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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> MJE -v- Mc Guigan [2011] IEHC 514 (09 December 2011) URL: http://www.bailii.org/ie/cases/IEHC/2011/H514.html Cite as: [2011] IEHC 514 |
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Judgment Title: MJE -v- Mc Guigan Composition of Court: Judgment by: Edwards J. Status of Judgment: Approved |
Neutral Citation Number: [2011] IEHC 514 THE HIGH COURT 2008 37 EXT BETWEEN: THE MINISTER FOR JUSTICE AND EQUALITY APPLICANT AND
BRENDAN MCGUIGAN RESPONDENT JUDGMENT of Mr. Justice Edwards delivered the 9th day of December, 2011.
Introduction The respondent does not consent to his surrender to the issuing state and has filed points of objection in which he raises a variety of legal issues, including (but not confined to) the contention that the Court is prohibited by virtue of s. 37 of the Act of 2003 from surrendering him on the basis that, if surrendered, the respondent will face breach of certain of his constitutional and human rights, including his right to bodily integrity, his right to human dignity, and his right to receive a fair trial. The respondent bases his contentions in this regard on (a) alleged poor conditions and ill-treatment of detainees in Lithuanian places of detention, and (b) alleged fundamental defects in the criminal justice system in the requesting state. In support of these allegations, the respondent filed three affidavits sworn on 28th January, 2009, 2nd October, 2009 and 18th May, 2011, respectively, by a Lithuanian lawyer, Ms. Ingrieda Botyriene. Four additional affidavits affirmed on 6th November, 2008, 4th February, 2009, 20th May, 2011 and 18th October, 2011, respectively, by an academic lawyer and professor of criminal justice, Professor Rod Morgan of the University of Bristol in the United Kingdom, were filed in support of the respondent’s allegations.
The applicant relies upon:
b. an affidavit sworn on 4th December, 2008 by a Mr. Anthony Doyle, an official in the office of the applicant, exhibiting, inter alia, certain additional information supplied by the Prosecutor General’s Office of the Republic of Lithuania; c. further additional information supplied by the Prosecutor General’s Office of the Republic of Lithuania dated 13th January, 2009; d. an affidavit sworn on 11th February, 2010 by a Mr. John Davis, another official in the office of the applicant, exhibiting yet further additional information supplied by the Prosecutor General’s Office of the Republic of Lithuania, and; e. further additional information supplied by the Prosecutor General’s Office of the Republic of Lithuania dated 30th September, 2011
The matter comes before the Court at this stage in the context of a motion filed by the respondent on 26th November, 2009, which originally sought:
2. Such further directions as the Court may require; 3. An order providing for the costs of this application.” At the commencement of the hearing on 25th October, 2011, the respondent sought the further leave of the Court to substitute an amended Notice of Motion dated 24th October, 2011 for the Notice of Motion originally filed. The Court, albeit with some reluctance, permitted the respondent to make the proposed substitution in the interests of justice.
The amended Notice of Motion dated 24th October, 2011 (with amendments in italics) seeks:
2. An order under s. 20(4) of the European Arrest Warrant Act, 2003 providing that oral evidence be heard in the application herein including in respect of any material or evidence relied on by the applicant to challenge the evidence of the said deponents. 3. Such further directions as the Court may require; 4. An order providing for the costs of this application.”
4. I say and believe that since it appears that essential evidence relied on by the respondent is denied or challenged or undermined by material put forward by the applicant, in the circumstances of this case the interests of justice require that oral evidence be heard.” The Respondent’s Motion However, before doing so it is desirable to set out the relevant statutory provisions governing the adduction of evidence, and in particular the adduction of oral evidence, in proceedings under the Act of 2003. The Relevant Statutory Provisions
(a) by the deponent in a place other than the State, and (b) in the presence of a person duly authorised under the law of the place concerned to attest to the swearing of such a statement by a deponent,
In support of the respondent’s request for the leave of the Court to adduce oral evidence from his own deponents, Mr. Giollaíosa Ó Lideadha S.C., submitted to the Court that in light of the evidential burden borne by the respondent, as set out in the judgments of the Supreme Court in Minister for Justice, Equality and Law Reform v Rettinger [2010] IESC 45, the interests of justice require it.
In response, Mr. Maurice Collins S.C., representing the applicant, submitted that the respondent has failed to demonstrate why the Court should depart from the normal rule and how the interests of justice require oral evidence from Ms. Botyriene or, for that matter, Professor Morgan. It was submitted that their evidence is already set out in a number of detailed affidavits filed on behalf of the respondent herein which will be available to the Court. No limitation has been placed at any stage on the number of affidavits the respondent was permitted to deliver from those persons or as to the range of issues they could address and it is not clear what, if any, additional evidence they are in a position to offer or why such additional evidence should not be provided in affidavit form in the ordinary way.
It was further submitted that, in considering an application seeking to adduce oral evidence, this Court ought to adopt a restrictive approach. It was urged that it is clear from the terms of ss. 20(3) and (4) that where a respondent seeks to put material before a Court in support of an objection to surrender, then the general rule is that this should be done by way of affidavit. That is, of course, consistent with the underlying objective of expedition as expressed in recital (5) and Article 17 of the Framework Decision (Council Framework Decision of 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures between Member States (2002/584/JHA)), as well as s. 16 of the Act of 2003 and in particular ss. 16(10) and (11). It was submitted that it is for the respondent here to demonstrate why the Court should depart from this general rule. The respondent has failed to do so Decision on Issue 1 The critical words are “if it considers that the interests of justice so require.” A party seeking to adduce oral evidence must satisfy the Court that the interests of justice require that the normal rule should be departed from. In the Court’s view, the party seeking to adduce oral evidence needs to identify something inherent in the nature of the evidence itself such that the Court would benefit from receiving that evidence orally rather than in written form. In the Court’s view, what requires to be demonstrated is the existence of a serious conflict of evidence, typically as to a matter of fact, which remains unresolved despite being engaged with by the parties in the course of the written evidence submitted, and which the Court could only resolve by hearing oral evidence. So, for example, if a deponent was asserting a critical matter of fact, which was seriously disputed, and about which there was no supportive or corroborative evidence, it might be necessary for the Court to hear oral evidence in the interests of justice. The establishment, or non-establishment as the case might be, of the facts in dispute would be likely in such circumstances to depend upon the Court’s view of the credibility and reliability of the deponent. The Court might consider that it would be in a better position to assess both the credibility and reliability of the deponent’s evidence if it could observe and listen to him giving evidence viva voce, both in chief and under cross examination. In such circumstances the reception of oral testimony would be justified, and indeed required, in the interests of justice. However, where, as in the present case, the Court is required to evaluate expert testimony where the witness has expressed an opinion or opinions on a matter said to be within the scope of his or her expertise, the Court is much less likely to receive any benefit from receiving the proposed witness’ evidence, and particularly his or her evidence in chief, orally rather than in writing. The respondent in the present case has not, at this time, been able to identify any inherent matter in the proposed evidence to be given by either Ms. Ingrida Botriena or Professor Rod Morgan such that the Court would benefit from receiving that evidence orally rather than in written form. All that has been put forward is a concern at the seemingly peremptory dismissal of the views of those deponents expressed in letters from the Prosecutor General’s Office of the Republic of Lithuania by way of additional information. While it is true that by virtue of the Supreme Court’s judgments in Minister for Justice, Equality and Law Reform v Sliczynski [2008] IESC 73 such information is receivable by this Court without a requirement for formal proof, and that the authors of additional information cannot be required to submit to cross-examination, the fact that the author of additional information is not available to be tested or cross-examined is something that a respondent may legitimately comment upon, and the Court may take it into account in assessing the weight to be attached to the evidence in question. However, the mere fact that the applicant has submitted additional information which contains a seemingly peremptory dismissal of the views of the respondent’s deponents does not establish a requirement, in the interests of justice, that the respondent’s deponents should give oral testimony. The Court is also of the view that, quite apart from the merits of it, the respondent’s application is premature in any event. It is clear that what s. 20(4) of the Act of 2003 contemplates is the making of an application for the adduction of oral evidence in the course of a hearing, typically a s.16 hearing, where the proceedings have reached a point where it has become clear that the Court is faced with a conflict in the evidence that can only be resolved by hearing oral evidence. It is for this reason that the subsection goes on to state “and the court may, for the purpose of receiving oral evidence, adjourn the proceedings to a later date.” The present case has not yet proceeded to a hearing, and accordingly the motion before the Court is premature. Issue 2 : Request to Direct Applicant to Adduce Oral Evidence in respect of Evidence relied on by him to Challenge Evidence of Ms. Botriena and Professor Morgan.
Again, counsel for the respondent points to s. 20(4) of the Act of 2003 as providing the jurisdictional basis for the Court to give the direction sought. It is then further urged that:-
Decision on Issue 2 The position is that the Court is obliged in the first instance to proceed on the presumption that factual information provided by an issuing state, or issuing judicial authority, is correct having regard to the mutual trust and confidence that underpins the European arrest warrant system. Like all presumptions, that presumption is capable of being rebutted where the respondent adduces cogent evidence tending to rebut it. Moreover, that presumption cannot extend to unsupported expressions of opinion as to the reliability or credibility of evidence adduced by a respondent or gratuitous commentary as the motivation of a respondent and/or his deponents in putting forward particular evidence. Issues as to truth, credibility, reliability, and motivation are matters for this Court alone to assess. It is perfectly legitimate for a respondent, faced with a seemingly peremptory dismissal of the views of his expert deponents in additional information relied upon by an applicant, to comment on any lack of engagement by the applicant’s informants, to comment on the respondent’s inability to test the views of the applicant’s informants, and to suggest that such views should carry little weight in the circumstances. It will be a matter for this Court to attach or apportion such weight, if any, as it thinks appropriate to any material relied upon by either party. However, the mere fact that the applicant has submitted additional information which contains a seemingly peremptory dismissal of the views of the respondent’s deponents does not confer upon this Court a jurisdiction to compel or require the applicant’s informants to give oral testimony or submit to cross-examination. While counsel for the respondent was prepared to concede that for sound public policy reasons a judicial authority could never be compelled to give solemn or sworn evidence on which they might be subject to cross-examination, he urged nonetheless that the Court could direct the applicant to submit solemn or sworn evidence by persons other than the issuing judicial authority with a view to such deponents being made available, if required, for cross-examination. The Court is satisfied that it has no such jurisdiction. Conclusion
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