Minister for Justice and Equality v TN [2019] IEHC 674 (14 October 2019)

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IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003 (AS AMENDED)

Judgment of Mr. Justice Alexander Owens delivered on 14th October 2019

1. I have decided to decline to order surrender of the respondent on the European arrest

warrants relating to the sentences imposed on him in Poland in 2004 and 2006. He has

established that the effect of the interference with his family life and the family lives of his

dependants which would follow from surrender to serve these sentences would be

disproportionate and is not justified by countervailing public interest considerations

2. Various objections to surrender were advanced on behalf of the respondent. In the light of

my finding on disproportionality it is not necessary to rule on all of these objections. It is

appropriate for me to comment on issues where there is enough material before me to

3. I would have needed further information from the Polish authorities in order to deal with

some of the points raised. I might have enquired whether the duration of the sentences is

calculated by reference to calendar or lunar months. The requesting authority states that

the time limit in Poland for the execution of the first sentence of four months

imprisonment expired on 11th October 2019. I would have sought further information on

this. The respondent states in his affidavit that he did not initiate an appeal against the

second conviction. This contradicts information supplied by the requesting authority and I

4. I refer to the first conviction and sentence. The respondent asserts in his supplemental

affidavit that he was abroad on a particular date, implying that he could not on that date

have collected the notice of the sentence hearing relating to the first offence, as claimed

by the requesting authority. This is unsatisfactory. His affidavit does not engage with how

he came to agree the penalty for the offence with the prosecutors around the same time.

This agreement was formalised by a subsequent court order at the hearing which he did

5. The European arrest warrant relating to this proceeding and the supplemental information

provided establish on their face compliance with a requirement in the Table to s. 45 of the

European Arrest Warrant Act 2003, as amended. I accept this information at face value.

A bare assertion of the sort relied on by the respondent is not sufficient to warrant further

enquiry of a requesting authority. Further enquiry is only necessary where there is

ambiguety or inconsisteny in the documentation presented by the requesting authority or

where credible evidence is presented which casts doubt on the reliability of the

6. The European arrest warrants were issued in November 2010 and June 2014. They seek

the surrender of the respondent to Poland to serve sentences of imprisonment for

violations of a court ban on driving motor vehicles “in land traffic” which is the equivalent

of an Irish offence of driving a mechanically propelled vehicle in a public place while

disqualified, contrary to s. 38 (1) and s. 38 (5) of the Road Traffic Act 1961 as inserted by

7. The first offence took place in a street in Szczecin in July 2004. The respondent asserted

that the applicant has not established that this offence corresponds with an Irish offence.

It was argued that the offending might have occurred when the respondent was driving in

a street at a time when it was not a “public place” as defined in Irish legislation. In my

view, there is no substance to this objection. The documents make clear that the offence

was of driving “in land traffic” on a street. This information and description are sufficient

for me to conclude that the offence was committed while he was driving in a public place.

He has not offered any evidence to demonstrate that he was not driving a car in a public

8. The second offence was committed in Szczecin on 24th April 2006. It resulted in a

criminal charge which the respondent did not answer to. He was convicted in his absence.

This conviction was the subject of an appeal which he denies that he initiated or

participated in. His evidence is that his wife attended at the appeal hearing as he was

9. As a result of the first conviction the respondent was sentenced to a term of four months

imprisonment. As a result of the second conviction he was sentenced to a term of six

months imprisonment. I am told that the first sentence was a suspended sentence which

10. The respondent has been living and working in Ireland since 2007. He got married in

Poland in 2005. The abandoned element of the first European arrest warrant suggests

that he has two children in Poland from a previous relationship. He lives with his wife and

their three children in a village in west County Cavan and has worked at various jobs

while living here. It is clear that he emigrated to Ireland with his family for economic

reasons and that he decided not to engage with the Polish penal authorities. I suspect

that his situation is not unique and that many Polish nationals may be working and settled

11. The offences which led to these European arrest warrants are minor offences. The

sentences are at or close to the minimum period set out in Article 2 (1) of the Framework

12. A long period elapsed before the European arrest warrants were issued and these

warrants have been executed very recently. There is no explanation as to why

enforcement is taking place now. This case cannot have been the most pressing matter in

the priorities of the authorities in the requesting Member State.

13. In this type of case what is categorised by a respondent as “delay” is often nothing more

than time which has passed as a result of inefficiency of prosecution or enforcement

authorities and his good fortune that these authorities have not yet caught up with him.

14. There is evidence that the respondent was in contact with Polish authorities in 2013 with

a view to returning to deal with the outstanding sentences and that he was refused a

passport renewal because of an objection by the prosecution authorities in Szczecin. He

gave his address and telephone number to the Polish Embassy in Dublin. In 2013 the

Embassy corresponded with him, using this address. One letter dated 22nd July 2013

conveyed a decision about a passport to a different address in Cavan town and was

copied to the authorities in Szczecin. He does not know how this address got on the

document and states that it was in fact sent to him at his west Cavan address which the

Embassy used in earlier correspondence. He states that he was not told about the 2010

European arrest warrant during this interaction. He has not held a passport since. He was

aware in 2013 that the Polish authorities had not decided to abandon enforcement of the

sentences and had no reason to think that they had altered their position since.

15. While I have taken into account this evidence, which the respondent categorises as delay

and obstruction of his return by the Polish authorities, these are minor factors in

assessing whether surrender of the respondent to Poland would result in disproportionate

16. A number of authorities were referred to during legal argument. These include the

judgments delivered by members of the Supreme Court in The Minister for Justice and

Equality v. J.A.T. (No. 2) [2016]2 I.L.R.M. 262; [2016] IESC 17. I have also been referred

to the judgment of Edwards J. in The Minister for Justice and Equality v. T.E. [2013] IEHC 323

. In J.A.T. (No. 2) the issue of a European arrest warrant was found to be an abuse of

process. The Court also decided that the return of the respondent to the United Kingdom

to face charges of taxation offences would be incompatible with Article 8. While the

judgments do not give general guidance, I agree with observations made by O’Donnell J.

at paragraphs 2, 4 and 11 of his concurring judgment. Many of these observations are

17. I am told that the recent decision of Hunt J. in The Minister for Justice and Equality v.

Vestartas [2019] IEHC 481 is being appealed to the Supreme Court which will give further

18. Rights under Article 8 only take precedence over the public interest in implementing

surrender under the Framework Decision in exceptional circumstances. Where an

objection to surrender is advanced which relies on Article 8 grounds it is necessary to

19. The United Kingdom Supreme Court has stated that the question at issue in applying the

test is whether the gravity of the interference with family life is justified by the gravity of

the public interest pursued: see Norris v. Government of The United States of America

[2010] 2 AC 487 and H(H) v. Deputy Prosecutor Genoa; H(P) v. Same; F-K v. Polish

Judicial Authority [2013] 1 AC 338. Judgments in these cases state that exceptionality is

not the test but the predicted outcome of the application of that test.

20. Disruption to family life as a result of surrender will usually be very significant in cases

where a respondent satisfies the test. In my view, the test is not confined to carrying out

a balancing exercise. When courts speak of disproportionality, they mean significant

disproportion. In order to justify a decision to refuse surrender it is necessary to identify

the factors which give rise to clear disproportionality in the sense of a significant

disproportion between the adverse effects on family life and the public interest in trial or

21. Some exceptional features will usually be present in a case where surrender is refused on

this ground. What grave interference with family life will the respondent and his family

suffer? It is inherent in the surrender process and in any criminal process that the

removal of a person elsewhere and incarceration pending trial or for punishment will

result in disruption in family relationships and may cause very significant hardship. This is

not an exceptional feature which results in disproportionality. It is an inevitable

22. In many cases surrender of a person to serve a short term of imprisonment will not

23. While many factors may be relevant, the starting point is that special weight must be

given to the objective of ensuring that persons within the European Union who may have

committed crime are duly prosecuted in the appropriate Member State and that they

serve sentences imposed by the courts of the Member States. It is for a respondent to

demonstrate in a clear way the existence of some factor under Article 8 which should take

24. The conduct of a respondent is relevant. How has the family situation which the

respondent is now seeking to rely on arisen? Is it appropriate that a respondent should

use family circumstances to avoid facing trial or punishment where he should have been

aware that he might have to face trial or punishment in the requesting Member State at

25. While the seriousness of offending and the length of sentence imposed are potentially

relevant in considering the gravity of the interest being pursued by the requesting

authority, it is also necessary to bear in mind that Article 2 (1) of the Framework Decision

sets out the offence and sentencing thresholds. The interest in ensuring that a person

serves a short term of imprisonment may be less important than that of securing return

for the purposes of prosecution or punishment for a more serious offence. These are

subsidiary considerations as the focus of enquiry should be on the effect of the surrender

on the family circumstances of the respondent and his dependants.

26. If authorities in a requesting Member State appear to take little interest in pursuing

enforcement of a minor punishment over a number of years, it may be more difficult to

assert that there is an important public interest in enforcing that sentence. However, any

failings of administrators and judicial authorities in a requesting Member State should not

be equated with an absence of a public interest in prosecution and enforcement in that

State or an absence of a European Union interest in the effective operation of criminal law

and the Framework Decision throughout the European Union. It is the communal interest

of the Member States that those who may be guilty of crimes in any Member State are

duly prosecuted and that sentences imposed by the courts of a Member State are

enforced. Lack of administrative or judicial resources and outdated systems will always

have an adverse impact on the efficiency of prosecution and enforcement. We do not live

in a world of perfect and uniform judicial, prosecutorial, investigative or administrative

27. A respondent can have no legitimate expectation that he can avoid surrender under the

European arrest warrant arrangements because of passage of time arising from lack of

resources or from the inefficiency of those who should be pursuing the matter. He cannot

order or alter his family affairs in the meantime or make family commitments on the basis

of an assumption that the law will not eventually catch up with him. Members of his

28. Applications for surrender under the Framework Decision must be decided speedily and

there is no room for the development of an elaborate jurisprudence on “delay” and

“systemic delay”. Delay is not a stand-alone ground on which surrender should be

29. Personal circumstances may change with the passage of time in a way which increases

potential of disruption to family life as a result of a surrender. In this case the

respondent’s family is now facing more difficulty as their eldest son with multiple learning

disabilities and autism grows older and becomes more difficult to manage. The problems

which the family will face if the respondent is surrendered now would not have been so

30. This case comes within the category of exceptional cases where the interest in

enforcement does not outweigh the gravity of the interference with the respondent’s

family life and the disruption to the lives of his family members which will result from the

surrender to Poland. The weighting to be given to the public interest is minor when set

against the likely adverse effects on the respondent’s family and the surrender would

31. The respondent is the family breadwinner. He and his wife are heavily involved in looking

after their teenage son who suffers from autism and many other disabilities. He attends a

special day school which is located some 45 km from the family home. The respondent’s

wife is also involved in looking after their other children and it is clear that she will not be

able to cope on her own. Their son has profound behavioural and other problems which

are very difficult to manage and require the constant presence of his father. I have no

doubt that surrender of the respondent will cause very severe disruption to the members

of this family unit. I refer to the content of paragraphs 16-19 of the respondent’s affidavit

sworn on 7th October 2019 and to the report from the special day school dated 4th

September 2019 which I accept.

Result: Order for surrender refused

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Minister for Justice and Equality v TN [2019] IEHC 674 (14 October 2019) URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_674.html Cite as: [2019] IEHC 674

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