The Supreme Court has dismissed an appeal against an order surrendering Roger Michael Gardener to the United Kingdom under a European Arrest Warrant. The court said the appeal had been “to a very considerable extent” overtaken by events, but concluded there were no grounds to overturn the order.
The appeal concerned a High Court judgment and order made by Peart J on 6 February 2007. The warrant, dated 18 August 2006, covered ten alleged offences: perverting the course of justice, conspiracy to commit arson, attempted deception to obtain property, three counts of rape and four counts of indecent assault on a female.
The first three offences were alleged to have occurred between 7 August and 9 September 2000. They had been listed for trial at Newport Crown Court on 4 June 2001, but Gardener did not attend. The rape and indecent assault charges were alleged to relate to events between 25 October 1987 and 26 October 1989. A preliminary hearing in those proceedings was listed for 1 June 2001; the judgment later refers to a missed hearing on 25 May 2001.
Gardener argued that the time taken before the warrant was issued created a presumption of prejudice. His counsel acknowledged that no specific prejudice had been shown and that the appeal could not meet the test set out in an earlier Irish decision on prosecutorial delay. The Supreme Court applied its recent decision in Minister for Justice, Equality and Law Reform v Stapleton, holding that a person who was the principal cause of the delay could not rely on it. It also said delay should generally be addressed at trial in the requesting state, unless clear and cogent evidence establishes a fundamental defect in that state’s justice system. The judgment said no such defect had been advanced in this case.
The appeal also challenged the High Court judge’s refusal to seek further information under section 20 of the European Arrest Warrant Act 2003 about the delay. The Supreme Court agreed with that refusal. It said the evidence showed the proceedings could not advance after Gardener failed to attend, and that he had moved to Ireland. The judgment said he made no specific allegation of culpable delay by prosecutors and relied only on the passage of time. It held that section 20 should not be used on a bare assertion: there must be material in the application or a cogent-evidence issue raised by the respondent.
The court dismissed the appeal, leaving the High Court surrender order in place.