The High Court refused an application to surrender Noel McPhillips to Belgium under a European arrest warrant, finding that the warrant and further information did not provide enough detail to support surrender for any of the 16 offences listed.
Mr Justice Michael Peart delivered the judgment on 14 December 2010. The warrant, issued in Belgium on 8 February 2008 and endorsed for execution in Ireland on 2 June 2010, sought McPhillips’s surrender. He was arrested on 18 June 2010 and brought before the High Court the following day.
Although the warrant’s opening paragraph said surrender was sought to execute a custodial sentence, the judgment said McPhillips had not been convicted or sentenced. The court treated the request as one seeking his return for prosecution. McPhillips argued that Belgium instead wanted to interrogate him and had not decided to prosecute.
The warrant listed two offences concerning concealment of a crane truck and forming a gang, followed by 14 theft offences. The theft allegations concerned vehicles and equipment taken at different times and places in Belgium. Information from Belgian authorities alleged that McPhillips and another person had organised or ordered shipments of stolen vehicles from Ireland, while others carried out the thefts.
The court found that the 14 theft offences corresponded to Irish theft offences, but that the warrant failed to give enough information about McPhillips’s own involvement to meet the requirements of section 11 of the European Arrest Warrant Act 2003. The additional information did not remedy that deficiency.
The concealment offence did not correspond to an Irish offence on the facts presented. The judgment said Irish law could cover handling property stolen abroad, provided the theft was an offence where and when it occurred; it did not follow that a person could be prosecuted in Ireland for handling or receiving stolen goods abroad. The court also found insufficient factual detail to establish that the alleged gang-forming offence corresponded to the Irish offence of conspiracy.
The judge was not satisfied that the statutory presumption of a decision to prosecute had been rebutted. He said the evidence did not establish that questioning in Belgium was outside its prosecution process, and there was no evidence McPhillips had tried and failed to obtain the assistance of a Belgian lawyer.
The court did not decide the remaining objections, including challenges to the domestic decision underlying the warrant, the examining magistrate’s status, delay, and access to legal fees under the Attorney General’s scheme. It refused the surrender application for all offences specified in the warrant.