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One of offences listed on European arrest warrant did not correspond with offence at Irish law

By: James Cross BL

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High Court refuses surrender to Romania pursuant to a European arrest warrant (EAW), on the grounds that: (a) one of the offences, being conspiracy to commit a summary offence, had not been known at Irish law at the date of issue of the EAW; and (b) the authorities established that surrender must be refused if there was not correspondence in domestic law with all of the offences on the EAW.


European Arrest Warrant – Romanian authorities seeking the surrender of the respondent - enforce a sentence of two years and ten months’ imprisonment imposed on 16th December, 2019, all of which remains to be served - four road traffic offences - convicted in 2018 in respect of seven other offences, being five assault offences on police officers, driving without a licence and refusing to provide a blood sample for the purposes of ascertaining his blood alcohol level - aggregate sentence – points of objection – correspondence - blood alcohol concentration - insufficient evidence to establish that he was the owner of the vehicle - appears he was not the owner of the vehicle and the arrangement upon which he had possession of same was more akin to a hire-drive agreement than a hire purchase or letting agreement - ownership is an essential ingredient of the offence under Irish law - the offence in the EAW would not constitute an offence under the law of the State if carried out in this jurisdiction - not satisfied that correspondence can be established – alternative offence - common law offence of conspiracy - not satisfied that a charge of conspiracy to commit such an offence has been or would ever be prosecuted in this State - not convinced that it is now open to the Court to effectively extend the parameters of such liability by reference to the common law offence of conspiracy - not satisfied that, by resort to the common law, a person, not being the owner of the vehicle, who permits another to drive that vehicle without a valid licence, is at risk (albeit an unlikely risk) of being prosecuted on indictment for conspiracy to commit an offence under s. 38 of the Act of 1961 with an unlimited penalty in terms of imprisonment and a fine, in circumstances where the owner of a vehicle doing precisely the same thing would only be exposed to summary prosecution and a limited fine - applicant is unable to indicate any instance in this jurisdiction of a charge of conspiracy to commit any summary offence ever having been prosecuted, let alone conspiracy to commit an offence under s. 38 of the Act of 1961 – not satisfied that correspondence has been established between one of the offences to which the EAW relates and an offence under the law of this State – prison conditions – whether conditions in Romanian prisons were such that detention therein would be a breach of the respondent’s right under article 3 of the European Convention on Human Rights - presumption that Member States will comply with the requirements of the European Council Framework Decision – Court satisfied that an order for surrender would not be rendered incompatible with those obligations due to prison conditions in the issuing state – surrender refused –

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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