THE SUPREME COURT

[S.C. NO. 130 OF 2004]

Denham J.
Fennelly J.
McCracken J.

IN THE MATTER OF AN APPLICATION FOR
AN INQUIRY UNDER ARTICLE 40.4.2
OF THE CONSTITUTION

BETWEEN/

THOMAS JAMES O’ROURKE

APPLICANT/APPELLANT

AND

THE GOVERNOR OF CLOVERHILL PRISON AND
THE ATTORNEY GENERAL

RESPONDENTS

[Judgments delivered by Denham J. & McCracken  J.; Fennelly J. agreed with both judgments]

Judgment delivered on the 13th day of May, 2004 by Denham J.

1.	Appeal
	Thomas James O’Rourke, the applicant/appellant, hereinafter referred to as the applicant, has brought this appeal against the decision of the High Court (Peart J.) delivered on the 26th February, 2004 which held that the applicant is being detained in accordance with law and refused his application for release under article 40.4.2 of the Constitution.

2.	Facts on Arrest
	The facts on the arrest of the applicant are not in issue and were set out fully by the High Court, as follows:
“The applicant was arrested in this jurisdiction on the 13th January, 2004 on foot of three warrants of arrest which was issued on the 18th December, 2003 by the Crown Court at Kingston Upon Thames, England.  These warrants are in respect of charges of robbery, conspiracy to rob, and agreeing to do certain acts with intent to pervert the course of justice.  The offences are said to have been committed between September, 2001 and January, 2002.
Upon his arrest he was brought before the High Court on 13th January, 2004, pursuant to the provisions of section 45 of the Extradition Act, 1965, as amended (‘the 1965 Act’).
Thereafter he has been remanded in custody pending the hearing of the application for an order for his rendition to the United Kingdom pursuant to the provisions of section 47 of the 1965 Act.”

3.	Facts as to system operated by Commissioner
	The facts as to the receipt of the warrants and the system operated by the Commissioner was deposed to by Sergeant Michael Heffernan, as follows:
“…the originals of the said warrants were received at Garda Headquarters from the Metropolitan Police on the 22nd December, 2003 and endorsed for execution by Assistant Commissioner Egan on the 2nd January, 2004.  I say and believe that the receipt of the said original warrants on the 22nd December, 2003 by Garda Headquarters amounts to a production of the warrants to the Commissioner for the purpose of section 43 of the Extradition Act, 1965 as amended.   
3.  For the assistance of this Honourable Court I can set out the operational mechanics of the Garda Síochána Extradition Section.  I say that a separate Extradition Section operates within the Garda Síochána and is located at Garda Headquarters in the Phoenix Park.  I say that when warrants are received in the Extradition Section they are received there on behalf of the Assistant Commissioner with responsibility for extradition.  The warrants, in the case of those coming from the United Kingdom, if it appears that the person may be in the State or may intend to enter the State, shall be endorsed for execution, subject to the provisions of the Extradition Act, 1965.  For the purposes of considering whether the Attorney General will give a direction as set out in section 44 of the said Act the warrants must be sent to the Attorney General for his consideration.  On receipt of the present warrants on the 22nd December, 2003 the copy warrants and supporting documentation were sent on the same date to the office of the Attorney General for the purposes of section 44 of the Extradition Act, 1965 as amended would be given (sic).  Pursuant to instructions from the Attorney General on the 24th December, 2003 the warrants were ready to be endorsed.  They were subsequently endorsed on the 2nd January, 2004, having already been produced for production on the 22nd December, 2003.”

4.	Question of Law
	At issue in the High Court, and in this court on appeal, is a question of law.  On behalf of the applicant it was submitted that after the coming into force of the European Arrest Warrant Act, 2003, hereinafter referred to as the Act of 2003, on the 1st January, 2004, the applicant may not be dealt with under the provisions of Part III of the Extradition Act, 1965, as amended, hereinafter referred to as the Act of 1965, as that Part has been repealed by s. 50 of the Act of 2003, save in limited circumstances, provided for in s. 50 (2) (a) and (b) of the Act of 2003 which, it was submitted on behalf of the applicant, do not apply to this case.  Consequently, it was submitted on behalf of the applicant, the Assistant Commissioner of An Garda Síochána who endorsed the warrants on 2nd January, 2004 was not entitled to do so under s. 43 of the Act of 1965.

5.	Law 
	The European Arrest Warrant Act, 2003 is an Act to bring into effect a European Union Council framework decision of 13th June, 2002 on the European Arrest Warrant and the surrender procedures between member states, to amend the Extradition Act, 1965 and to provide for connected matters.  The Act of 2003 states in s. 1 (2) that the Act comes into operation on 1st January, 2004.  The application of the Act is set out in s. 4 (1) which provides:
“Subject to subsections (2) and (3), this Act shall apply in relation to an offence, whether committed or alleged to have been committed before or after the commencement of this Act.”

Subsections (2) and (3) are not relevant to this case.  Thus, the 2003 Act provides that it will apply to an offence whether alleged to have been committed before or after the 1st January, 2004, and the offences in this case were alleged to have been committed prior to 1st January, 2004.  However, in repealing the Act of 1965, the Act of 2003 made provision as follows:
	“50.(1)  Part III of the Act of 1965 is repealed.
(2)  Where, before the commencement of this Act, a warrant issued by a judicial authority in a place in relation to which Part III of the Act of 1965 applies was-
(a)  produced to the Commissioner of the Garda Síochána for the purpose of section 43 of the Act of 1965, or
(b)  endorsed for execution under that Part,
then, notwithstanding the repeal of the said Part III effected by subsection (1), that Part shall, on and after the said commencement, continue to apply in relation to that warrant and the person named in that warrant shall be dealt with under and in accordance with that Part.”

It is this section which the respondents submit applies to this case.  The warrants were not endorsed before 1st January, 2004 and so s. 50 (2) (b) does not apply.  

At issue is whether s. 50 (2) (a) of the Act of 2003 applies.  It is clear that the words “produced” and “for the purposes of s. 43 of the Act of 1965” are at the core of the case.  The person to whom the warrant is “produced” is also important.  The Act of 2003 exempts from the procedures under that Act a warrant which was issued by a judicial authority in a place to which Part III of the Act of 1965 applies where prior to 1st January, 2004 it was produced to the Commissioner of the Garda Síochána for the purposes of s. 43 of the Act of 1965.  

6.	“Produced”
	Section 50 (2) of the Act of 2003 refers to a warrant which, before the 1st January, 2004, was “produced” to the Commissioner of the Garda Síochána for the purposes of s. 43 of the Act of 1965.  Thus, the Act of 2003 exempts from that Act a warrant which was issued by a judicial authority in a place to which Part III of the Act of 1965 applies where prior to 1st January, 2004 it was produced to the Commissioner of the Garda Síochána for the purposes of s. 43 of the Act of 1943.  The question then is whether before 1st January, 2004 the warrants were “produced to the Commissioner of the Garda Síochána for the purposes of section 43 of the Act of 1965.”  The relevant facts, as found by the learned trial judge, and not contested, were as follows:

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

The evidence was that the warrants were received in the office of the Commissioner of An Garda Síochána on the 22nd December, 2003.  No evidence was given that the warrants were produced to, or considered by, the Commissioner or other person designated by the legislation.

7.	Commissioner
	In the Act of 1965, the designated persons are specifically defined.  Section 42 of the Act of 1965 provides that “Commissioner of the Garda Síochána” and “Commissioner” include a Deputy Commissioner and an Assistant Commissioner.  Section 43 of the Act of 1965 and s. 50 of the Act of 2003 must be interpreted in light of that statutory definition.  The legislation provides that designated persons carry out the functions stated.

8.	Minister
	The Act also provides for an executive role in the process.  Section 44 (1) of the Act of 1965 states:
“A warrant shall not be endorsed for execution under this Part if the Minister or the High Court, on the question being referred to the Court by the Minister, directs in accordance with this section that it shall not be so endorsed.”

	It is clear that it is envisaged under the Act of 1965 that the Minister shall have a view on the warrant.  The Minister is the Minister for Justice.  It is also plain that the view of the Minister should be obtained prior to endorsement as the Act is mandatory that the Commissioner shall not endorse the warrant for execution if the Minister so directs.  Consequently, a process of several stages is envisaged in s. 43 of the Act of 1965 and indeed in s. 50 of the Act of 2003.

9.	High Court Judgment 
	Having referred to s. 44 (1) of the Act of 1965 the learned High Court judge held:
“This section makes it quite clear that before the Commissioner is permitted to endorse the warrants for execution under the provisions of section 43 (1) (b) of the 1965 Act, he must consult the Minister after the warrants have been received by him.  There is therefore a two-step process involved.  Clearly section 44 does not come into play until the warrants have been produced to the Commissioner, since until he has the warrant he cannot refer it to the Minister for his direction under section 44 of the Act.  In my view therefore, it cannot be so that the ‘production’ of the warrant to the Commissioner after the Minister has been consulted is what constitutes the warrant being ‘produced’ to the Commissioner for the purposes of section 43 (2) (b) of the 1965 Act.  Otherwise there is no legal basis for the Commissioner referring the matter on to the Minister.
The scheme of the Act, in my view, does not envisage that the views of the Minister are to be obtained other than by the Commissioner contacting him in that regard following the production of the warrant to him.”

I am satisfied that this is a correct statement of the law.

10.	Submissions 
	On behalf of the applicant, counsel submitted that the receipt of the warrant in the office of the Commissioner on 22nd December, 2003 was not “production” pursuant to s. 43 (1) (b) of the 1965 Act.  At that time staff in the office dealt with the warrants.  It was submitted that the warrants were not “produced” to the Commissioner until they were before him on 2nd January, 2004, in which case the 1965 Act does not apply and the applicant is in unlawful detention.  Counsel submitted that the Commissioner was not mandated to obtain the view of the Minister, that the section is prohibitory.  Also, it was submitted, that as the “Commissioner” is defined in the Act, the receipt of the warrants in the office of the Commissioner was not production under s. 43 (1) (b) of the 1965 Act.  

On behalf of the respondents it was submitted that the interpretation in the judgment of the High Court was correct.  It was submitted that the procedure under the Act of 1965 envisages production and endorsement as being two separate and distinct phrases in the extradition process.  In this case the warrants were received in the Extradition Section at Garda Headquarters on behalf of the Assistant Commissioner with responsibility for extradition.  It was submitted that the receipt of the warrants is the production to the Commissioner.

11.	Core
	At the core of this case is whether the receipt of the warrant in the extradition division of Garda Headquarters was such that it was “produced to the Commissioner of the Garda Síochána for the purposes of s. 43 of the Act of 1965”: s. 50 (1) (a) of the Act of 2003.

12.	National Law
	At issue in this case is the interpretation of national law.  The Act of 1965 governed rendition between the jurisdictions of England and Wales and Ireland until the Act of 2003 came into effect.  The Act of 2003 became applicable from 1st January, 2004.  It retained certain saving clauses for cases then being processed.  The Act of 2003 provided that in certain circumstances the Act of 2003 would not apply, that the Act of 1965 would still be applicable.  One of the savers of the prior law of the Act of 1965 was where a warrant issued in a relevant jurisdiction was produced to the Commissioner of the Garda Síochána before 1st January, 2004 for the purposes of s. 43 of the Act of 1965.  

The Act of 2003 does not define “produced.”  The Act of 1965 does not define “production.”  However, the term “produce” is defined in the Concise Oxford Dictionary as:
		“1.  bring forward for consideration, inspection or use.”
…

Stroud’s Judicial Dictionary, 6th edition, 2071 states that:
“to produce a thing to a person, semble, means to show it to him personally and does not involve the idea that the possession of it is to be parted with.”

I am satisfied that the ordinary meaning of “produce” is to bring forward for consideration.  Section 43 provides for “production.”  The production is for consideration.  Consideration follows on the production.

Section 43 (1) (b) of the Act of 1965 states plainly that “on production of the warrant to the Commissioner.”  Thus the plain words of the section require that the production be to the person designated.  This is consistent with the importance of the duty of considering the warrant for endorsement as to whether a person be delivered out of the jurisdiction.

The words of s. 43 (1) (b) then go on to give functions to the Commissioner stating where “it appears to the Commissioner that the person named or described therein may be found in the State.”  Thus, in his consideration, the Commissioner has to examine whether the person may be found in the State.  Clearly, inquiries (even if initial inquires may have been made) are required under this section.  These inquiries are envisaged as being made between the production of the warrant and its endorsement.  Such inquires may be short, for example if the person is in an Irish prison, or longer if more information needs to be sought.

The issue in this case is whether the warrants were “produced” to the Commissioner for the purposes of s. 43 before 1st January, 2004.  The evidence is that they were “received” in the Extradition Unit by other persons, on behalf of a designated person.  The question is whether they were “produced” for the purposes of the law.  If the transitional arrangements were to relate to endorsed warrants only, then the legislation would have said so.  However, that is not the situation.  The legislative arrangements relate also to warrants which have been produced, but were not yet endorsed, for the purpose of s. 43 of the Act of 1965.  This refers to warrants at an earlier stage in the scheme under the Act of 1965; such warrants may still be processed under the procedure in Part III of the Act of 1965.  This meaning is clear from the plain words of s. 50 of the Act of 1965.  It is also clear from the plain words of the legislation that it is a sequential process which commences with the warrants being produced to the designated person.

A Step Too Far
There was no evidence that the warrants were produced to the Commissioner, or any of the persons who, under the Act of 1965, are designated persons, to carry out the function described in s. 43, prior to 1st January, 2004.  The evidence was that the warrants had been received in the Extradition Unit in Garda Headquarters.  Essentially, the court was requested to infer that there had been “production” of the warrants.  However, only the designated persons are enabled to carry out the functions set out in s. 43 and there was no evidence of even receipt by those persons in 2003.  Whatever about considering inferring receipt by designated persons in such circumstances, the court must address the issue of “production” for the purposes of s. 43 of the Act of 1965.  Receipt of the warrants by non-designated persons is so far removed from the concept of production of the warrants to a designated person that I am satisfied it may not be inferred.  It would be a step too far from the clear words of the statute.
Further, it is clear that s. 43 envisages that the warrants be produced to the Commissioner for the purpose of endorsement.  There would be a time lapse between production of a warrant and its endorsement.  It may well be that contact was made prior to the production of the warrant both between relevant persons of the two jurisdictions, and between relevant persons within this jurisdiction, thus reducing potential delay when the warrants are produced.  However, specific matters have to be attended to between the production of the warrants and their endorsement.  This is reflected in the saver at s. 50 (2) (b) of the Act of 2003.  There is no evidence that there was production of the warrants to a Commissioner, or other designated person, prior to 1st January, 2004. 

The words in s. 50 of the Act of 2003 are clear and unambiguous – they provide that the Act of 1965 is repealed save where the warrants were produced to the Commissioner for the purposes of s. 43 of the Act of 1965 prior to 1st January, 2004.  Consequently, national law, that is s. 43 of the Act of 1965, applies when warrants were produced to the Commissioner prior to 1st January, 2004.  It is then a matter of construction of the legislation to determine the meaning of “production.” 

The law on the interpretation of statutes, and the approach to be taken by the courts is well established: Howard v. Commissioners for Public Works [1994] 1 I.R. 101, Grealis and Corbett v. The Director of Public Prosecutions and the Attorney General [2001] 3 I.R. 144 at p. 176; and I do not intend to reopen that area of the law.  It is the duty of the court to give effect to the intention of the legislature.  That intent is obtained from the words of the legislation.  If the legislation is clear and unambiguous, the intent is plain.  In this case the words are clear and unambiguous and the intent of the legislature is clear.  It gave a function to specially designated persons.  Those persons only may carry out the functions in s. 43 of the Act of 1965.  The legislation required production of the warrants to those persons.  Receipt by others could not be production to the designated persons.  As all the evidence in this case shows that there was receipt by others during the relevant time and production to the designated person only outside the permitted time, it is clear that s. 43 does not apply.

Consequently, I am satisfied that the saver in the Act of 2003, applying the law in the Act of 1965, does not apply.  On the evidence before the court both the production to, and endorsement by, the Commissioner were in January, 2004.  This means that the applicable law was not that of the Act of 1965.  Consequently, the warrants are void.  I am satisfied that in light of the clear and unambiguous words of s. 43 of the Act of 1965 it should be interpreted on its plain words to which the ordinary meaning should be given.  In these circumstances the warrants were not produced to the Commissioner in 2003 and therefore the Act of 1965 does not apply.  Consequently, the warrants are not lawful.

13.	Transitional Provisions  
	The court was referred to the transitional provisions and the reference to requests received before 1st January, 2004.  It is expressed clearly in the transitional provisions of the Council Framework Decision of 13th June, 2002 that extradition requests received before 1st January, 2004 will continue to be governed by existing instruments relating to extradition.  These warrants were received prior to 1st January, 2004.  The relevant national law is s. 50 of the Act of 2003 which reflects the Council Framework Decision and requires that where before 1st January, 2004 the warrants were produced to the Commissioner for the purposes of s. 43 of the Act of 1965, that Act applies.  This requires consideration of the national law in s. 43 of the Act of 1965.  On so doing, I am satisfied, as analysed above, that the warrants were not produced to the Commissioner for the purposes of s. 43 within the required timeframe.

14.	Conclusion
For the reasons given I would allow the appeal and order the release of the applicant.  Nothing in this judgment should be construed as a bar to procedures under the new legislation.  It remains open to the relevant authorities to consider proceeding under the Act of 2003. 

THE SUPREME COURT

130/04

Denham J
Fennelly J
McCracken J

In the Matter of an Application for an Inquiry under Article 40.4.2 of the Constitution

Between:

Thomas James O’Rourke
Applicant

AND

The Governor of Cloverhill Prison and the Attorney General
Respondents

Judgment delivered by Mr Justice McCracken on the 13th day of May 2004.
_______________________________________________________

On 18th December 2003 three warrants of arrest were issued against the Appellant by the Crown Court at Kingston-upon-Thames in England.  On 22nd December 2003 these warrants were transmitted to the extradition section of the Garda Siochana at Garda Headquarters in Phoenix Park in Dublin.  It would appear that they were immediately sent to the Attorney General for his consideration pursuant to s.44 of the Extradition Act 1965, and presumably, although it is not stated in evidence, were also sent to the Minister under s.44(1) of that Act as amended.  On 24th December 2003 it was intimated to the extradition section of the Garda Siochana that there was no objection to the warrants being executed.

On 2nd December 2004 the warrants were executed by the Assistant Commissioner responsible for the extradition section. It is not in dispute that the Assistant Commissioner executed this warrant in purported pursuance of the provisions of s.43 of the Extradition Act 1965.  There is no evidence that the Assistant Commissioner, or any other person coming within the definition of “the Commissioner” within the meaning of the 1965 Act ever saw these warrants or had them physically produced prior to 2nd January 2004.

Section 50(1) of the European Arrest Warrant Act 2003 which came into force on 1st January 2004, repealed Part III of the Extradition Act 1965, including s.43 thereof.  Section 50 subsection 2 provided:-

“Where, before the commencement of this Act, a warrant issued by a judicial authority in a place in relation to which Part III of the Act of 1965 applies was:-

(a)  produced to the Commissioner of the Garda Siochana for the purposes of section 43 of the Act of 1965,  or

(b)  endorsed for execution under that part

then, notwithstanding the repeal of the said Part III effected by subsection (1), that part shall, on and after the said commencement, continue to apply in relation to that warrant and the person named in that warrant shall be dealt with under and in accordance with that part.”

Section 42 of the extradition Act 1965 defines “Commissioner” as including a Deputy Commissioner and an Assistant Commissioner for the purposes of Part III of the Act.  Quite clearly, therefore, the reference in s.50(2) of the 2003 Act to production to “the Commissioner of the Garda Siochana for the purposes of section 43 of the Act of 1965” means production to persons who come within the definition of “the Commissioner”   under s. 42 of the 1965 Act. 

Quite clearly the warrants in the present case were not endorsed for execution under Part III of the 1965 Act before 1st January 2004, and therefore the net issue is whether the receipt of the warrants by the extradition section of the Garda Siochana constituted production to the Commissioner within the meaning of s.50(2)(a) of the 2003 Act.  

The Appellant argues that the purpose of s.43 of the 1965 Act is to empower the Commissioner, or somebody coming within the definition of the Commissioner, to endorse a warrant for execution.  He argues, and it is accepted by the Respondent, that the warrant must be endorsed personally by somebody coming within the definition of “the Commissioner”.  It follows that, while the production of the warrant to the Commissioner may be a separate act from its endorsement, nevertheless, as the purpose of the production is to enable the Commissioner to perform a personal function in relation to it, therefore the production must also be personal to the Commissioner.  

The Respondent argues that “production” in s.50, and indeed “production” under s.43 of the 1965 Act, is a separate and distinct phase in the extradition process from the endorsement of the warrant.  The Respondent points to the general procedure under the Act and to the power to direct that the warrant shall not be endorsed which is given to the Attorney General and to the Minister.  It is argued that, when the warrants are received by the extradition section, they are by implication produced to the Commissioner so that he may ascertain whether there is any objection from the Minister or the Attorney General.  In my opinion this view is mistaken.  There is nothing in the Act which imposes an obligation on the Commissioner to make inquiries from the Minister or the Attorney General.  Quite clearly, as a matter of practice, copies of the warrants must be sent to the Minister and the Attorney General, but this is not an obligation imposed on the Commissioner.  It is an administrative function no doubt performed by members of the gardaí in the extradition section, and must be done as a matter of routine in the case of every warrant which is received in that section.  It does not appear to me to be necessary in any way that the warrant must be produced to the Commissioner, or indeed the Commissioner must be aware of it, before it is sent to the Minister or the Attorney General.  

It is perhaps useful to examine the wording of s.43 further.  It provides for the existence of two circumstances before the Commissioner may endorse the warrant.  The first of these relates to the provisions of the warrant itself, and is a factual requirement.  It does not involve any function of the Commissioner.  The second is that:-

“On production of the warrant to he Commissioner of the Garda Siochana it appears to the Commissioner that the person named or described therein may be found in the State.”

This does involve a determination on the part of the Commissioner, but presumably on information supplied to him by members of the extradition section of the gardaí.  The first condition does not require the warrant ever to have been seen by the Commissioner, but the second condition would appear to require physical production of the warrant to him, as he is required to make a determination in relation to “the person named or described therein”.  I do not think that this provision could be satisfied by an officer of the extradition section who does not come within the definition of “the Commissioner” making this determination, and therefore the use of the word “production” in s.43 appears to me clearly to mean production to the Commissioner in person.  

I am reinforced in this argument by the fact that s.42 expressly extends the definition of “Commissioner” to a Deputy Commissioner and to an Assistant Commissioner only.  If it had been intended to extend this any further, I have no doubt that the section would have said so.  Accordingly, I am satisfied that, as s.43 requires personal production to the Commissioner, it necessarily follows that s.50 of the 2003 Act, where it refers to production to the Commissioner for the purposes of s.43, must also refer to personal production to the Commissioner. 

In deference to the Respondent, if feel I should also deal briefly with his submission that regard must be had to the Framework Decision of 13th June 2002, as the purpose of the European Arrest Warrant Act 2003 was to give effect to this decision.  Article 32 of the Framework Decision, under the heading “Transitional Provision” provides:-

“Extradition requests received before 1st January 2004 will continue to be governed by existing instruments relating to extradition.  Requests received after that date will be governed by the rules adopted by member states pursuant to this framework decision.”

It is interesting to note that the word used in this Article is “received”.  There is no doubt that the warrants in the present case which would constitute the extradition requests were received in this State before 1st January 2004.  I was a little concerned that the reference to “existing instruments relating to extradition” was to the instruments that were in force at the time the extradition request was received, which of course in the present case would be the Extradition Act 1965 as amended, and that provisions coming into force subsequent to the receipt of the extradition request would not be an “existing instrument”.  However, on reflection I consider that the words “will continue to be governed” implies that the instruments referred to are those existing from time to time after the receipt of the request, and is not limited to those which were in force when the request was received.

Accordingly, I would allow this appeal.