The High Court ordered Patrick Murtagh’s surrender to Northern Ireland for prosecution on two alleged rape offences said to have occurred in 1979. Mr Justice Michael Peart held that the claimed prejudice from delay did not establish a real risk that he would be denied a fair trial.
The judgment, delivered on 26 February 2010, concerned an application by the Minister for Justice, Equality and Law Reform under a European arrest warrant issued on 10 February 2009. It was endorsed for execution in Ireland on 4 March 2009. Murtagh was arrested on 13 October 2009 and brought before the High Court the following day.
The offences were listed as falling within Article 2.2 of the European Arrest Warrant Framework Decision, so the court said it did not need to verify double criminality. It also found that the minimum gravity requirement was met and that no other identified statutory or Framework Decision bar prevented surrender, subject to the objection based on delay.
Murtagh argued that he should not be held responsible for missing a September 2005 Crown Court date. In an affidavit, he said his solicitor had told him the case was listed for mention only after counsel withdrew because of other commitments, and that he understood he did not need to attend. The solicitor’s letter, quoted in the judgment, said the judge had asked whether Murtagh intended to attend and advised that it was in his interests to do so. A warrant for his arrest was issued after he did not appear.
He also argued that he could not receive a fair trial because the complainant’s husband had died in April 2004. Murtagh said the complainant had told her husband about the allegations around 1986 or 1987, and that the husband’s absence deprived him of evidence or a possible opportunity to challenge whether that conversation occurred. The judgment records this as the only prejudice asserted.
The judge concluded that this did not amount to a real risk of an unfair trial. He said the account of a complaint made years after the alleged offences might be inadmissible, and noted that the evidence referred to similar late disclosures to two other people. He also observed that the husband had died before the scheduled 2005 trial, when the issue could have been raised with the trial judge, and that a remedy in the requesting state had not been shown to be unavailable.
The court therefore ordered surrender. It expressly made no finding on the length or reasons for the delay, or on whether Murtagh was responsible for any part of it. It also expressed no view on the scope for delay arguments following the cited Supreme Court decision.