The High Court has ordered that Michael Dermot McArdle be surrendered to Spain under a European Arrest Warrant relating to an alleged homicide. In a judgment delivered on 27 May 2005, Finnegan P. rejected the respondent’s objections and said he would make the surrender order.
The case came before the court under section 16 of the European Arrest Warrant Act 2003. The judge said the warrant had been endorsed under section 13 before the Criminal Justice (Terrorist Offences) Act 2005 was passed, so that Act’s amendments did not apply. He was satisfied that the statutory requirements for identity, endorsement and undertakings had been met, and that surrender was not barred by the relevant provisions or the Framework Decision.
The respondent argued that surrender would be an abuse of process because of irregularities in the Spanish proceedings. He said a court in Malaga had handled preliminary proceedings after his wife’s death, released her body for repatriation and burial without restrictions, and left him believing investigations had ended. The court found those proceedings were akin to an inquest, not a criminal investigation, and that there had been no decision to abandon a criminal investigation. It was satisfied that the court in Marbella had jurisdiction to issue the warrant. It also rejected an abuse-of-process objection based on an earlier, withdrawn extradition request, finding that extradition had not then been possible because Ireland would not extradite its own citizens to Spain.
On delay, the judge considered the period since the alleged offence, dated 12 February 2000, and an earlier provisional arrest warrant issued in October 2001. He found the delay was not exceptional and had not prevented an order for surrender. The respondent relied on evidence from a forensic scientist that the passage of almost five years had deprived him of an opportunity to test forensic findings or arrange his own post-mortem. The judge said he had no information about what forensic evidence would be available at any prosecution, and found the circumstances did not establish exceptional delay or make surrender unjust, oppressive or invidious.
The court also rejected the objection that surrender would breach constitutional or European Convention rights, saying nothing had been put forward to suggest those rights would be abrogated in a trial in Spain. Finally, it found the warrant was for the purpose of bringing proceedings, rather than a preliminary inquiry alone. The judgment records that Spain intended to try the respondent for the alleged homicide. The court’s order concerns surrender; the judgment does not determine the allegation of homicide.