Applicable legislation does not prohibit man’s surrender to France

European Arrest Warrant – French authorities seeking the surrender of man convicted of three offences - custodial sentence of three years' imprisonment was imposed - smuggling of prohibited or heavily taxed goods as part of an organised group - attempted undeclared exportation of prohibited or heavily taxed goods committed as part of an organised group – conspiracy - arrested while driving a lorry which transported five tons of smuggled cigarettes – argued that there was a lack of clarity in the warrant - ticked box offence - minimum gravity is satisfied – correspondence – he argued that there was no correspondence with the first two offences - composite sentence for all three offences, therefore the warrant falls in its entirety - test for correspondence - evasion of tax duty – he argued that the information provided did not demonstrate the required state of mind, namely intention to defraud – Court determined that in its ordinary meaning, the transportation, possession and attempted exportation of smuggled tobacco indicates an intent to practice a fraud on the French authorities by means of avoiding taxes – Court satisfied that there was correspondence – he claims the description of the circumstances surrounding the offences for which his surrender is sought is void for uncertainty - description does not provide adequate particulars and/or any adequate information about his alleged criminal conduct for the three offences on the warrant - the EAW must provide clarity as to the preparatory acts or conduct of the respondent for each of the three offences - no clear and identifiable information in the EAW or additional information to set out the acts or conduct whereby he was involved in these offences - objectives for the requirement for a description of the circumstances in which the offences were committed - enable the High Court, in its capacity as executing judicial authority, to be satisfied that it is appropriate to endorse the warrant for execution in this jurisdiction - enable the executing judicial authority to be satisfied as to correspondence in cases in which double criminality is required to be demonstrated - enable the respondent to know precisely for what it is that his surrender is sought - totality of the information provided to the Court amounts to sufficient information as to the circumstances under which the offences were committed – sought to rely on the provision that a person shall not be surrendered under this Act if the offence specified in the European arrest warrant issued in respect of him or her was committed or is alleged to have been committed in a place other than the issuing state and the act or omission of which the offence consists does not, by virtue of having been committed in a place other than the State, constitute an offence under the law of the State - extraterritorial jurisdiction - principles of mutual trust and recognition - issuing judicial authority to make clear that s. 44 does not apply - abundantly clear that the substantive offences of the smuggling of cigarettes and the attempted exportation of the cigarettes took place in France - French law permits those involved in the offence at the level of preparation or instruction to be held liable as an accomplice – “to be punished as the main offence”. - offences occurred within the territory of France - whether a corresponding but hypothetical case of similar type conduct would be a crime in this jurisdiction - a conspiracy committed outside the State is an offence within this State if the offence, the subject of the conspiracy, was committed, or was intended to be committed, in the State or against a citizen of Ireland – whether his surrender would be an abuse of process – continued prosecution – earlier EAW which had to be withdrawn - transpired that the respondent had been convicted and sentenced in his absence and was no longer sought for prosecution - time line of relevant procedural events - a second or subsequent application for surrender for the same offence may be made – Court did not accept there was any mala fides on the part of the issuing judicial authority - lack of disclosure – argued that his surrender would be a disproportionate infringement of his personal and family rights - the consequences to him of surrender on these charges are no more than to be expected for any person who is subject to surrender to another country - no particularly harmful or injurious consequences put forward as regards the children and separation from a parent is an unfortunate necessity of the enforcement of criminal and extradition law – argued that his surrender was prohibited as the domestic conviction, sentence or detention orders in the issuing state are not immediately enforceable against him – argued a further procedure has to occur under French law should the respondent be surrendered – Court determined that the requirement under ss. (e) of s. 11(1A) that the EAW specify that the conviction, sentence or detention order be immediately enforceable is satisfied if the issuing judicial authority has indicated that there is an enforceable judgment by following the format set out in the form of the EAW contained in the annex to the Framework Decision - the French authorities have stated that the EAW is based upon the arrest warrants issued at the investigation stage which have been maintained by the sentencing court - they have then also relied upon the enforceable judgment of the sentencing court - such a process is clearly acceptable in France – Court orders his surrender.