The High Court ordered Kevin Barry’s surrender to the United Kingdom for prosecution on one alleged sexual assault offence, finding that the conduct described in a European Arrest Warrant would correspond to sexual assault under Irish law.
In a judgment delivered on 11 December 2009, Mr Justice Michael Peart said the warrant’s account was sufficient to establish correspondence under section 5 of the European Arrest Warrant Act 2003, as amended. The court’s decision concerned whether surrender could be ordered; it did not determine guilt or whether the alleged conduct took place.
The warrant was issued in the UK on 29 May 2009 and endorsed for execution in Ireland on 18 June. Barry was arrested and brought before the court on 14 September. The judgment records that his identity was not disputed and that affidavit evidence from the arresting Garda identified him as the person named in the warrant.
The respondent’s counsel accepted that the facts in the warrant described indecent circumstances but argued they did not establish an assault, which would require absence of consent under the corresponding Irish offence. Counsel also pointed to the warrant’s account of a conclusive presumption under UK law concerning the complainant’s capacity to consent.
The applicant’s counsel argued that the conduct described itself indicated lack of consent, and that the Irish court did not need to decide whether a capacity presumption would be relied on at any UK trial. The judgment recounts the warrant’s allegation that Barry pinned the complainant to a couch and pulled at her clothing before she got free and left.
Justice Peart held that the court could take a common-sense approach to the facts in the warrant. A possible defence at trial, including that the activity was consensual, did not require the surrender court to adopt an interpretation more favourable to the respondent. He found the description sufficient to constitute an assault and indecent circumstances for the limited purpose of establishing correspondence.
The judge said there was otherwise no reason to refuse surrender under the provisions considered in the judgment and ordered surrender. The judgment does not record a finding on the underlying allegation or the outcome of any UK prosecution.