The High Court ordered the surrender of M M to the United Kingdom under a European arrest warrant, rejecting objections that the hospital order and restrictions imposed there were outside the warrant system or amounted to impermissible preventive detention.
Mr Justice Michael Peart gave judgment on 19 December 2007. The warrant sought M M’s return so he could continue to be detained under a hospital order and indefinite restrictions made in 1994, after his conviction for rape and assault occasioning actual bodily harm. The court said the warrant followed his escape from detention in 2006. The judgment records that he was in custody in Ireland awaiting trial on a separate rape charge; it makes no finding on that allegation.
The respondent argued that the 1994 order was not a sentence of imprisonment or detention within section 10 of the European Arrest Warrant Act 2003, as amended. Relying on an affidavit from an English barrister and English case law, his counsel submitted that the order was therapeutic and protective rather than punishment, and that its indefinite duration made surrender legally impermissible. She also argued that continued detention would be unconstitutional preventive detention and that time spent in Irish custody could not be credited against an indefinite hospital order.
The Minister’s counsel submitted that the order was imposed after conviction and in a penal context, while also serving protective purposes. The Minister also relied on evidence describing review and discharge procedures for restricted patients in the United Kingdom.
The judge accepted that the hospital order was not a sentence of imprisonment under UK law. But he held that a “detention order” under the Framework Decision and the Irish Act was not limited to a custodial sentence. Reading the provisions in light of the Framework Decision’s purpose, he concluded that the term could cover detention ordered after conviction, including the hospital order with restrictions in this case.
He also rejected the constitutional objection. He distinguished the bail case law cited by the respondent, which concerned holding an accused person to prevent possible future offending, and characterised the detention here as protective, subject to review. He found the UK review regime did not breach Convention rights.
The court concluded there was no basis under Part III of the Act or the Framework Decision to prohibit surrender, and that the other requirements of section 16 had been met. It therefore made the surrender order. The judgment did not decide the separate Irish rape allegation.