The High Court ordered the surrender of Thomas Martin McCague to the United Kingdom under a European arrest warrant, rejecting his objections to being returned. The warrant sought his return to serve two five-year sentences and face a separate charge of failing to surrender to the custody of a court.
In a judgment delivered on 30 May 2008, Mr Justice Michael Peart said the two sentences were for conspiracy to evade excise duty and conspiracy to conceal or transfer criminal proceeds. The third charge related to failing to attend court as required on 11 January 2005. The court found that charge corresponded to an offence under Irish law and met the minimum gravity threshold for surrender.
McCague had been convicted and sentenced in his absence in the UK. He argued that the trial should have been adjourned because of medical problems and threats to his safety, and that he had not been notified of the later sentencing hearing. His lawyers had presented medical material and information about alleged threats to the Crown Court, which refused an adjournment and proceeded with the trial after McCague failed to attend medical appointments arranged for him. The solicitor and counsel then withdrew, following McCague’s instructions.
The High Court said it would not review the UK court’s decision to refuse an adjournment. It concluded that the circumstances did not reach the exceptional level needed to prevent surrender under section 37 of the European Arrest Warrant Act. It also held that any claim about the fairness of the UK proceedings or available remedies should be pursued in the UK, and that the evidence did not establish that no remedy was available there.
The judge said a fair hearing includes notice of a sentencing hearing held separately from trial, and that courts should take reasonable steps to locate and notify a person before sentencing them to imprisonment in their absence. However, McCague had not provided evidence that he was unaware of or had not been notified of the sentencing date. The court therefore rejected that factual objection.
It also ruled that section 45, which concerns absence from trial, did not require an undertaking for a retrial or rehearing of sentence. McCague had been notified of his trial and chose not to attend, the court found. The judge further rejected objections concerning the clarity of the third charge and the possibility of a confiscation order and additional imprisonment. He treated any confiscation order as a financial penalty consequent on conviction, not a separate prosecution, and said it did not prevent surrender.