The High Court refused the Minister for Justice, Equality and Law Reform’s request to adjourn an application for the surrender of John Kinsella to Belgium, saying the adjournment could serve no useful purpose while Irish proceedings based on the same underlying acts remained before the court.
In a judgment delivered on 20 June 2007, Mr Justice Michael Peart said section 42 of the European Arrest Warrant Act 2003 barred surrender once proceedings had been brought in Ireland for an offence consisting of an act or omission that formed all or part of the offence in the warrant. The judge said the provision required refusal of surrender regardless of the outcome of the domestic prosecution.
The Belgian judicial authority sought Kinsella’s surrender under a European arrest warrant dated 28 September 2006. The warrant alleged that he was involved in exporting 48 kilos of heroin from the Netherlands, recruiting people to transport drugs from Wevelgem airfield to Ireland, and organising the smuggling. These were allegations in the warrant, not findings by the High Court.
The Director of Public Prosecutions had decided to indict Kinsella in Ireland on charges of importing the drugs, and he was on remand awaiting trial. The judge said the court had previously concluded that this domestic prosecution prevented an order by consent under section 15. The present question was whether the section 16 surrender application should be adjourned until after the Irish trial.
The judge held that section 18, which allows postponement of surrender in certain circumstances after an order has been made, did not apply because no surrender order could be made at this stage. He also noted that the Act did not specify what should happen if the person was acquitted or convicted in Ireland. He expressed no view on the separate possibility of the domestic prosecution being discontinued by a nolle prosequi.
The Minister could proceed with the section 16 application and make submissions about whether surrender could nevertheless be ordered, or seek to withdraw the warrant. The judge allowed time for instructions if requested. Unless the warrant was withdrawn, he said, the court would hear the application to a conclusion rather than adjourn it. The judgment did not itself decide the section 16 application or order surrender.