Farrell v Superintendent of Milford Garda Station & Anor, Maguire v Superintendent of Letterkenny Garda Station & Anor [2019] IECA 278 (01 November 2019)

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	Irish Court of Appeal
You are here: BAILII >> Databases >> Irish Court of Appeal >> Farrell v Superintendent of Milford Garda Station & Anor, Maguire v Superintendent of Letterkenny Garda Station & Anor [2019] IECA 278 (01 November 2019) URL: http://www.bailii.org/ie/cases/IECA/2019/2019IECA278.html Cite as: [2019] IECA 278

JUDGMENT of the Court delivered on the 1st day of November 2019 by Ms. Justice

1. These two appeals have the same factual background and raise the same issues so they

may be conveniently dealt with in the same judgment. The appellants seek to appeal

against judgments and orders of the High Court (Donnelly J.) dated 11th February 2019

2. The relevant factual background is set out fully in the High Court judgment, but the

salient facts are as follows: The appellants were arrested on March 23rd 2017 on foot of a

European Arrest Warrant (EAW) issued for the purposes of prosecuting them for the

alleged offences of attempted murder of a member of the PSNI and possession of

3. The EAW states that these offences are alleged to have been committed on 18th June

2015 in Northern Ireland. It further alleges that the perpetrators of the offences were

disturbed at the scene and that two vehicles were observed by the police in Northern

Ireland travelling away from the scene at high speed. Later that same night the

appellants were arrested in Killygordon, Co. Donegal pursuant to s.30 of the Offences

Against the State Act, 1939 on suspicion of membership of an unlawful organisation. Mr

Maguire was taken to Letterkenny Garda Station and Mr Farrell was taken to Milford

Garda Station. The appellants’ clothing was seized, and photographs, fingerprints and

buccal swabs were taken. The appellants were interviewed and later released without

4. On 10th March 2017, the European Arrest Warrant was issued by an issuing judicial

authority of the United Kingdom of Great Britain and Northern Ireland and the appellants

were subsequently arrested. The proceedings under appeal came about as the appellants

sought disclosure of information gathered during their detention on 18th June 2015

including, inter alia, details of any samples taken or items seized, copies of statements

made during the investigation and any audio or video recordings made in the course of

detention, in order to advance their opposition to the EAW proceedings. It is the

appellants’ case that the Northern Ireland prosecution is predicated, at least in part, on

5. Following a refusal to grant this information, the appellants sought leave to proceed by

way of judicial review on July 25th, 2017. Leave was granted and the hearing proceeded

in December 2018. The appellants sought the following reliefs before the High Court:-

(i) An order of mandamus requiring the first respondent to reply to the applicant’s

request for information in relation to and arising from his detention in Milford Garda

Station/Letterkenny Garda Station on 18th/19th June, 2015 and to furnish him with

(ii) An order of mandamus requiring the first respondent to provide the information

requested by the applicant pursuant to the provisions of EU Directive 13/2012.

6. In her written judgment of 11th February 2019, Donnelly J. refused the reliefs sought by

7. The trial judge considered the submissions of the appellants under three headings,

8. The primary argument on behalf of the appellants is that the evidence garnered in this

jurisdiction during the appellants’ detention pursuant to s.30 of the Offences Against the

State Act, 1939 will be used, at least in part, at trial in Northern Ireland. The appellants

contend that only the courts in this jurisdiction can protect their constitutional rights.

While no reference is made to a violation of any specific constitutional right during the

detention under s.30, the argument is made that in order to vindicate their constitutional

rights, disclosure of the information is essential. The appellants assert that the

information sought may permit issues to be raised concerning the arrest and detention

pursuant to s.30 in the context of objection to surrender on foot of the EAW.

9. The appellants assert an entitlement to the information sought as a matter of fair

procedures and moreover, contend that withholding the information sought occasions a

breach of Articles 6 and 7 of Directive 2012/13/EU of 22nd May 2012 regarding the Right

10. Mr Farrell contends that certain of the materials about which information was sought were

transferred to the requesting State following a mutual assistance request pursuant to the

European Convention on Mutual Assistance in Criminal Matters 1959. These items were

furnished in the course of the judicial review proceedings without notice to the appellant

who claims that such transfer was inappropriate in the circumstances.

11. In short, the appellants’ claim is that they are entitled to receive all the information

sought for the purposes of opposing surrender under the European Arrest Warrant.

12. The trial judge noted that a discrete argument arose regarding the recordings of interview

sought by the appellants. This concerned section 56 of the Criminal Justice Act, 2007

“(1) Where a person is before a court charged with an offence, a copy of any recording

of the questioning of the person by a member of the Garda Síochána while he or

she was detained in a Garda Síochána station, or such questioning elsewhere, in

connection with the investigation of the offence shall be given to the person or his

or her legal representative only if the court so directs and subject to such

(2) A recording referred to in subsection (1) of the questioning of a person shall not be

given to the person by the Garda Síochána except in accordance with a direction or

order of a court made under that subsection or otherwise and Regulation 16 of the

Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997

13. The trial judge was satisfied that access to the recordings of interview could only be

granted in accordance with this section and therefore the Gardaí were not legally entitled

14. Secondly, on this discrete issue, the Court found that s.56(1) only applies to a person

before a court charged with an offence; the appellants were not in such a position and

thirdly, the judge found that the appellants had no entitlement as of right to demand the

recordings. She was satisfied that if a request was made in the course of the EAW

15. She concluded that in the judicial review proceedings the applicants were not entitled to

an order of mandamus for access to the recordings as there was no duty on the

16. In relation to the other information sought, the trial judge accepted the submission of the

respondent that when seeking an order of mandamus, the Court must apply the general

‘As stated in Civil Proceedings and the State (2nd Ed. Thompson Round Hall, Collins

& O’Reilly 2004) at para. 438 “mandamus lies to command the performance by a

public body of a legal duty of a public nature”. The authors went on to state that

“an applicant must show that there was an explicit and unambiguous duty imposed

17. The judge did not accept that Larkin v. O’Dea [1995] 2 IR 485 could be relied upon by the

appellants because the appellants’ case was strikingly different. Donnelly J. accepted that

Larkin v. O’Dea [1995] 2 IR 485 is authority for the proposition that there is a duty on the

courts to protect and vindicate constitutional rights by refusing extradition where

extradition would violate those rights but in the present case the appellants’ arguments

were entirely speculative as they failed to establish, at a minimum, a real risk that their

constitutional rights would be violated if they were surrendered. The trial judge concluded

“EAW proceedings are designed, under the terms of the Framework Decision on the

European arrest warrant to be a simplified form of extradition between Member

States of the European Union. The 2003 Act sets out a list of grounds upon which

surrender maybe refused. Included in those grounds under s. 37 are where the

surrender would constitute a contravention of any provision of the Constitution.

Surrender has been prohibited where to do so would place a person at real risk of a

breach of a provision of the European Convention and Human Rights or indeed of

the Constitution. Examples of these arise where claims of violations of rights under

Article 3 of the Convention or Article 40 of the Constitution with regard to the right

not to be subjected inhuman or degrading treatment. A requested person is entitled

to submit in the course of the EAW proceedings that there is such a real risk. The

rules of Superior Courts provide for discovery to be made in the course of the

European Arrest Warrant case. In an appropriate case, discovery could be ordered.

It is striking that in the present EAW proceedings, the respondent has not even

pleaded any particular or specific breach of s. 37 concerning a real risk that his

extradition would violate a provision of the Constitution arising from his arrest and

52. Section 37 therefore provides a basis for this applicant to claim that his surrender is

violated on the basis that to do so would violate a provision of the Constitution. The

Supreme Court dealt with the proofs requires by, and the procedural implications

of, the provisions of s. 37 of the Act of 2003 in the case of Minister for Justice v

Rettinger [2010] IESC 45. The Supreme Court (Denham J as she then was) set out

a number of principles in the assessment of whether such a breach has occurred. Of

particular relevance are the following: that the courts should examine whether

there is a real risk in a rigorous fashion, that a burden rests with the applicant to

adduce evidence capable of proving that that there are substantial grounds for

believing that if he or she were returned to the requesting country, he or she would

be exposed to the real risk of being subjected to treatment in breach of the

Convention, that the mere possibility of (a breach of a right) is not sufficient to

establish a case. Those principles have been applied in cases where breaches of

constitutional rights are claimed (see A.G. v Marques [2015] IEHC 798).

53. If the applicant’s contention that he must have this information in advance of

formulating points of objection to the EAW proceedings is correct, this would mean

that he is not bound by the provisions of s. 37 of the European Arrest Warrant Act

of 2003 as amended in advancing his case against surrender. Thus the principles

for the testing of s. 37 claims as set out in Rettinger would no longer apply to him,

merely because he claimed that information might be forthcoming to assist him in

formulating such a claim. That would mean that there would no longer be an onus

on him as a requested person to adduce cogent evidence that would raise a real

risk of a breach of fundamental rights. This Court does not accept that is the law.

54. On the contrary, this Court is satisfied that the applicant’s claim as to a breach of

his rights is entirely speculative and indeed is entirely unrelated to any particular

claim that his surrender is prohibited in accordance with the Act of 2003. This claim

of entitlement to be given information for the purpose of advancing a case he might

possibly be able to make after considering that information is one that has no basis

in the provisions of the Act of 2003. Given that these judicial proceedings are

directed towards gaining information for the apparently purpose of defending the

application for surrender in accordance with the provisions of the Act of 2003, the

said Act of 2003 provides no legal foundation for such a claim. His claims of breach

of due process or equality of arms have been advanced in a legal vacuum, which

takes no account of the requirements (and indeed protections) of the procedures

set out for the determination of applications for surrender under the provisions of

55. Leaving aside his claims under the EU Directive 13/2012, the Court can find no

explicit and unambiguous duty on the respondents to provide him with that

material in advance of arguing his EAW case. To hold that there is an entitlement to

obtain information about potential evidence obtained in this jurisdiction, outside of

and prior to the surrender proceedings taking their course, would amount to an

unwarranted interference with the simplified procedures set out in the European

Arrest Warrant Act, 2003. It would also permit a requested person to delay and

obstruct the EAW proceedings without putting forward any legal or factual basis as

to why his surrender should be prohibited. He has an entitlement to object to

surrender on the grounds set out in the Act, but he must bring himself within the

parameters of the prohibited grounds. His claims, if any, of breach of rights can be

dealt with procedurally and substantively within the context of the surrender

18. Donnelly J. considered the appellants’ submission that there was an entitlement to the

information sought under EU Directive 13/2012 (“the Directive”). In refusing to accept the

appellants’ submission that Minister for Justice & Equality v. EP [2015] IEHC 662 could be

distinguished on the basis that the present proceedings involved material in the

possession of this State rather than the requesting State, the trial judge held as follows:-

“In the view of this Court such an argument must be rejected. The provisions of the

Directive must apply to all arrests under European Arrest Warrants. They cannot be

dependent upon a consideration such as whether there is a link to the offence in

the requesting state. The Framework Decision on European arrests warrants

contemplate the possibility of extraterritorial offences and therefore the possibility

that a person may be wanted by a requesting Member State for an offence

physically committed in the requested Member State. Or, as here, where there is an

alleged offence in the requesting Member State but a subsequent arrest and

detention in the issuing Member State. The Directive itself makes no distinction

between an arrest on an EAW for an alleged offence for which the requested person

had already been arrested and questioned in the executing State. There is therefore

no basis for distinguishing the case of Minister for Justice v E.P.

62. Furthermore, it is clear that there are no criminal proceedings in being in this

jurisdiction. In his grounds upon which relief is sought the applicant stated that he

could not enforce disclosure of the information he sought in Northern Ireland and

will thus be deprived of factual matters related to his defence. The applicant has

not put any evidence before the Court to substantiate that ground. Indeed, at oral

hearing it was conceded that his case was not about the lack of due process in

Northern Ireland, but only about the courts being able to protect his constitutional

rights in this jurisdiction. Furthermore, the fact that the items of evidence about

which information was sought were handed to the Northern Ireland police pursuant

to a mutual assistance request, would also appear to have changed the factual

position i.e. they would be present in Northern Ireland and by that fact would be

physically available there for examination. In the circumstances, there is no

evidence before this Court that his rights under the Directive will not be available to

him in the requesting State should he be surrendered on foot of the European

63. In this jurisdiction, on his arrest on the EAW, the applicant received his rights to

information which included, inter alia, a copy of s. 15 of the European Arrest

Warrant Act, 2015. The applicant has made no specific complaints about the lack of

information provided to him on arrest under the European Arrest Warrant, his

complaint in this regard has been directed towards the information concerning

19. Finally, the trial judge considered the submission that the transfer of evidence pursuant to

the mutual assistance requests to the Police Service of Northern Ireland amounted to an

unconstitutional interference with the proceedings and an interference with the

supervisory jurisdiction of the Court. The trial judge rejected the appellants’ reliance on

Buckley v. Attorney General [1950] I.R. 67 and State (Quinn) v. Ryan [1965] I.R. 110.

and stated that there could be no similarity between those cases and the facts at hand.

“72. In the present case, the transfer of the items to the Police Service of Northern

Ireland was carried out purportedly in accordance with existing legislation. The

Criminal Justice (Mutual Assistance) Act, 2008 as amended provides for, inter alia,

material already in the custody of An Garda Síochána to be transmitted to a

requesting authority of a designated state on request and provided certain

conditions are met. The transfers have not been challenged in these or other

proceedings as being unlawful or invalid. The Court is entitled to accept the

evidence of the Inspector that the transfer was made pursuant to the provisions of

73. Knowledge of the existence of those mutual assistance provisions is imputed to the

population at large. In particular, however, the Court is entitled to have regard to

the fact that the applicant’s solicitor practices within the field of criminal law and

would be expected to have knowledge of the existence of those provisions. Despite

the existence of these provisions, no application was made for any interim or

interlocutory order which would prevent any of this material from being sent abroad

74. In the absence of any injunction against either the Minister or the Gardaí, those

public bodies are entitled to proceed to carry out their functions in accordance with

law. It is not accepted, that the mere fact that proceedings are in being is sufficient

to interfere with the right, and indeed the duty, of the state authorities to abide by

their commitments under international agreements and/or national legislation. If it

were otherwise, the mere issuing of proceedings and in the context of judicial

review proceedings such as the present, the fact that one has persuaded a judge of

the High Court that there is an arguable case, would amount of itself to a stay on

the carrying out of other duties in accordance with law. No authority was provided

by the applicant to substantiate such an argument. In light of the provision in law,

including in respect of judicial review proceedings, for the granting of

interim/interlocutory injunctions, I am satisfied that there is no such legal

75. Moreover, in the present case, the nature and extent of the interference with the

supervisory jurisdiction of this Court that is complained of, has not been clearly

articulated. In particular, there has been no real attempt to explain how the

information that was required, namely the copy of the custody record, copies of

statements made, details of any samples taken or items ceased and any video or

audio recordings, would be affected by the transfer to Northern Ireland.

76. In effect, what this applicant actually sought was information about these items, to

allow him construct some sort of opposition to the European Arrest Warrant

proceedings. Even if it could be construed that what he had sought was

examination of those items, it is not clear how examination of those items would

demonstrate that a constitutional right had been violated. It is not a res ipsa

loquitor situation, there must be at least some basis for showing that the alleged

interference, i.e. actual loss of the opportunity for physical examination could

demonstrate a breach of a constitutional right. Examination of that kind of material

is much more likely to be required for the purpose of defending a criminal trial

rather than for the purpose of articulating a constitutional argument. Suffice to say

that no such constitutional argument was identified and/or substantiated.”

20. The fundamental issue to be decided on appeal is whether the appellants are entitled to

21. The appellants make a number of similar arguments regarding, inter alia, their

entitlement to the materials and information as a matter of fair procedures and under the

Directive, the potential infringement of the right to silence and the entitlement to

recordings under s.56 of the Criminal Justice Act 2007. In order to avoid repetition, these

22. It is submitted that the trial judge erred in concluding that the recordings of interviews

could not be the subject of an order under s. 56 in the context of judicial review

proceedings. The appellant submits that the trial judge erred in otherwise not engaging

with the appellant’s request made in the course of the proceedings to order the disclosure

23. The appellant submits that the Directive provides the right to be informed as to the

contents of the EAW and this right must include the right to examine documentation

gathered in the course of arrest in the jurisdiction when the fact of that arrest is relied

upon as part of the rationale upon which surrender is sought in the warrant. The appellant

submits that without access to the information sought, the right to be informed about the

24. It is submitted that a challenge to the lawfulness of arrest or detention in this jurisdiction

in the context of the contents of the EAW requires sight of and access to the information

requested by the appellant in the judicial review proceedings. On that basis the

appellant’s request for information is clearly distinguishable from that of the applicant in

Minister for Justice & Equality v. EP [2015] IEHC 662 who sought information from the

requesting State. In the appellant’s case the requesting State did not have the

information when he made the request. The requesting State did not have the information

when he sought leave to proceed by way of judicial review. The requesting State took

possession of the information in the course of the judicial review proceedings without

notice to the appellant or the Court. The appellant seeks information regarding the arrest

referred to in the EAW in order to assert the protections contained in the Constitution and

in the provisions of Section 30 of the Offences Against the State Act. Where such a

challenge can only be effective within this jurisdiction, he clearly requires the

documentation requested and as provided for in his right to be informed about the

contents of the warrant as provided for in the Directive and as set out in the model letter

provided at Annex II. He asserts that it was inappropriate to transfer the material without

25. The appellant submits that fundamental protections contained within s. 30 of the 1939

Act, including his right to remain silent, may be at issue if he is surrendered for

prosecution in Northern Ireland. He refers to DPP v. Quilligan (No. 3) [1993] 2 I.R. 305

and to the judgment in R v. McVeigh [2019] NICC 8 wherein Sean McVeigh was tried and

convicted for the same offences for which the appellant is now sought. He submits that

the Belfast Crown Court did not give effect to the right of Mr McVeigh to remain silent in

that it appears to have drawn inferences from his silence. He submits that he needs

access to the materials sought in order to ascertain the extent to which he was warned

26. The appellant summarises the specific issues for this Court as being: (i) whether there is

an obligation on state bodies to reply and/or to engage with reasonable requests and to

give reasons for any refusal; (ii) in the event of a failure to so reply, can a citizen seek to

compel a reply; and (iii) is a citizen entitled to seek information in relation to his arrest

and detention in this state where that is germane to offences for which his surrender is

27. The appellant submits that the High Court judge misconstrued the application before her

and erred in refusing the application on the basis of, inter alia, the inadequate pleading of

The appellant submits that the High Court judge erred in dismissing the appellant’s claim

for lack of specificity regarding the violation of his constitutional rights. The appellant

submits that the right to the information sought must necessarily be a freestanding right

because if the appellant is obliged to present evidence of unconstitutionality before the

duty of the Court to “defend and vindicate” is triggered then it must follow that he has an

28. The appellant submits that he cannot properly be deprived of the opportunity to challenge

his surrender by reason of the respondent’s reluctance to provide him with pertinent

information secured in this State. He was arrested and detained here, and it is in this

State that the material was generated. In the circumstances the respondents’ unreasoned

29. As a preliminary point the respondent submits that the trial judge was correct in her

assertion that the appellants’ claims are entirely speculative. The majority of the

appellants’ arguments are predicated on a claimed entitlement to investigate potential

infringement of their constitutional rights during their detention in order to ground a

challenge to the lawfulness of their arrest or detention but no basis for this challenge has

been identified in these proceedings or in the proceedings in relation the EAW. It is

submitted that the height of Mr Farrell’s claim is a reference in his affidavit of 18th April

2018 that access to the information sought “may permit me to raise issues concerning my

Section 30 arrest and detention in the European Arrest Warrant proceedings.” Mr Maguire

is in a similar position, referring only to an “intended reliance.” No actual argument has

been made by the appellants and no breach has been identified, despite the fact that the

appellants are the persons best placed to identify whether their rights have been in any

30. In the absence of any real basis for seeking the information, there is no legal entitlement

31. The respondent submits that Donnelly J. was correct in her interpretation of section 56

cited above. It does not provide an entitlement as of right to demand a recording from an

Garda Síochána and it is submitted that the appellant has failed to engage with the

finding of the Court that even in the context of the criminal proceedings there would be

no entitlement to disclosure of such and therefore since there is no duty on the

respondent to provide the recordings, an order of mandamus cannot be obtained.

32. The respondent submits that the appellant has failed to establish whether the Directive

applies at all in his situation given that the appellant is no longer the subject of a criminal

investigation in this jurisdiction. The respondent refers to Art. 2 which provides as

“This Directive applies from the time persons are made aware by the competent

authorities of a Member State that they are suspected or accused of having

committed a criminal offence until the conclusion of the proceedings, which is

understood to mean the final determination of the question whether the suspect or

accused person has committed the criminal offence, including, where applicable,

The temporal limits of the Directive are clearly shown here and therefore the only rights

“1. Member States shall ensure that persons who are arrested for the purpose of the

execution of a European Arrest Warrant are provided promptly with an appropriate

Letter of Rights containing information on their rights according to the law

implementing Framework Decision 2002/584/JHA in the executing Member State.

2. The Letter of Rights shall be drafted in simple and accessible language. An

33. In addition, it is submitted that the EAWs for both appellants outline summaries of the

allegations against them for the purposes of s.11 of the European Arrest Warrant Act,

2003 and the appellants are, therefore, well aware of the nature of the allegations faced

in the issuing State if they are surrendered. The respondent contends that the appellants’

rights under the Directive, such as they are under Article 5, are protected and upheld by

the relevant provisions of the European Arrest Warrant Act, 2003 and in the information

provided in the EAWs issued against both appellants. Their rights under the Directive start

34. It is submitted that the interpretation in Minister for Justice & Equality v. EP [2015] IEHC 662

is in line with the simplified system for surrender envisaged by the EAW framework

and accords with the wording of the Directive. Therefore, Donnelly J. was correct in

holding that the there is no distinction between arrests under EAW on the basis suggested

35. The respondent submits that the information sought by the appellant goes beyond the

“information about the content” of the EAW and extends to information to which the

appellants have no right under the Directive. As such, there is no clear and unambiguous

duty on the Garda authorities and their claim for mandamus must fail.

36. The respondent submits that the case of R v. McVeigh [2019] NICC 8 does not change the

nature of the current appeals. The respondent submits that the fact that adverse

inferences may or may not be drawn in the proceedings in Northern Ireland does not

support the appellants’ claim. This is particularly so when the case has not been made

that anything occurred which breached their right to silence and both appellants received

37. Finally, there is no argument that the appellants will not have access to the relevant

materials in the event that they come before the Northern Irish Court. It is submitted that

any issue of fairness of admissibility of the relevant evidence can be dealt with at that

38. In relation to the transfer of materials without notice, the respondent submits that it

cannot be asserted that the first respondent was incorrect in complying with a mutual

assistance request pursuant to the European Convention on Mutual Assistance in Criminal

Matters. The respondent submits that the actions of the first respondent were done

lawfully and on a statutory basis in the absence of an injunction.

39. The respondent submits that Mr Maguire’s claim to the information on the basis of

supporting his opposition to surrender in the EAW proceedings is without substance in the

same way of Mr Farrell and constitutes a mere fishing expedition in the hope that a point

40. The respondent submits that the questions raised by the appellant before this Court, can

all be answered in the negative. The respondent submits that there can be no obligation

on State bodies to engage with all requests and to give reasons for any refusal. While the

situation may be different where the person making the request has a statutory or legal

41. The respondent submits that the appellant’s lack of legal entitlement to the materials

sought undermines the appellant’s reliance on the principles of fair procedures, equality of

arms, the requirement to seek out and preserve evidence, and the duty of the courts to

42. The respondent submits that Donnelly J. was correct in holding that Larkin v. O’Dea

[1995] 2 IR 485 is not authority for the proposition that the appellants are entitled to the

information sought. The essential finding underpinning that decision-the breach of the

requested person’s rights- is absent on the facts of this case.

43. Like Mr Farrell, the respondent submits that Mr Maguire cannot successfully argue an

entitlement to the materials sought in the absence of any reference to a violation of a

right. Both appellants received legal representation and no complaint has been made in a

44. The essence of the arguments advanced on behalf of the appellants is that each seek the

requested materials in order to assess whether their constitutional rights were breached

while detained pursuant to s.30 of the Offences Against the State Act, 1939. Should it

transpire that there was a breach, this would then be used in opposition to the EAW

45. Neither appellant has stated that any specific right has been breached. This has not been

addressed in the respective statements grounding the application for judicial review and

neither has there been any attempt to specify a violation of a constitutional right in the in

the EAW proceedings. On the contrary, each appellant has, albeit in different forms,

suggested that potentially they may rely on, or issues may be raised regarding their

arrest and detention under s.30 of the 1939 Act. In other words, each appellant hopes

something will turn up should they have the opportunity to assess the materials sought.

46. There is, however, no suggestion that any issues arose during the respective arrests or

detention, and, as a consequence, the only possible conclusion is that there may be some

unknown situation or event which transpired during the arrest and/or detention which

could give rise to an argument that there was a violation of the appellants’ constitutional

rights. This suggestion is entirely built on supposition and conjecture. Should there have

been even the merest suspicion of an issue in the course of arrest and detention, one

would have thought that such would be apparent to those in detention and/or to their

legal advisors. Moreover, Mr Farrell was represented by the same solicitor while in

47. In Mr Maguire’s case, he contends that the reason for his arrest was not properly

explained to him “at the time”. The trial judge observed that it was unclear if this meant

at the time of his arrest or at the time of detention. She then addresses the issue of

whether he was legally represented while in detention and concludes that as the appellant

never stated in the instant proceedings or in the EAW proceedings that he was

unrepresented, nor did he claim that he was not informed of his entitlement to legal

representation, she was satisfied that he had deliberately chosen not to raise any claim

that his constitutional right of access to a solicitor had been violated.

48. The fact that neither appellant has averred to or formulated, even in a tangential manner

in any proceedings, a breach of any constitutional right, serves to underline the

conclusion; that the foundation of the argument is entirely speculative and misconceived.

49. In my view, the High Court judge did not err in finding that the facts in both of the

present cases differed from those in Larkin v. O’Dea [1995] 2 IR 485. In that case, a

statement was obtained from applicant in circumstances where the District Court order

authorising his arrest was invalid. The High Court, and on appeal the Supreme Court,

found that were a court to allow the applicant’s extradition, in circumstances where

evidence gathered in violation of his constitutional rights would be relied on at trial, such

would amount to a failure to vindicate his constitutional rights.

50. In the present cases, the facts and the issues are quite different. Each appellant seeks

the information for the purpose of trying to demonstrate a breach of an unspecified

constitutional right which, if there was such a breach, evidence obtained as a result may

be tendered at trial in Northern Ireland. Thus, resulting in a failure to protect their

constitutional rights. Each contend that the Irish courts must determine whether there

has been a violation of their constitutional rights while in detention, as only an Irish court

51. The European Arrest Warrant Act 2003, s.37(1) provides that surrender should be refused

where the surrender would be incompatible with the State’s obligations under any

provision of the Convention, or the Protocols to the Convention or if surrender would

constitute a contravention of any provision of the Constitution. In other words, a court

may refuse surrender on the basis of a real risk that an individual’s fundamental rights

52. Neither appellant pleaded any specific breach of s.37 so as to give rise to a real risk that

his surrender would violate a provision of the Constitution. The trial judge referred to the

principles stated by Denham J. in the Minister for Justice v. Rettinger [2010] IESC 45

regarding the assessment of whether such a breach has occurred and in particular cited

“That the courts should examine whether there is a real risk in a rigorous fashion,

that a burden rests with the applicant to adduce evidence capable of proving that

there are substantial grounds for believing that if he or she were returned to the

requesting country, he or she would be exposed to the real risk of being subjected

to treatment in breach of the Convention, that the mere possibility of (a breach of a

53. The trial judge found that the appellants had failed to engage with those tests. She

concluded that there was no evidence of a breach of a constitutional right. As I have said,

the suggestion of a breach of a constitutional right was entirely speculative. There was

54. The purpose of seeking the materials was not in order to provide an evidential basis for

objection to surrender, but in the hope that some material or information would emerge

from the detention under s.30 which would lead to a possible objection on the basis of a

55. In circumstances where there is no evidential basis or indeed any claim of a breach of

either appellant’s constitutional or legal rights, the appellants’ claim is entirely

speculative. There has been no engagement with the tests stated in the Minister for

Justice v Rettinger regarding the assessment of whether a breach had occurred in terms

of s.37 of the 2003 Act, the breach of their rights is premised on speculation and is

unrelated to any specified claim that the surrender is precluded by virtue of s. 37 of the

2003 Act. There is no basis for suggestion that either appellant has a right to the material

under the 2003 Act in advance of the proceedings to formulate objections to the

56. I am satisfied that the trial judge was entirely correct in finding that the appellants had

not demonstrated that there was an explicit and unambiguous duty on the respondents to

provide the information to the appellants on the grounds of fair procedures in advance of

57. The appellants’ claim that the request for information is predicated upon obtaining

information to oppose the application for surrender is without foundation in terms of the

2003 Act and in terms of alleged breach of due process or of equality of arms.

I am wholly satisfied that the trial judge did not err in her findings on this issue.

58. The trial judge carefully scrutinised the provisions of s.56 of the Criminal Justice Act 2007

and it is clear that s.56(1) of the Act provides that a copy of the recording of interview

with an individual shall only be given to that individual or his legal advisors where a court

so directs. This is in circumstances where the person is before a court charged with an

offence. Therefore, the application for the recording can only be made in those particular

circumstances, which is entirely logical in my view. As the appellants did not satisfy the

requirements, the judge was correct in finding that there was no legal basis for the Gardaí

to make the recordings available. Indeed it would have been contrary to the statute to do

59. S.56(2) of the 2007 Act provides that a copy of the recording shall not be given to the

person, except where there is a court order for its provision in terms of s.56(1) of the Act.

I am satisfied that the trial judge was correct in interpreting subsection 2 in this manner.

60. Finally, in relation to s.56(2) the trial judge found that a court other than the court where

the person stands charged with an offence may order that the recording referred to in

s.56(1) be provided and she so found in light of the words in the subsection “or

otherwise”. She therefore was of the view that if a request were made in the course of

the EAW proceedings for the recordings, then that could be determined by the court

hearing those proceedings. However, it is quite clear from the section that there is no

entitlement as of right to be provided with the recordings and with this I agree.

61. The appellants rely on the Directive as conferring a right to the information sought. It is

contended that the failure to provide the information led to a breach of Articles 6 and 7 of

“This Directive lays down rules concerning the right to information of suspects or

accused persons, relating to their rights in criminal proceedings and to the

accusation against them. It also lays down rules concerning the right to information

of persons subject to a European Arrest Warrant relating to their rights.”.