The High Court ordered the surrender of a respondent identified as TD (also known as Tó’R) to Northern Ireland for prosecution on 15 alleged offences involving indecent photographs of children. It refused surrender on two further alleged offences involving extreme pornographic images, finding that the conduct described did not correspond to an offence under Irish law.
In a judgment delivered on 25 April 2023, Mr Justice Kerida Naidoo considered a Trade and Cooperation Agreement Warrant dated 11 November 2022. The warrant sought prosecution on 17 alleged offences: 15 of making indecent photographs of children and two of possessing an extreme pornographic image. The High Court endorsed the warrant on 12 December 2022, and the respondent was brought before it on 3 January 2023.
The respondent had initially objected that the warrant did not adequately specify the allegations. After additional information was supplied, that objection was not pursued at the hearing. The judge was satisfied that the information was sufficient and that no statutory bar to surrender applied on the grounds considered. The respondent’s identity as the person named in the warrant was not disputed.
The contested issue concerned correspondence between the two offences relating to images 16 and 17 and an offence under Irish law. Further information confirmed that the images depicted adults, not children. The applicant argued that possession of the images could correspond to offensive conduct of a sexual nature under section 45(3) of the Criminal Law (Sexual Offences) Act 2017. The respondent argued that possessing an image was not itself sexual conduct.
The judge accepted the respondent’s submission. He found that section 45(3) concerns behaviour that is inherently sexual and itself likely to cause fear, distress or alarm to someone aware of it. In his view, possession of a pornographic image did not meet that definition; the alleged offensive content was in the image, rather than in the act of possession. He was therefore not satisfied that the two Northern Ireland offences corresponded to an offence under Irish law.
By contrast, the judge found correspondence for the 15 offences involving images 1 to 15 with the Irish offence of possessing child pornography. He ordered surrender for prosecution in respect of those offences under section 16 of the European Arrest Warrant Act 2003, as amended. He refused the surrender application for the offences relating to images 16 and 17. The judgment concerned surrender for prosecution, not a determination of guilt.