In suggesting that this Court should not hesitate to find the underlying warrant dated 16 th December 2003 to be void, and therefore also the European arrest warrant dated 21 st June 2004, Mr Kelly has sought urge the judgment of McLoughlin J. in State (Hully) v. Hynes 100 I.L.T.R 145 upon the Court. That was a case in which allegations were made by the prosecutor in habeas corpus proceedings that the English warrant which was backed here and on foot of the prosecutor had been arrested had been fraudulently obtained. It appears that the warrant was backed here on the basis that the offence set out therein was an ordinary criminal offence, and not a revenue offence, the latter being a category of offence which this State (and the United Kingdom) would not act to enforce. The question raised was if the warrant in that form had been obtained by a "trick", as it were by concealing the reality that it was a revenue offence, then the endorsement of it was also a trick, and would fatally infect everything which followed. McLoughlin J. states at page 174:
Mr Kelly relies on the following passage which appears earlier on page 174:
If there was deception in the obtaining of that warrant, clearly the effect was to try and achieve the extradition of someone who would otherwise be entitled not to be extradited on the well accepted basis that extradition would not in those days be ordered where the person was sought to face a revenue charge. Such an eventuality perpetrated by a fraud is one against which any person present in this State would be entitled to protection against the deprivation of his/her liberty.
That is a great distance from the situation from the present case, where due respect should be given to a judicial act of another sovereign state. There is no suggestion or hint of fraud or underhandedness in the manner in which the European arrest warrant in this case was obtained in the United Kingdom, or the warrant on which it is based, namely that dated the 16 th December 2003. The latter was a perfectly correctly and properly obtained warrant for the arrest of the applicant, so that it could be transmitted to this jurisdiction to be backed in the way then pertaining (or so it was thought), so that it could thereafter be executed here by An Garda Siochana. What happened simply was, as in the O'Rourke case, that it had not been "produced" to the Commissioner prior to the 1 st January 2004, and could not thereafter operate as a warrant for the purpose of Part III of the 1965 Act , since the latter had been repealed in respect of such a warrant by the 2003 Act, and replaced by the procedures provided for by that Act for a European arrest warrant. An English warrant is a judicial instrument in that jurisdiction having full power and effect there. When it arrived in this jurisdiction under the 1965 Act procedures it was lifeless, empty and, one could say, "void", as far as having any effect in this jurisdiction, until life is breathed into it here by a proper endorsement under Part III. Any action on foot of it prior to that would be "not lawful" and it would not have been rendered a lawful document here until such life had been properly breathed into it. This is the sense, as I see it, and I say this with all possible and due respect to the already clear language of the judgment of Denham J. in O'Rourke, in which the warrants in O'Rourke are stated to be "void" and "not lawful". They had not had that necessary life breathed into them here in order to make them lawful and operative here. They remained lawful as far as their efficacy in the United Kingdom is concerned.
There can be no question but that if, on any date subsequent to the Supreme Court decision in O'Rourke the applicant in this case had set foot in the United Kingdom he could have been validly arrested on foot of the warrant dated 16 th December 2003. It remained valid I am sure as far as the UK authorities are concerned, and they therefore based the issue of the European arrest warrant on it. Alongside that reality from the UK perspective, sits the judgment of Denham J. in O'Rourke in which she has described the warrants therein (and, by extension, that in the present case) as "void" and "not lawful".
However, it must in my view, and of course I say this with all the respect due to the learned judge's judgment, be the case that the learned judge cannot have intended to express such a view in a way which impugned and condemned the inherent integrity of the warrant as a warrant in the United Kingdom, other than in the context of it being a warrant under or for the purposes of the repealed Part III of the 1965 Act. In other words, the voidness and unlawfulness was as an endorsed warrant under Part III of 1965 Act so that any arrest on foot of it could not be lawful.
The Courts of one sovereign state refrain from attempting to declare unlawful in a judicial review sense the actions of an administrative body in another sovereign state. Similarly they will refrain from doing so in respect of an order made by the court of such a state. This results from the respect which the Courts of one State hold for those of the other - the comity of Courts, and as part of the comity of nations, a principal referred to by Denham J. herself in Attorney General v. Parke unreported , Supreme Court, 6 th December 2004, when, referring to the procedure for extradition, she stated:
That comity, seen in the mutual recognition of the judicial instruments of Member States and spirit of mutual co-operation and trust between Member States, underlies the arrangements agreed upon by the European Council on the 13 th June 2002 in the Framework Decision which was given effect to by the 2003 Act. It would only be in most exceptional circumstances of manifest bad faith giving rise to a breach of a fundamental right of a person sought that this Court could consider not recognising the inherent integrity of a warrant from a Member State such as in the present case, as forming the basis of a European arrest warrant. As I am at pains to point out, the warrants in O'Rourke, were unlawful and void as warrants for the arrest of the person under Part III of the 1965 Act because that Part had been repealed at the relevant time of endorsement.
The principal of judicial restraint in relation to the administrative acts of another sovereign was touched upon by McGuinness J. in Adams v. The Director of Public Prosecutions [2001] 1 IR 47 at page 54 when she stated in relation to the prospect of an Irish Court quashing the certificate of the British Home Secretary:
In Buttes Gas and Oil Co v. Hammer and another (No.2) [1981] 3 All E.R. 616, Lord Wilberforce stated at page 628:
In the American Supreme Court, Chief Justice Fuller stated in Underhill v. Hernandez [1897] 168 US 250:
Oetjen v. Central Leather Co [1918] 246 US 297 is another case where at 304 the judgment of the U.S. Supreme Court stated:
These cases refer to administrative acts, rather than purely judicial acts, but the principle must be equally applicable, I suggest.
Article (10) of the Framework Decision refers to high level of confidence between Member States:
I believe that a close and careful reading of the relevant passages of the judgment of Denham J. in O'Rourke makes it clear that the illegality and voidness of the warrants in that case was solely in the context of them being endorsed warrants pursuant to Part III of the 1965 Act, since that Part had been repealed at the relevant time, and that their validity as UK warrants was not at issue - hence the inescapable conclusion that if the person set foot in the UK at any later date he undoubtedly could have been arrested on foot of them, and no pronouncement of unlawfulness or voidness in this jurisdiction would have interfered I any way with that process. Hence also the learned judge's remark in conclusion that "it remains open to the relevant authorities to consider proceeding under the Act of 2003" . That remark is applicable also to the present case, where the authorities in the United Kingdom have proceeded under the 2003 Act and have issued a European arrest warrant. It is that warrant and not the warrant from Bow Street Magistrates Court on foot of which the applicant was arrested following the endorsement of the European arrest warrant (and not the Bow Street Court's warrant). This Court has no basis on which it could be entitled to look behind the Bow Street warrant on which the European arrest warrant is based.
Section 12(8) of the 2003 Act provides as follows:
Section 10 of the Act provides:
The applicant has been arrested on foot of a European arrest warrant properly endorsed in this State for execution, and is detained on foot of an order of this Court, having been brought before this Court following arrest, as required by s. 13(5) of the 2003 Act. The fact that the Irish authorities had proceeded under Part III in January 2004 and, having done so withdrew the application for an order under s.47 of the 1965 Act following the decision in O'Rourke, has not prevented the United Kingdom authorities from proceeding again against the applicant under the 2003 Act, albeit on a European arrest warrant based on the same warrant dated 16 th December 2003 from Bow Street Magistrates Court.
In these circumstances I see nothing unlawful about the detention of the applicant, and I refuse the relief sought.
Approved: Peart J.