The High Court has rejected Kenneth Dundon’s application for immediate release from Cloverhill Prison, ruling that delay beyond the statutory 60- or 90-day period for deciding a European arrest warrant case did not, by itself, require his release.
In a judgment delivered on 3 May 2005, O’Sullivan J. found that Dundon was lawfully detained. The court said there was no bar in principle to implementing the order for his surrender to the English authorities, subject to his right of appeal. The judgment does not state that surrender took place.
Dundon’s application followed an earlier High Court order directing his surrender to England. That order was made on 14 May 2004 after the court decided that undertakings provided in the case met the requirements of the European Arrest Warrant Act 2003. Dundon appealed. On 16 March 2005, the Supreme Court dismissed the appeal and confirmed the surrender order. Dundon then sought an inquiry into the legality of his continued detention, arguing that the time limits had expired.
His counsel submitted that the European arrest warrant process had lapsed because no final decision was made within 60 days of his arrest, or within the possible 90-day extension. The applicant argued that the court lacked authority to make a decision after that period and that he should be released. His arrest had taken place on 11 February 2004, and the initial High Court surrender order came more than 90 days later.
The respondents argued that the law required authorities to report delays but did not provide for release when the deadline for a final decision was missed. The judge observed that the Act expressly provided for release in some situations, including where the High Court decided not to make a surrender order, but did not specify release as the consequence of exceeding the 60- or 90-day periods.
The judge also distinguished those deadlines from the time limits for carrying out a surrender after a final decision. The Framework Decision expressly provided for release when a person remained in custody beyond the post-decision surrender period, but had no equivalent provision for delay before the final decision. O’Sullivan J. concluded that the earlier deadlines were intended to promote speed and require reporting, rather than to give an automatic right to release.
The court therefore refused immediate release and found the detention lawful. Its conclusion that surrender could be implemented remained subject to Dundon’s right of appeal.