Title:The Attorney General -v- Anthony Abimbola.
SUPREME COURT
Judgment delivered on November 28th, 2007, by Mr Justice Fennelly, Ms Justice Denham and Mr Justice Kearns concurring.
JUDGMENT
The arrest of Anthony Abimbola was invalid, as the relevant part of the Extradition Act 1965, under which he had been arrested, had been revoked by the Minister for Foreign Affairs in the light of the coming into force of the European Arrest Warrant Act 2003. Therefore his detention was invalid and he should be released.
This ruling did not prevent the issuing of a European Arrest Warrant by Germany, or its subsequent execution in this State.
BACKGROUND
Anthony Abimbola was arrested following a request from Germany in September, 2003, for his extradition to serve a five-and-a-half year sentence for rape. Following the receipt of further information from Germany, on June 7th, 2006, the Minister for Justice confirmed he had received the request, and issued a certificate under Part II of the Extradition Act 1965, as amended in 2000 with reference to Germany.
However, on November 24th, 2004, a statutory instrument was made by the Minister for Foreign Affairs which meant that the 1965 Act no longer applied to Germany, as it was superseded by the European Arrest Warrant.
On June 8th, 2006, the High Court issued a warrant under the 1965 for Abimbola's arrest, and he was arrested on July 19th and remanded in custody.
On August 3rd Dr Michael Forde, SC, applied on his behalf for an inquiry into the legality of his detention, and this application was rejected. On November 1st, 2006, the High Court ordered his surrender to Germany.
He appealed the High Court rulings to the Supreme Court on the basis that Part II of the 1965 Act ceased to apply in relation to Germany from November 24th 2004, when the European Arrest Warrant Act came into effect.
The High Court had interpreted this legislation as stating that pre-existing extradition requests were to be handled under existing legislation.
DECISION
Mr Justice Fennelly said that the words in the Statutory Instrument "shall cease to apply in relation to that country" (namely Germany) "had the effect that Part II had simply ceased to have application in relation to extradition to Germany."
"If Part II of the Act did not apply, how could the Minister validly grant a certificate or the High Court issue a warrant for arrest?" he asked.
He said that Article 34 (2) (b) of the Treaty on European Union, which provided the power for the Council to adopt the Framework Decision (concerning the European Arrest Warrant) said that the provision "shall not entail direct effect". This meant that the Framework Decision could only have legal effect by means of the interpretation of national law.
He rejected an argument made by Robert Barron, SC, on behalf of the Attorney General, that the Interpretation Acts required that the extradition proceed under the revoked instrument.
"The arrest of the appellant and all subsequent procedures in relation to his proposed surrender to Germany were invalid," he concluded. "It follows that his detention is unlawful and that he should be released."
The full text of this judgment is on www.courts.ie