions dated the 18 December 2024, which raise yet further grounds of objection.

 

13.  In the Supplemental Submissions of the 14 November 2024, the Respondent added the following additional grounds of objection:-

 

a.       The Applicant cannot rely on the principle of mutual trust or presumption of compliance by the requesting state with the rights of the Respondent, following on from the decision of the CJEU in Alchaster (Case C-202/24, Alchaster [2024]).

b.      The purported amendment to Section 4A of the 2003 Act by secondary legislation, was not necessitated by European Union law and was therefore ultra vires and / or unconstitutional.

c.       The potential preclusion of the Respondent to re-enter this State, without the permission of the relevant authority in the issuing state, as part of any future conditions of his licence would be a travel ban and an impermissible breach of his right to travel under the Treaty of European Union, the Protocols to the ECHR and other international instruments.

 

14.  In the third and final Submissions, the Respondent additionally objects to surrender on the grounds that:-

 

a.       This court should not consider the response received on the 25 November 2024 as this was received from the CPS and not the issuing judicial authority.

 

15.  The Applicant has filed submissions in reply to those of the Applicant on the 4 November 2024 and the 3 December 2024.

 

16.  I will now deal with each of the issues raised by the Respondent in turn hereafter.

 

Court should not consider Additional Information received from the CPS

 

17.  The Respondent accepts that this argument was previously rejected in the cases of Minister for Justice v Harrison [2020] IECA 159 and Minister for Justice v Bradshaw McDermott J, 8 May 2023. He contends that the same principles identified in those cases do not apply here and that this issue must be assessed by reference to Title VII of the TCA itself as interpreted by the CJEU in Alchaster and the provisions of the European Arrest Warrant Act, 2003.

 

18.  The Respondent says, for the reasons set out in his submissions, that unlike the position which would arise if the Court were considering an EAW from a country which is a party to the Framework Decision, this is simply impermissible here when considering a TCAW received from the UK.

 

19.  Section 20 of the 2003 Act (as amended) provides:-

 

'"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 specify."

 

20.  There is nothing in the wording of Section 20 itself, or any other provision of the 2003 Act, that limits this wording solely to EAWs received from Member States that are parties to the Framework Decision. This provision applies to 'all proceedings' to which the 2003 Act applies which includes proceedings involving EAWs received from EU Member States, Requests from non-Member States who are party to the Framework Decision and TCAWs from the United Kingdom.

 

21.  In Minister for Justice v AW [2019] IEHC 251, a case concerning an EAW, Donnelly J considered and rejected a submission that additional information received from the CPS pursuant to a s. 20 request should not be accepted by the Court. She held that it was open to the Court to accept such information and addressed 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. 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 overall assessment of the information available. 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.  She also referred to the decision of the Supreme Court (Fennelly J.) in wherein he stated:

"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 Member State."

 

22.  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 correspondence of offences.'

 

23.  That Judgment was followed by Binchy J in Harrison, another case where additional information had been sent by the CPS in response to a s. 20 request following receipt of an EAW from the UK.  At paragraph 69 of his Judgment, Binchy J said as follows:-

 

'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 are being provided on behalf of the relevant judicial authority.

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 reflects Article 10 of the Framework Decision.

 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 therefore be rejected.  

 

24.  It is now clear, following Alchaster, that the principles of mutual trust and confidence do not apply to requests received from the United Kingdom. On the other hand, the general principles of good faith which underlie the operation of all extradition agreements apply to the consideration of TCAWs with the added factor, as referred to in paragraph 80 of Alchaster, that such applications should be considered cognisant of the fact that the UK is a long-standing member of the ECHR with a long history of compliance with its provisions.

 

25.  Section 20 is clear and, on a plain and ordinary reading thereof, allows the Court to consider a response received from an issuing state which includes the United Kingdom. There is no statutory basis to distinguish the United Kingdom from EU Countries in this regard.

 

26.  Applying the principles of good faith which underlie the operation of the Trade and Cooperation Agreement, this Court is entitled pursuant to s. 20 of the 2003 Act to receive and weigh information received not just from the issuing judicial authority (DJ Snow) but also from the CPS, who on the face of their response indicate that they were the body who applied to the issuing judicial authority for the TCAW. There is nothing to raise any concerns about the bona fides or reliability of the information received and indeed, from the case law cited above, it would appear that this is not at all unusual in relation to cases involving the UK. Furthermore, the additional information is of the most technical kind and does not in any way alter the offence for which surrender is sought or any of the salient information as to the circumstances which led to conviction and / or the issuance of the TCAW.

 

27.  There is no good reason not to follow the reasoning of Donnelly J in AW and Binchy in Harrison in this case, and the fact that this information is received in support of a TCAW and not an EAW, does not preclude this court, applying the principles of good faith that underlie the operation of the Trade and Cooperation Agreement, from reliance on documents and information received from the CPS in this case.

 

28.  The objection to the receipt of this additional information is not made out and the Court can rely upon the same.

 

29.  In any event, for the reasons set out below, I consider that the objections made in support of the argument made that the warrant is not compliant with Section 11 of the 2003 Act would not be made out even in the absence of the additional information.

 

Certification and Correspondence

30.  Having considered all of the documents, including the Additional Information received from the IJA dated the 22 November 2024, it is now beyond any argument that the IJA does not seek to rely upon certification of the offence in the TCAW as a listed offence for which correspondence need not be established pursuant to the provisions of Article 599(4) of the Agreement. This is expressly stated in the amended Section E provided where it is said 'The offence is not listed in the Trade and Cooperation Agreement List set out in Schedule 2 to the Extradition Act, 2003.'

31.  It is therefore common case that the TCAW is a Warrant issued in accordance with Article LAW.SURR.112 of the Trade and Co-Operation Agreement and it is necessary to demonstrate correspondence in accordance with s. 38 of the 2003 Act.

 

32.  Section 5 of the 2003 Act provides:-

 

'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 the law of the State'.

 

33.  The relevant principles for showing correspondence are now well established. In assessing correspondence, the question is whether the acts or omissions that constitute the offence in the requesting state would, if carried out in this jurisdiction, amount to a criminal offence - Minister for Justice v Dolny [2009] IESC 48.

 

34.  Having considered the facts underlying the offence as set out in Part (e) of the TCAW, which are exactly the same as those set out in the amended Part (e) sent as Additional Information on the 22 November 2024, I am satisfied that correspondence is made out with the offences of Manslaughter contrary to Common Law and Arson contrary to Section 2(4) of the Criminal Damage Act, 1991.

 

35.  Even if the Additional Information, dated the 22 November 2024, had not been received I would have concluded that, based on the information contained at Part (e) of the TCAW that correspondence was established between the conduct set out therein and the offences of Arson and Manslaughter in Irish Law. I would have been entitled in those circumstances, where the 'ticked box' provision had been erroneously relied upon by the requesting state, to look behind this mistake and see if the conduct corresponds with offences under Irish law.

 

Section 44 of the 2003 Act and Extra Territoriality

 

36.  On the underlying facts as set out in paragraph (e) of the TCAW, and as repeated in the amended paragraph (e) sent by way of Additional Information, it is clear that no issue of extra territoriality arises in this case. The offences were committed in England and there was therefore no question of any issue arising under Section 44 of the 2003 Act.

 

37.  A statement was made in the TCAW that the offence(s) are 'extra territorial offence(s)' under UK law. It has now been made clear, in the additional information, that whilst manslaughter is an extra territorial offence under English Law, these offences were not extra territorial and were committed in England.

 

38.  This ground of objection is dismissed.

Lack of Clarity - Sentence

39.  I agree with the submissions made by the Applicant in his original submissions, filed prior to the receipt of Additional Information in relation to this issue on the 22 November 2024.

 

40.  In other words, prior to the clarification sought, following the submission of the Respondent, it was clear that a sentence of 10 years imprisonment had been originally imposed and 6 years remained to be served. Furthermore, the documentation submitted in relation to the licence, received in a section 20 Response dated the 23 August 2024, confirms this to be the case.

 

41.  It is clear that, insofar as Section H of the TCAW is concerned, the provision selected by the Respondent from the warrant only refers to a situation where a custodial life sentence or lifetime detention order arises, and no such sentence was ever in play in this case.

 

42.  Once again if there was any doubt or confusion, and I consider there is no basis for any such doubt or confusion on this issue, the matter is put beyond even the most anxious of scrutiny by the reply from the CPS dated the 22 November 2024.

 

Lack of Clarity - Section 11 of 2003 Act

 

43.  The Respondent claimed that there was an impermissible lack of clarity in the TCAW and particularly relied upon the following:-

 

a.       Alleged confusion due to the ticking of Box E.1 thereby suggesting that the offences for which surrender was sought were listed offences such that correspondence need not be proven. My conclusions on this issue are set out above at paragraphs 30 to 35;

b.      Alleged confusion due to the suggestion on the TCAW that the offences were extra territorial offences. My decision in relation to this issue is set out above at paragraphs 36 to 38;

c.       Alleged confusion in relation to the sentence which the Respondent may have to serve owing to references to life sentences, reviews etc. My conclusions in this regard are set out above at paragraphs 39 to 42.

 

44.  There was, at the very worst, a possible lack of care on the part of the IJA when drafting the TCAW which was sent to this jurisdiction. It seems that the IJA worked off a boilerplate TCAW and might perhaps have excised / amended the information in relation to the issues assiduously identified by the Respondent.

 

45.  Even in the absence of the additional information provided on the 22 November 2024, however, the Court could have safely concluded that there was no reality to any of the complaints made by the Respondent in this regard. It is clear from the TCAW itself that:-

 

a.       The particular conduct which underlay the offences for which surrender was sought took place in England and no issue of extra-territoriality arose and this was not in any way effected by the fact that, as a matter of English Law, the courts of England and Wales can exercise extra territorial jurisdiction for such offences;

b.      It was patently clear that the Respondent was sought to serve the balance of a 10-year sentence imposed for Manslaughter

c.       The jurisprudence of the Irish Courts would have allowed this Court to look behind the erroneous ticking of the box and consider if correspondence was established.

 

46.  Any possible confusion, which was in my view non-existent from a full and fair reading of the TCAW, is put beyond even the most critical of scrutiny as a result of the replies received by way of Additional Information.

 

47.  The complaint of non-compliance with s. 11 of the 2003 Act is not made out.

 

Section 4A of 2003 Act

 

48.  The Respondent submits that the amendments effected to the 2003 Act, particular to Section 4A and 22 thereof, by way of secondary legislation in the European Union (European Arrest Warrant Act 2003) (Amendment) Regulations 2021 were ultra vires and are of no lawful effect.

 

49.  This argument was rejected in Minister for Justice v McAuley [2025] IEHC 28. At paragraphs 7.5 to 7.10, the court made the following comments on this issue:-

 

1.      

2.      

3.      

4.      

5.      

6.      

7.      

7.1.      

7.2.      

7.3.      

7.4.      

7.5.     'The submission of the Respondent as to the lawfulness and / or constitutionality of Section 4A of the 2003 Act (as amended) is in any event misconceived and based on a misinterpretation of the amended section.

 

7.6.     Section 4A (as amended) provides:-

'It shall be presumed that an issuing state will comply with the requirements of the relevant agreement, unless the contrary is shown'

 

 

7.7.     Section 2 of the 2003 Act (as amended) defines 'relevant agreement' as follows:-

'relevant agreement' means

(a)   In relation to a European arrest warrant, the Framework Decision,

(b)   In relation to a Trade and Cooperation Agreement arrest warrant, the Trade and Cooperation Agreement, and

(c)   In relation to an arrest warrant within the meaning of the EU - Iceland Norway Agreement, the EU - Iceland Norway Agreement'

 

7.8.     Section 4A (as amended) therefore means that there is a presumption that the issuing state will comply with the requirements of whichever of the 'relevant agreements' applies. In this case the Court is concerned with the Trade and Cooperation Agreement, which is one of the three types of 'relevant agreement' as set out in Section 2 of the 2003 Act (as amended). Contrary to the submission made by the Respondent, Section 4A (as amended) does not seek to apply the principles of mutual trust and confidence to the Trade and Cooperation Agreement. Section 4A requires this Court to presume, unless the contrary is shown, that the United Kingdom will comply with the requirements of the Trade and Cooperation Agreement and there is no principle of mutual trust and confidence in or underlying the operation of that Agreement.

 

7.9.     The Trade and Cooperation Agreement itself envisages that the parties thereto will act with mutual respect and good faith in carrying out the tasks flowing from the Agreement. By way of illustration, Article 3 of the Agreement provides:-

 

'1. The parties shall, in full mutual respect and good faith, assist each other in carrying out tasks that flow from this agreement and any supplementing agreement.

2. They shall take all appropriate measure, whether general or particular, to ensure the fulfilment of the obligation arising from this Agreement and from any supplementing agreement, and shall refrain from any measures which could jeopardise the attainment of the objectives of this Agreement or any supplementing agreement'

 

7.10. I agree with the Ministers submission that the effect of Section 4A of the 2003 Act (as amended), insofar as it applies to the Trade and Cooperation Agreement, does no more than confirm the existence of the general presumption of good faith that applies to all extradition arrangements into which this state enters, and ensures its application to the principles set out in the Agreement. The matter is put succinctly and correctly by the Applicant when she states that:

 

'There is no new presumption, or any presumption which was unlawful for the Minister to insert, by way of statutory amendment in accordance with the provisions of the European Communities Act, 1972, into section 4A of the 2003 Act'

 

50.  This ground of objection is rejected for similar reasons in this case.

 

Non-Application of Mutual Trust and Confidence

 

51.  It is accepted by both parties that, following the withdrawal of the UK from the European Union and the clarification of the law by the CJEU in Alchaster, that the principles of mutual confidence and trust that underlie the operation of the Framework Decision have no application to TCAWs received from that state.

 

52.  Although, the principles of mutual trust and confidence do not apply to TCAWs received from the United Kingdom, this Court should consider fundamental rights objections cognisant of the fact that Ireland has entered into extradition arrangements with the United Kingdom pursuant to the Trade and Co-Operation Agreement and that the United Kingdom is a party to the European Convention on Human Rights. As indicated in the decision of this Court in Minister for Justice v McAuley [2025] IEHC 28;

 

' 7.2 There is no dispute between the parties that, following the decision of the CJEU in Alchaster, as a matter of law the presumption of mutual trust and confidence which underlies the operation of the Framework Decision cannot apply where, as here, the Court is considering fundamental rights objections to surrender to the United Kingdom on foot of a TCAW. The Court agrees that the presumption of mutual trust and confidence has no application in this case.

 

7.3 For reasons elaborated upon below, I am satisfied that the correct position is that a weaker presumption applies where the Court is considering objections to surrender to the United Kingdom on foot of a TCAW. Consistent with the general approach by the Irish Courts to extradition applications from other third countries (countries that are not within the Framework Decision), as modified to take into account comments of the CJEU in Alchaster as to the significance of a history of compliance by the United Kingdom with international human rights treaties including the European Convention on Human Rights, this weaker presumption is one of good faith and compliance on the part of the UK with the fundamental rights of the Respondent if surrendered in particular those set out in the ECHR.

 

53.  Where objections are raised to surrender to the United Kingdom on the basis that, if surrendered to the United Kingdom on foot of a TCAW, there would be a real risk of a breach of fundamental rights, then the Court must not adopt the two stage test as set out in Aranyosi & Caldaru, as such a test only applies because of the system of mutual confidence and trust which applies under the Framework Decision and the United Kingdom is no longer a part of the EU and the Framework Decision.

 

54.  A one step test applies which requires an evaluation, without any reference to the presumption underlying the operation of the Framework Decision, of all the circumstances in the individual case in order to consider whether there are valid reasons for believing that that person would run a real risk to the protection of his or her fundamental rights is surrendered to the United Kingdom.

 

55.  In the course of considering an objection to surrender to the USA made on the grounds of a risk of inhuman and degrading treatment, in AG v Martin Wall [2022] IECA 42, Donnelly J explained the approach to be adopted in the following terms :-

 

'18.  The principles on which a court in this jurisdiction must act in cases of surrender under the 2003 Act were authoritatively set out by the Supreme Court in Rettinger and have become known as the Rettinger principles. In a case where a requested person claims that he will be at real risk of being subjected to inhuman and degrading treatment on extradition, the burden is on him to adduce evidence that there are substantial/reasonable grounds for so believing that if he is returned he will be exposed to a real risk of being subjected to such prohibited treatment. The Rettinger principles, themselves a reflection of principles in the leading European Court of Human Rights ("ECtHR") case of Saadi v. Italy (App. No. 37201/06)  (2009) 49 EHRR 30  apply to extradition requests as well as to EAWs. This was most recently stated by the Supreme Court in the case of Attorney General v. Davis where, having considered whether there was a difference between the Rettinger principles and those gleaned from Saadi v. Italy, McKechnie J. said:

"Accordingly, it is the... Rettinger...principles, as subsequently explained and adapted in Attorney General v. O'Gara...and Attorney General v Marques [2015] IEHC 798...in relation to extradition to the U.S, which form the applicable test in an [A]rticle 3 situation: the question, as stated, is whether the evidence establishes that there is a real risk that, if surrendered and extradited, the proposed extraditee will be subjected to torture or inhuman or degrading treatment. This test applies where the objection raised is based on what is prohibited by that provision, [...] As one can never be definite regarding future events, the aim of the exercise is to measure risk. This requires a fact-specific inquiry conducted in part against known facts and in part against future events. The matters for consideration will inevitably be particular to the person concerned and may range over an extensive area; likewise in relation to the prison conditions, and perhaps even in respect of the legal and judicial regimes of his intended destination. The exercise so conducted should and must be as thorough as the facts and circumstances demand."

19.  A point to note is that McKechnie J. referred to the fact that some authorities use "substantial grounds" (the language of Saadi v. Italy) while other authorities use "reasonable grounds" (the language of legislation). He opined that, given the difficulty in obtaining evidence, he preferred the latter although there may be no difference between the two. Of particular significance to the issue in the present case is the fact that McKechnie J. identified the aim of the exercise as being to measure risk: measuring the downstream risks to this appellant is therefore vital

.20. The Rettinger principles state that a requesting State may dispel any doubts by evidence, but this does not mean that the burden has shifted. The principles emphasise that a court has to be forward-looking in assessing the foreseeable consequences of sending the person to the requesting State, and that the mere possibility of ill treatment is not sufficient.

 

56.  In my opinion the general approach to outlined by Donnelly J in Wall is, with one modification, compatible with the approach to such matters as outlined by the CJEU in Alchaster. That one modification arises from the observations by that Court at paragraph 80 of Alchaster. Although the principles of mutual confidence and trust do not apply when considering objections in the context of a TCAW warrant, this Court must nonetheless approach fundamental / human rights objections to surrender to the United Kingdom cognisant of it being a party to the European Convention on Human Rights, its long standing respect for the protection of fundamental rights as set out in that Convention and the provisions in place in UK law to ensure the protection of such rights and freedoms.

 

Prison Conditions

 

57.   The Respondent refers in his affidavit to his various mental health difficulties and what he claims is a lack of treatment for such difficulties in the English prisons system. He states:-

 

a.       Shortly after arrest for these offences he suffered a psychotic breakdown and was admitted to King Charles Hospital, Ladbroke;

b.      He had a difficult time in prison with poor mental health and he was constantly paranoid

c.       As a Category B prisoner, he was housed with some of the most dangerous prisoners in the United Kingdom

d.      Due to prison officers falsely and maliciously telling other prisoners that he was a sex offender, his life was at risk in various prisons, and he had to take extreme measures to put himself on protection

e.       He attempted suicide at HMP Woodhill due to the threats made against him

f.        Having been released on licence he was not provided with proper accommodation and supports and ended up living on the streets and was robbed three times

g.      He begged his probation officer, Ms Pizzutto, to allow him to return to Ireland where he had family support

h.      He currently hears voices and has been taken off some medication in Wheatfield prison

i.        He claims to have engaged with Ms Pizzutto to the best of his ability

 

58.  No supporting documentation has been provided in relation to the matters raised by the Respondent. There are for example no medical reports from either the United Kingdom or Ireland which set out the medical / mental health history of the Respondent. There is no evidence as to his current condition and what, if any, medication he is taking. No evidence has been adduced to support any of the claims he has made on affidavit.

 

59.  The Respondent refers to general ongoing criticisms of conditions of detention in the United Kingdom and, in this regard, has exhibited and at hearing produced a series of reports setting out the results of various inspections of prisons in the UK and other documents which express concerns about various aspects of UK prisons.

 

60.  The Respondent further refers to two recent decisions of the Court of Appeal in England, R v Arie Ali [2023] EWCA Crim 232 and R v Manning [2020] ECWA Crim 592, where one of the factors that those Courts said ought to be considered by Judges when considering sentence was the then well-known issue of possible overcrowding in UK prisons. It was, for example, acknowledged by the then Deputy Prime Minister in a statement to Parliament in 2023 that prisons were operating at close to full capacity which resulted in prisoners being held further away from home, restrictions in access to rehabilitation and being held in police cells.

 

61.  The respondent also makes a general assertion that, owing to his medical condition and general criticisms as to certain deficiencies in the provision of health care in the requesting state, there is a real risk of a breach of his rights if surrendered. Whilst he refers to a number of cases from the ECtHR which set out the uncontroversial obligations of detaining authorities to provide adequate medical treatment for persons in their care, he has not in my opinion pointed to evidence which would suggest there is a real risk that he specifically would not receive adequate medical care if surrendered to the United Kingdom.

 

62.  Furthermore, he has not put before the Court any case law, either from the UK or the ECtHR, which might suggest that there is a risk of a breach of the ECHR in UK prisons on the basis that a person with mental health issues would not be provided with adequate care.

 

63.  The Respondent cites the decision of Greally J in Minister for Justice v Sharples [2022] IEHC 282, where he states that surrender was refused on mental health and prison conditions grounds. This is in fact incorrect as Greally J dismissed the objection to surrender made in that case on mental health and prison conditions grounds.

 

64.  The progress of that case is instructive and can be contrasted with what has occurred in the present case. Mr Sharples was sought by Scotland for prosecution for firearms offences. A previous application for surrender had been refused by Mc Dermott J on the 29 June 2023 on the basis that he was not satisfied that the specific and documented needs of Mr Sharples would be met in the Scottish prison to which he was likely to be sent and therefore there was a real risk of breach of Article 3 of the Convention and Article 4 of the Charter. McDermott J had sought a specific assurance that Mr Sharples very particular medical needs would be met, and the Scottish authorities were not then in a position to provide the same.

 

65.  Three reports had been placed before the Court, prepared by Professor Patricia Casey, specifically addressing his needs and his history of autism and Asperger's syndrome.

 

66.  A second application was subsequently heard by Greally J and, having considered assurances then provided by the Scottish authorities, she was satisfied that the Scottish Prison Service were then in a position to sufficiently cater for the needs of Mr Sharples as identified by Professor Casey.

 

67.  The situation in the present case is very different for inter alia the following reasons:-

 

a.       No medical or other expert evidence has been put before the Court setting out the mental health issues of this Respondent;

b.      No medical or other expert evidence has been put before the Court to indicate what treatment the Respondent is currently receiving (or not receiving) whilst in custody in this jurisdiction;

c.       No evidence has been put before the Court setting out what treatment or medication the Respondent says he was deprived of previously whilst detained in the United Kingdom;

d.      No evidence has been put before the Court as to any specific needs of the Respondent;

e.       No evidence has been put before the Court to establish that any particular needs of the Respondent will not be met in the UK prison estate.

 

68.  Concerns have been raised in relation to issues in prisons generally in the United Kingdom. Reports have been prepared by bodies tasked with inspecting prisons in the United Kingdom and a number of reports have been provided which contain general criticisms of the UK prison estate and of particular institutions. Issues have been raised concerning inter alia:

 

a.       Overcrowding in the prison estate generally and in particular prisons;

b.      Inter prisoner violence and how the authorities might be dealing with the same;

c.       Failures in certain instances to provide certain medical treatment in a timely manner, including treatment for mental health issues;

d.      The absence of sufficient resources and staffing in UK prisons;

e.       The absence of sufficient resources for rehabilitation.

 

69.  The court has had to consider such general criticisms in other cases, Minister for Justice v Keating [2024] IEHC 515 and Minister for Justice v Dumitri [AKA Cerban] [2025] IEHC 69, and has rejected claims that, given the deficiencies identified in the UK prison estate generally and in certain specific prisons, surrender to the United Kingdom should be refused as there is a real risk of breach of Article 3 of the Convention.

 

70.  This court is cognisant of various difficulties and issues in the UK prison estate, but nothing has been put before the court in this case to reach any conclusion different to that in those recently decided cases. Generalised complaints have been made by the Respondent arising from such reports but no evidence has been put before the Court in relation to this Respondents specific mental health issues, his needs and to support any contention that there is a real risk that the UK prison authorities will fail to meet his needs in a manner that would lead to a breach of his rights under the ECHR.

 

71.  On the facts of this case, applying the test set out in Alchaster and without any reference to the principles of mutual trust and confidence, I have come to the same conclusion arrived as that arrived at in Keating and Cerban. Applying the weaker presumption that now arises in relation to TCAWs, I do not consider that the evidence adduced by this Respondent gives rise to concerns that, if surrendered, he will be exposed to inhuman and degrading treatment such as to give rise to a possible breach of Article 3 of the Convention.

 

72.  Whilst there are ongoing difficulties in relation to issues such as overcrowding, inter prisoner violence, timely health treatment and rehabilitation generally in the UK prison estate, having considered all of the material submitted by the Respondent and the submissions thereon, I do not consider that he has shown even a generalised risk of ill treatment such that might raise issues under Article 3 of the Convention.

 

Family and Personal Rights

 

73.  No submissions were filed or made at the hearing on this issue. There is no evidence put before the Court to suggest that surrender would be disproportionate such as to engage Article 8 of the Convention, the Charter or the Constitution.

 

74.  There is therefore clearly no evidential basis offered to support this ground and it is therefore dismissed.

 

Right to Travel

 

75.  The Respondent makes a novel submission based on what might occur in the event that he is surrendered and, having served a further custodial part of his sentence, is again at some point released on licence. The Respondent submits that, whilst possibly on licence in the future, any requirement that he remain in the requesting state during the licence period, unless he is granted permission to travel by the authorities of that state, constitutes an impermissible interference with his right to travel.

 

76.  Relying on a series of decisions of the CJEU which confirm the centrality of the rights of citizens of the Union and their family members to move freely within the EU, various provisions of EU law, Article 14.1 of the Withdrawal Agreement, Article 13.2 of the Universal Declaration of Human Rights and Article 2.2 of the Fourth Protocol to the ECHR, he makes the claim that the possible ongoing restriction on his right to leave the UK if he were subjected to a condition on a licence prohibiting him from so doing during the licence period, leads to a risk of breach of his rights.

 

77.  This argument is without any merit. The Respondent has cited a series of provisions and Judgments which are founded on facts and circumstances which bear no relation to the facts and circumstances in this case. Not one of the cases cited by the Respondent even touched upon or alludes to the situation of a person who might be released on licence as part of a sentence lawfully imposed following conviction.

 

78.  The rights of EU citizens to move freely within the Union, though fundamental, are not absolute. The UK, as a contracting state to the ECHR, may interfere with the right of a person to travel for a legitimate purpose. There is no suggestion that the Respondent, upon the completion of his sentence, will be prevented from leaving the UK. Minister for Justice v O'Donnell [2014] IEHC 138, is clear authority against the argument made by the Respondent.

 

79.  The licence which he was previously released upon, at point 5(vii), did not provide an absolute prohibition on his travelling outside the requesting state. The licence was lawfully issued as part of the sentencing regime to which he was subject following conviction. Part of the purpose of being released on licence is rehabilitation and it is therefore logical and reasonable that a person on licence is not permitted to leave the sentencing jurisdiction without permission. A person continues to serve a sentence whilst on licence, but the licence portion of the sentence is served in the community.

 

80.  The United Kingdom is a contracting party to the Convention and this Court, as observed by the CJEU at paragraph 80 of Alchaster, applies the principles of good faith when considering applications for surrender on foot of TCAWs and this includes taking into account the fact that the UK is a member of the ECHR and has a long history of compliance with the Convention. No evidence has been put before the Court to raise any concern that, at some future time when he is released on licence, the Respondent would not have access to the UK Courts to challenge any unlawful restriction on his freedom to travel and / or that those Courts would not uphold his rights under the Convention.

 

81.  This ground of objection is therefore dismissed

 

82.  I will therefore make an order under Section 16 of the 2003 Act