The High Court refused an application to surrender a man to Poland under a European arrest warrant, finding that the statutory protection for a person tried in his absence applied and that Poland had not provided the required undertaking for a retrial.
Mr Justice Edwards’s judgment, delivered on 15 February 2013, concerned a warrant seeking the man’s return to serve a one-year sentence imposed in Poland for driving while under the influence of alcohol. The sentence had initially been suspended and was later ordered to be served after a separate conviction for riding a bicycle while intoxicated. That later offence was not the offence covered by the warrant.
The man objected to surrender on several grounds. On the issue that determined the application, he said he was absent from the trial for the driving offence and had not received notice of when or where it would take place. Polish authorities said notice had been served on his brother, who undertook to pass it on, and that the man later received the judgment and information about his right to appeal. The man had not appealed.
The court found that he had been tried in his absence after pleading guilty in a police station under an agreement with the prosecutor. He did not attend the later hearing at which the conviction and sentence were recorded. The court was not satisfied that his brother’s undertaking to pass on the notice established that the man actually received it. It said the available information left open whether the notice had been passed on.
Under section 45 of the European Arrest Warrant Act 2003, as applicable to the case, surrender was prohibited in those circumstances unless the issuing judicial authority gave a written undertaking that the man would be retried or given the opportunity of a retrial, with notice of and permission to attend that hearing. No such undertaking was provided. The court therefore upheld the first point of objection and concluded that surrender was prohibited.
The judge rejected the objections that the warrant lacked sufficient detail or failed to establish correspondence with an offence under Irish law. The court was satisfied that the Polish driving offence corresponded to driving under the influence under Irish road traffic law. It also said the separate bicycle offence that led to activation of the suspended sentence did not need to correspond to an Irish offence for the surrender request at issue.
The court was not persuaded by the objections based on delay, family rights or proportionality, flight, or specialty. It noted that those issues did not alter the outcome once the section 45 objection had succeeded. The court refused the Minister’s application for an order under section 16(1).