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  • by the law of Poland the suspension of sentences in respect of the earlier offences may as a consequence of the later conviction be lifted by the court and that that did in fact lawfully happen Furthermore the respondent refutes the allegation that the trial in respect of the later conviction should be characterised as a trial in absentia Alternatively the respondent argues that section 45 has no application The essence of the respondent s case is that at the time the appellant departed for Ireland he knew he had committed the later offence and therefore knew that the suspension could be lifted and yet did not comply with Polish law which required the furnishing of an address in Poland at which court notices could be served and that he was bound by the Polish law that once service was effected on that address the appellant was deemed to have been properly notified Furthermore the appellant did in fact continue to have legal representation even though he now claims this was unauthorised Before expressing an opinion on the issues between the parties I think it important to outline the material information coming before the court emanating from Poland In doing this exercise I will confine myself to the parts which are relevant to this issue Much of the procedural history of the case is not really material In the European arrest warrant the offences are described as follows On the 21st July 1997 in Gorzow Wlkp acting jointly and in conspiracy with other offenders beat and kicked Dariusz Mielczarek over all his body injuring his body by causing a haematoma behind his right ear and a bruised upper lip which exposed him to a direct threat of bodily harm and serious health impairment or serious health breakdown On the 21st June 1998 in Gorzow Wlkp in the Bara Bara club in 30 Stycznia Street acting jointly and in co conspiracy with another person beat Artur Pioch hitting him with his head in his face and with his hands and kicking in his head causing bodily injuries such as bruises on his head by which he exposed him to a direct threat of bodily harm and serious health impairment or serious health breakdown On the 15th January 2001 the relevant District Court and with a case number VII K422 98 conditionally suspended a penalty of one year and four months of deprivation of liberty for a probation period of five years As a consequence of a conviction on the 18th November 2004 of a different offence the suspension was lifted and execution was ordered of the sentence imposed on 15th January 2001 at a court hearing on the 19th May 2005 There was a long history of appeals and applications arising out of that order but it was finally confirmed by an appeal on the 17th May 2006 By affidavits sworn on the 6th March 2008 and 14th March 2008 respectively by Anthony Doyle an executive officer in the Department of Justice Equality and Law Reform correspondence from the Polish court authorities both of first and second instance is exhibited I think it unnecessary to set out this correspondence in full in this judgment but I will quote what I regard as relevant extracts In the first letter it is for instance stated as follows In the light of the fact that during the period trial consequent to the sentence VII K422 98 the convict had committed another crime for which he was punished in case VII K139 04 the court summoned the above mentioned person to the court sitting on the 19th May 2005 the a m person did not appear He did not respond to the summons even though it was sent to the indicated address So called advice note summons are treated by the Polish law as delivered ones and so the court treated the convict as properly informed about the term of the court s sitting and on the 19th May 2005 ordered an execution of the penalty of one year and four months of imprisonment The convict had the knowledge of the court s decision because he personally filed a complaint against this decision The letter goes on to describe how a barrister purporting to act for the appellant filed a petition seeking an adjournment of the execution of the penalty One of the reasons given was that the appellant stays in England where he works As the appellant in his own affidavit makes clear that he never worked in England it is perfectly obvious that the reference to England was a mistaken reference to Ireland The petition for the adjournment of the execution of the penalty was refused and apparently according to the letter the appellant s mother received the decision The same barrister acting on behalf of the appellant filed a further complaint with a view to obtaining an adjournment It is then commented in the letter as follows Consequently we can assume that the convict had a full knowledge of being wanted and that the arrest warrant issued as a result of not appearing before the court The second exhibit in the first affidavit of Mr Doyle largely contains a repetition of the same information though coming this time from the regional court judge that court being the appeal court However the last paragraph in the letter is worth quoting Attention should be brought to the fact that the wanted person throughout the proceeding on this matter had a defence attorney who informed him at least he should have about the legal situation of his mandator Thus it should be assumed that the wanted person was fully aware of his legal situation in the proceedings It should also be added that Jaroslav Stankiewicz did not inform the court about a change in the place of his residence if any which was his obligation The first exhibit in the second affidavit of Mr Doyle is a letter of clarification on certain matters that are not all relevant to this appeal but two extracts are relevant and I quote them as follows The court further clarifies that Jaroslav Stankiewicz s conviction by the District Court on November 18th 2004 case number VII K139 04 for an offence committed on October 9th 2003 was merely a basis for obligatory reactivation of the suspended imprisonment sentence handed down in case number VII K422 98 which in turn constitutes the basis for the EAW In other words Jaroslav Stankiewicz is wanted under the EAW in question because he was convicted by the District Court on January 15th 2001 in case number VII K422 98 Although the imprisonment sentence was conditionally suspended for a trial period it was afterwards ordered to be carried out since Mr Stankiewicz had committed a similar intentional offence one for which he had already been convicted The second relevant extract reads as follows The Circuit Court confirms that Mr Stankiewicz was represented by his attorney both on May 19th 2005 when the suspended sentence was reactivated and throughout the entire length of court proceedings that ended with the final ruling on October 25th 2006 Also be advised that Mr Stankiewicz s residing at an indicated address was not a condition of the suspended sentence nor was it a condition in the second offence The court has to know an address of a person only to be able to deliver correspondence to that person if a person chooses to reside elsewhere without notifying the court of the fact that he or she has changed addresses any correspondence sent to the last known address of that person is automatically considered properly served The second exhibit in that affidavit is the decision of the court to issue the European arrest warrant I do not find it necessary to cite any of its contents for the purposes of resolving the issues in this appeal The appellant himself swore an affidavit on the 2nd April 2008 In that affidavit the appellant refers to the fact that the decision to enforce the sentence against the appellant was made on the 19th May 2005 He goes on to state that he left Poland for Ireland in March 2005 for the purpose of work He then states that between January 2001 and March 2005 he did not commit any criminal offences in Poland nor did he breach any conditions imposed on him by a court He goes on to assert that when he left Poland in March 2005 there was no reason for him not to leave Poland and there was no condition placed on his suspended sentence that he should remain in Poland In paragraph 7 of the affidavit he refers to the work in Germany which I have already mentioned He then states that he was never informed of the decision made on the 19th May 2005 to enforce the sentence until he received the European arrest warrant He makes a bald denial that he committed the later offence and he also denies that he ever instructed any lawyer to appear in proceedings in relation to the second offence or any proceedings after he left Poland That is a summary of the facts and indeed of the conflict of facts I now want to refer to the relevant law I will start with the judgment of Peart J in this particular case He correctly points out that the only argument against the required order is the fled argument based on section 10 d of the Act of 2003 This is what the judge then had to say This point of objection must fail at the outset since in my view the respondent has failed to discharge the onus of rebutting the strong presumption that the issuing state will not seek the respondent s surrender in circumstances where he is not in breach of a condition of suspension attaching to the sentence imposed on the 15th January 2001 The respondent has simply asserted that he left Poland only to seek work and not in breach of conditions imposed While he has stated that his then lawyer is deceased it does not follow that the information as to the nature of the conditions imposed upon him could not be obtained from the Court which sentenced him and in my view it does not prevent him from obtaining assistance from some other lawyer in Poland in order to gather the necessary information to assist him in satisfying this Court that no conditions were breached by him by leaving Poland and coming to this State The learned High Court judge then goes on to point out there is in general an obligation on this State to surrender persons the subject of European arrest warrants unless very clear circumstances and facts are shown to exist why such an order should not be made He further opined that the court could safely assume that an issuing state acts in good faith in these matters and it follows that there is a heavy onus upon any respondent who raises a point of objection to support that objection by cogent evidence Mere assertion cannot be sufficient To conclude otherwise would lead to a situation where the aims and objectives of the Framework Decision would be undermined and set at nought simply by unsubstantiated assertions made on affidavit by a respondent I believe this court should endorse that statement of principle which seems to me to be entirely sound In due course I will be explaining why I entirely agree with the learned High Court judge that the order sought by the respondent i e the surrender of the appellant should be granted I would go somewhat further that Peart J in my interpretation of the evidence produced by the Polish authorities The learned High Court judge finally in his judgment distinguishes the case from the case heavily relied on by the appellant both in that court and in this court i e Minister for Justice Equality and Law Reform v Tobin cited above That was a case where he himself refused the order on the basis that the person sought had not fled within the meaning of section 10 and that decision was upheld by this court But as he points out it was based on the very particular facts of that case and as he further points out It was clear that the respondent had breached no law or obligation imposed upon him by the Court in Hungary It was clear that the Court in Hungary accepted that this was so The onus of proving that situation was discharged by that respondent in a way which has not been done in any way in the present case I turn now to consider in more detail the Tobin case There is absolutely no doubt both Peart J in the High Court and Fennelly J who delivered the judgment with which the other members of the Supreme Court agreed in that case were regarding the facts of that particular case as being very special and so indeed they were Perhaps the simplest approach to take to it is that Mr Tobin well and truly discharged the onus upon him required to resist the surrender as indicated by Peart J in this particular case The following two paragraphs on page 71 of the judgment of Fennelly J confusingly doubly numbered as 31 and 32 on the one hand and 28 and 29 on the other respectively are worth quoting The regularity of the procedure whereby the respondent left Hungary is confirmed in several documents notably the arrest warrant itself which contains the following Pursuant to section 586 1 of Act XVIV of 1998 on the Hungarian Criminal Code in cases where the accused lives abroad bail may be deposited upon his request with the permission of the prosecutor prior to the submission of the indictment and after it with the permission of the court In such a case the proceedings may take place in absentia The document continues by referring to provisions where the accused person has followed this procedure for serving documents on the legal representatives of the accused The Hungarian Ministry of Justice informed the applicant in a letter that the reason why Mr Tobin was not present during the trial was because he laid a deposit of 500 000 HUF at the court The principal consequence for the respondent of his having availed of this procedure was that although he had been tried in absentia there could be no retrial if he returned to Hungary For present purposes however the pursuit of this procedure mainly demonstrates that the respondent left Hungary with the full authority and approval of the Hungarian prosecutor and of the court I think that the citation of those two paragraphs alone demonstrates the special facts on which the Tobin case was based There was not a fleeing from justice at the relevant time rather there was a departure from Hungary with the consent of the authorities that there need be no return for the trial The money deposit that had to be paid of course was paid The Tobin case came to be considered by this court again in Minister for Justice Equality and Law Reform v Sliczynski 2008 IESC 73 unreported with judgments by Murray C J and Macken J both with the concurrence of Finnegan J There were other important matters to be considered in that case but the fleeing issue did arise Murray C J in his judgment endorsed the more detailed treatment of the subject by Macken J in her judgment The Chief Justice particularly laid stress on the fact that the parties sought to be surrendered in that case had already been sentenced in the form of a number of suspended sentences subject to various conditions of which he was in breach It is clear from that that the High Court judge who was also Peart J was entitled to conclude from the evidence and material before him that a suspension of the sentences of imprisonment was removed by the reason of the breaches of the conditions of suspension which occurred before the appellant had left Poland and indeed by the very act of leaving Poland itself Murray C J went on to further agree with Macken J that while the subjective reasons given by a person such as the appellant for leaving the issuing state and coming to Ireland in this case that he wanted to make a better life for himself may be taken into account within the context of the facts and circumstances of the case as a whole the appellant having already been the subject of three separate terms of imprisonment albeit suspended was placed under certain judicial constraints a breach of which would or could lead to an order requiring him to serve those sentences As Macken J also points out the courts must also look at the objective circumstances in which a person such as the appellant left the country in question I am satisfied that on the evidence before him the learned trial judge was entitled to be satisfied that in leaving Poland the appellant was seeking to evade the consequences of the three sentences which had been imposed on him prior to leaving Poland and therefore to conclude that he had fled within the meaning of the section the jurisdiction which imposes the sentences Macken J with whose views as I have already indicated Murray C J agreed said the following in her judgment It is true that as with other sections of the Act of 2003 this subsection i e section 10 d of the Act of 2003 as inserted by section 71 of the Criminal Justice Terrorist Offences Act 2005 is not quite as fully worded as one would wish It might have included whether or not the sentence had been at some time suspended for example but it does not However I am not at all convinced

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  • The second named appellant is the editor of the Irish Times As recorded in the judgment of this Court the first named appellant informed the Tribunal that he could not produce the letter Following receipt of the order of the Tribunal of 25th September 2006 and a meeting with legal advisors the second named appellant in order to protect journalistic sources had requested that he destroy any document in his possession concerning the newspaper story and that he had done so He agreed with this decision The second named appellant destroyed copies of the documents in her own possession This deliberate act of destruction of evidence for reasons explained in the judgment of this Court deprived the Tribunal of the possibility of conducting any meaningful inquiry into the source of the leaked letter The High Court described this as an outstanding and a flagrant disregard of the rule of law It said that In so doing the defendants cast themselves as the adjudicators of the proper balance to be struck between the rights and interests of all concerned The High Court added It need hardly be said that such a manner of proceeding is anathema to the rule of law and an affront to democratic order If tolerated it is the surest way to anarchy The judgment of this Court said the appellants had cast themselves as the adjudicators of the proper balance to be struck between the rights and interests concerned It said The unilateral decision of a journalist to destroy evidence with intent to deprive the courts of jurisdiction is as the High Court has held designed to subvert the rule of law The Courts cannot shirk their duty to penalise journalists who refuse to answer questions legitimately and lawfully put to them The appellants succeeded in their appeal because the Court held that the High Court had not correctly struck the balance between the journalistic privilege derived from the exercise of the right to freedom of expression of the appellants and the public interest of the Tribunal in tracing the source of the leak The appellants having succeeded in their appeal seek the costs of the appeal and of the hearing in the High Court Counsel relies on Order 99 of the Rules of the Superior Courts particularly the principle that costs should unless otherwise ordered follow the event Order 99 rule 1 3 Counsel for the Tribunal counters by also asking for costs in both courts He relies especially on the acts of the appellants in destroying the document which was or would have been crucial to the Tribunal s inquiry This Court per Fennelly J dealt with the matter as follows I do not disagree with the language used by the High Court in reference to the deliberate destruction by the appellants of the very documents that were at the core of the enquiry Nonetheless I have to accept that the issue is not whether that act was a wrongful one and deserving of the

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  • be habitually resident in Australia she had not become so in Ireland The learned judge also found that the time spent in Ireland was certainly not appreciable The issue which the court had to determine he said was whether there existed a joint settled intention that the child should not return to Australia at least in the foreseeable future and instead should take up residence in Ireland The learned trial judge found that the evidence had not established even this stating The unilateral intent of one parent does not establish a joint settled intention There is evidence that the hope and aspiration of the respondent was that she would return to Ireland She may well have hoped that the applicant would join her in this intention But looked at objectively I think the evidence only establishes that the applicant was simply prepared in the colloquial sense to give it a go in Ireland but that at no time did he abandon his long term intention to reside in Australia He did not break his ties with that country He did not give up his job completely or resign from it Both parties retained some at least of their household goods in Australia although they bought others here Insofar as there was a joint common intention the parties may have agreed that they would not live in Australia for a significant period but this does not establish that they intended to set up a joint residence in Ireland on a continuous basis Certainly the material does not establish that they resided here in such a manner as to be settled He found on the above conclusions that the habitual residence of the child at the relevant date was New South Wales The Appeal The appellant filed an amended Notice of Appeal against the judgment of the learned High Court judge and the Order made thereon on a very significant number of grounds Having regard to the manner in which the argument on appeal was refined during the hearing the following appear to be the relevant grounds 5 That the learned trial judge erred in law and in fact in holding in all the circumstances of the case that Australia was the place of the habitual residence of the child herein 6 The learned trial judge erred in law and in fact in holding that it was necessary to establish an Irish habitual residence in order to satisfy the provisions of Article 3 of the Convention and he further erred in law and in fact in failing to address the evidence in relation to the loss of Australian habitual residence 7 The learned trial judge failed in law and in fact in holding that notwithstanding his findings that the parties intended to leave Australia for a significant period and his findings that they intended to live in Ireland for approximately one year that the child retained her Australian habitual residence and or had not acquired an Irish habitual residence 8 The learned trial judge erred in law and in fact in holding that it was necessary to establish an intention to abandon long term residence in Australia in order for habitual residence to be lost or changed 9 Insofar as the learned trial judge found that it was necessary to establish an intention to reside in Ireland on a continuous basis in order to establish habitual residence in this jurisdiction he erred in law and in fact and he further so erred in failing to find that there was no intention to reside in Ireland on a continuous basis 10 11 To the extent that the learned trial judge made findings that the parties were not here for a sufficient period to change habitual residence he erred in law and in fact 12 That the learned trial judge erred in law and in fact in holding that the respondent herein had not given consent to the child remaining in Ireland having regard to all the circumstances of the case 13 The learned trial judge erred in law and in fact in failing to make a finding in relation to consent prior to the parties coming to Ireland as required by the Convention 14 Insofar as the learned trial judge held that the appropriate date for determining consent is the date on which the applicant changed his mind he erred in law and in fact 15 As mentioned earlier in the judgment the learned High Court judge found that the consent of the applicant to the retention of R in Ireland had not been established by the appellant In view of the findings which I make in relation to the issue of habitual residence it is appropriate that I deal with the issue of consent to the extent necessary at the end of my findings on the issue of habitual residence The Appellant s Submissions Detailed written submissions were filed by both parties In those of the appellant it is contended inter alia that the findings of fact made by the learned trial judge in respect of the joint settled intention of the parties the findings in relation to the loss of an Australian habitual residence and the findings in relation to the acquisition of an Irish habitual residence are often inconsistent with each other Although criticism of alleged inconsistencies in the learned trial judge s judgment or even of his findings of fact formed part of the above extensive grounds of appeal as addressed in detail in the written submissions it became clear during the course of the hearing that the real argument on behalf of the appellant was that even accepting all of the findings of fact are pursuant to the judgment in Hay v O Grady 1992 1 I R 210 binding on this court the learned trial judge had erred in law in the conclusions which he drew from those facts because he had failed to apply the correct legal test to them Rather he had applied an incorrect test in several different respects wrongly finding in consequence that R was habitually resident in Australia and had not acquired an habitual residence in Ireland At the hearing counsel for the appellant contended that on a correct application of the law the parents of R having abandoned their habitual residence in Australia it was not necessary to establish an habitual residence in Ireland to satisfy Article 3 of the Convention Counsel also argued that on a correct application of all the established legal tests the child was in fact habitually resident in Ireland at the relevant date In essence the appellant s argument is to the following effect a there is no requirement in law as the High Court judge appeared to have found that in order to acquire habitual residence in a different country habitual residence in the first country in this case Australia must have been abandoned b it is perfectly permissible in law that a child might have no habitual residence even if an original habitual residence has been abandoned and a new one has not yet been acquired c it is sufficient in order to acquire a new habitual residence if in the case of a small child the parents of that child had a settled intention to leave the first country and a joint settled intention to reside in the second country in this case Ireland for an appreciable period d the appropriate period of time required to give rise to habitual residence in the new country may vary but does not have to be of a permanent nature nor of a long term continuous nature as was wrongly found by the learned High Court judge but only requires to be appreciable e in the present case the parents had decided to leave Australia to come to reside in Ireland and had thereby abandoned their Australian habitual residence f they had on the findings of fact of the learned High Court judge decided to remain in Ireland for a period of approximately one year g the period in question was sufficient to satisfy the test of an appreciable period of time which could on the case law be as little as one month h the applicant having given his consent to that arrangement was not permitted in law subsequently to withdraw that consent In support of the foregoing Ms O Toole senior counsel for the appellant invoked Irish case law as well as case law from the United Kingdom and from Australia The Applicant s Submissions On behalf of the applicant senior counsel Mr Corrigan also accepted the findings of fact on the part of the learned High Court judge and invoked Hay v O Grady supra for the purposes of contending that this court should not save in very exceptional circumstances which do not arise here set aside or otherwise interfere with those findings Further he argued that the learned High Court judge had had the benefit of seeing the witnesses cross examined on their affidavits of assessing their demeanour and of coming to a view as to where the truth lay in the case of conflicting evidence This court should not on that ground also interfere with the learned trial judge s findings of fact Counsel on behalf of the applicant argues that the appropriate jurisprudence had been invoked and applied in the course of the judgment to the findings of fact and to the conclusions in law which the learned High Court judge reached including established Irish case law which relied in part at least on English case law and there were in effect no grounds upon which this Court should overturn any part of the judgment of the High Court In particular counsel argued that case law clearly establishes that while it was possible to find that an original habitual residence might be abandoned over a very short period of time acquiring a new habitual residence usually takes considerably longer and the jurisprudence makes it clear that a court should lean against leaving a child with no habitual residence Therefore unless there was very clear evidence and he argues there is none that R was in fact habitually resident in Ireland at the date upon which the appellant made it clear she would not return R to Australia or refused to allow R to exercise his joint custody rights this court should not set aside the finding that R was then habitually resident in Australia Further there was ample evidence upon which the learned High Court judge could conclude that the joint settled intention required in law to establish that R was habitually resident in Ireland did not exist because the residence in Ireland was so conditional Similarly no appreciable period of time had in fact elapsed at the relevant date sufficient to establish an habitual residence in Ireland Conclusions I do not find it necessary to cite the passages in the case law relied upon by either counsel because I propose to deal with those I consider of particular relevance as part of my own findings to which I now turn Before doing so I want to emphasise two matters The first is self evident It is not possible for very small children to explain or give any indication of their views as to where they may wish to reside or with whom The older a child grows the more facility there is to take into account the views of such a child in order to determine where he she was is or may be habitually resident and as a separate matter where he she wishes to reside and or with whom The Convention itself does not define habitual residence That of a small child being utterly reliant on parents in relation to its place of residence is ipso facto dependent in turn on assessing the parents movements actions and intentions so as to ascertain therefrom their habitual residence and therefore except in what must be very rare cases indeed where the child s habitual residence also is This is well established in the jurisprudence and in any event is clearly a matter of common sense Secondly it is important to bear in mind that the provisions of the Convention under consideration in this appeal are not those intended to regulate the making of final decisions as to whether a child is better suited to being with one parent or another or in what jurisdiction save in exceptional circumstances not arising here In an ideal world a child would reside with both parents especially in circumstances where both parties have joint custody and evince a keen interest in the child as the learned High Court judge found to be the case here These Convention provisions concern assessing by reference to habitual residence which is the appropriate jurisdiction in which such matters ought to be determined Any decision by this court therefore on the question of habitual residence is not a decision by which the future of the child is being determined but rather a preliminary jurisdictional step in that procedure In difficult cases where parents have been unable to agree on such matters as here and a court is instead obliged to make that determination it is axiomatic that the wish or hope of one or other parent may have to be rejected applying the appropriate established principles of law to the facts and that in any such cases of parental interest in the child by both parties the decision of the court will be difficult not only for one or other parent but may also impact on the child At the time of the High Court proceedings and at the time of the delivery of this judgment R lives with her mother in Cork The applicant her father returned to Australia in January 2009 but attended court for the hearing of his application in the High Court and of the appeal in this Court The High Court has jurisdiction pursuant to the Act of 1991 to make such orders as are provided for by the Convention Its principal purpose has been set out at the commencement of this judgment and it is clear from the recitals that these are to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence as well as to secure protection for rights of access The Hague Convention has a wide scope Article 4 reads as follows The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights The Convention shall cease to apply when the child attains the age of 16 years In view of the foregoing the establishment of the place of the habitual residence of the child at the date immediately before any breach has occurred is fundamental I agree that the breach occurred as the learned High Court judge found at the date when the appellant refused to permit the applicant to exercise his custody rights or in the alternative when the applicant left Ireland alone Both events occurred in January 2009 No issue has arisen before this court concerning the applicant s right to joint custody of R Where as here it is alleged there was a breach of rights of custody in or around the above two possible dates it was for the applicant to establish that immediately prior to those dates R was habitually resident in Australia and was not habitually resident in Ireland The High Court found that she was habitually resident in Australia The appellant must establish in this Court that this finding was wrong in law The Case Law The Convention does not define habitual residence and lays down no specific requirements or criteria as to how this is to be established From a reading of the case law it is evident that the principles applicable to such cases have developed considerably although recent English case law still invokes judgments from the 1980s and early 1990s As to the importance of courts considering and following in appropriate cases the case law of other jurisdictions on the interpretation and application of the Hague Convention I adopt with approval the following passage of Fennelly J from his judgment in PAS v AFS 2005 I I L R M 306 at 314 They should endeavour as far as possible to interpret the Hague Convention harmoniously with the interpretation adopted by the courts of other contracting states In practice that means that we should try to follow those decisions The convention is an international agreement designed to resolve situations of personal conflict and the principle of comity and mutual trust between jurisdictions is of prime importance Against this it has to be recalled that by universal accord the issue of habitual residence is essentially one of fact Having considered further extracts from existing Irish case law Fennelly J then analysed the changes which had taken place as the jurisprudence evolved in the principles to be adopted and applied which have been accepted as requiring to be more fluid or to be more adaptable to the many varieties of circumstances in which family life now exists or in which children find themselves embroiled It is for example well established that habitual residence is not a legal term of art but rather is a matter of fact to be decided on the facts established in a particular case In PAS v AFS supra Fennelly J in placing the issue of habitual residence in its real living context stated The Convention deliberately left the notion of habitual residence undefined The courts of the Contracting States have to be free to apply it to the facts having considered all the circumstances of the case Human situations are infinitely variable Habitual residence will be perfectly obvious in the great majority of cases It is an obvious fact that a new born child is incapable of making its own choices as to residence or anything else What the courts have to look at is the situation of the parents and their choices Where the child has for a substantial period been resident in one country with both its parents while they are in a stable relationship particularly if they are of the same nationality the answer will usually be fairly obvious This is the normal state of affairs described in a passage from a judgment in one English case which has been widely quoted cited in the High Court judgment and relied on by the Applicant Waite J in Re B Minors Abduction No 2 1993 1 F L R 993 at page 995 stated 1 The habitual residence of young children of parents who are living together is the same as the habitual residence of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court 2 Habitual residence is a term referring when it is applied in the context of married parents living together to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or of long duration 3 All that the law requires for a settled purpose is that the parents shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled 4 Although habitual residence can be lost in a single day for example upon departure from the initial abode with no intention of returning the assumption of habitual residence requires an appreciable period of time and a settled intention Logic would suggest that provided the purpose is settled the period of habitation need not be long emphasis added I would agree with this extract and believe it correctly and appropriately responds to the objectives of the Hague Convention where it fits the facts in a particular case It will be seen that it envisages two related requirements where a move is for settled purposes as part of the regular order of their life and where the assumption of habitual residence requires an appreciable period of time and a settled intention I consider however that the principles of law stated by Waite J in the above case are not wholly apt to be applied in their entirety to the facts in the present case for the reasons I will explain later in the judgment and which concern the phrase adopted voluntarily and for a settled purpose as applied in the case law In that regard I think it useful to look at the case which Waite J in turn cited it being the source of the widely quoted extract adopted by Fennelly J in PAS v AFS supra It is a citation from the judgment of Scarman L in a rather old case of R v Barnet London Borough Council ex parte Shah 1983 2 AC 309 In that case in a different context to the Convention he found the words ordinarily resident should be given their ordinary and natural meaning Scarman L stating Unless therefore it can be shown that the statutory framework or the legal context in which the words are used requires a different interpretation I unhesitatingly subscribe the view that ordinarily resident refers to a man s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being whether of short or of long duration emphasis added Scarman L however then explained in the above case what he meant by ordinarily resident in the following two additional statements in the same case All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled and For if there be proved a regular habitual mode of life in a particular place the continuity of which has persisted despite temporary absences ordinary residence is established provided only it is adopted voluntarily and for a settled purpose The statements of Scarman L in the above case have been adopted more or less continuously since they were made by the English courts especially the Court of Appeal In a later case it held that the words ordinarily resident should be accepted as being no different to habitually resident In Mark v Mark 2006 I A C 98 it was stated that it was common ground that habitual residence and ordinary residence were interchangeable concepts That case concerned the question of jurisdiction under the Domicile and Matrimonial Proceedings Act 1973 Further in the very recent case Re P J Children 2009 EWCA 588 the English Court of Appeal in considering the case law cited in Mark v Mark supra stated as this case also involves a question of jurisdiction this time under the Hague Convention there can for present purposes be no difference in the core meaning to be given to the two phrases Having reviewed a large number of Hague Convention cases it reiterated the test set out by Scarman L in the above citation Ward LJ going to far as to say that If I am to stand back to review his findings I think it helpful to look at Shah in a little more detail because Shah tells judges nearly all they need to know The appellant relies on the case of Re K Abduction Consent 1997 2 F L R 212 in support of the argument that the applicant having consented to the bringing of R to Ireland from Australia he was not at any time subsequently entitled to withdraw his consent in circumstances counsel argues not dissimilar to those arising in the present case since the mother of the child in the latter case had made it clear that there was only a 50 50 chance of her returning to the United States It does not however seem to me that this is a case which is in reality helpful on the issue of determining the habitual residence of a child and moreover for the reason which I mention below in relation to the separate issue of consent I do not consider it to be of assistance to the appellant Counsel for the appellant also relies on the decision in Re R Abduction Habitual Residence 2004 1 F L R 216 another decision of the English courts for the purpose of arguing that habitual residence can be acquired in a very short period of time It is suggested that this case has a resonance with the facts and issues which have arisen in the present proceedings Briefly the parties were born respectively in the United Kingdom and Australia had married and lived in London and had one very young child As part of his employment the father was sent to Germany where the parents rented accommodation having put their belongings including personal items in storage in London The father s contract of employment in Germany was subject to English law his salary was in Sterling and holidays included English bank holidays The mother of the child with the father s consent travelled to Australia and was due to return within a short time on the 6th March 2003 but the mother sought to stay until the 17th March 2003 for the birthday party of a relative The father refused to agree to this extension and instructed lawyers to write to the mother seeking the child s return The mother and child did not return from Australia to London until the 22nd March 2003 and the father applied for orders for the child s return to Germany pursuant to the Hague Convention Against that factual background it was found that the child was habitually resident in Germany and her return there was ordered Munby J stating The test for habitual residence is whether the residence was for a settled purpose which might be either a purpose of short duration or conditional upon future events The test is not that one does not loose one s habitual residence in a particular country absent a settled intention not to return there This comes perilously close to confusing the question of habitual residence with the question of domicile and is contrary to the authorities The question of habitual residence is to be determined in accordance with English domestic law by reference to the authorities and cannot be affected by the evidence of German law The decision would not be affected even by the decision of the German court to a different effect emphasis added Subject to my reservation concerning the breadth of the last two sentences in respect of which I consider the above statement of Fennelly J in PAS v AS supra on the issue of the harmonious interpretation of the Convention based on the important principle of comity and mutual trust between jurisdictions more compelling I consider that the above statement of Munby J to be helpful In applying the appropriate principles which Munby J considered were correctly set out in the case of Al Habtoor v Fotheringham 2001 1 F L R 951 he found that the family s residence in Germany was for a settled purpose even if of short duration On a reading of the decision this is clear because at paragraph 49 of the judgment he states Was this family s residence in Germany for a settled purpose albeit a purpose of short duration That is the test identified by Thorpe L J in the passage I have referred to The answer in my judgment is that this family was living in Germany for a settled purpose that is to say for the settled purpose of enabling the father to fulfil that albeit short term assignment by his employers Although Munby J found favour with large portions of the evidence given by the mother in that case which absent the above settled purpose would I believe have led him to find that the child was habitually resident in England the test applicable in the particular circumstances of that case as he stated led him to be driven to the conclusion despite his other findings of fact that the habitual place of residence of the child was Germany The authority which he felt compelled to follow is the case of Al Habtoor v Fotheringham 2001 1 F L R 951 I now turn to that case which again considered the issue of a settled purpose adopted voluntarily This case involved an extreme set of circumstances A mother a United Kingdom citizen and a father a Dubai citizen had become romantically involved some years previously in England The mother s affair with the father ended after she discovered her pregnancy and having given birth without the natural father s involvement she registered her son in the name inter alia of the father In the following year she met Mr Fotheringham They subsequently married and had a son In 1995 the mother and her then husband joined in the adoption of her son by his natural Dubai father without any notice to the natural father In 1997 their second child was born In 1998 the mother decided to approach the natural father and in correspondence to him explained that the time had come to inform their son of his background the child being about 10 at that time and asking questions about this She asked whether the natural father would be prepared to have contact with him He responded positively and solicitors were instructed to discuss arrangements for contact and financial support The father belongs to an extremely affluent Dubai family and the judgment recorded that he would plainly have been in a position to provide material benefits that neither the mother nor her husband could The child s first meeting with his father took place in May 1999 shortly before paternity was confirmed In the father s family his own father exercised overall financial control He has a luxurious home in England and during the summer of 1999 the mother her husband and the child spent a number of weekends as his guests An agreement developed for the Fotheringham family to relocate to Dubai under the grandfather s auspices and at his expense He would provide a house a car a job for the husband schooling for all the children and medical expenses In preparation for the move the mother and her husband executed a change of name deed for the child to his Arabic name and a British passport was issued to him in his new names The judgment makes it clear that the child in his new name went to Dubai and his adoptive father signed an employment contract as a PE teacher in Dubai The family mother adoptive father and the other two children arrived in Dubai initially on visitors visas to commence an entirely new life there In order to secure a position in Dubai as a working expatriate family however both entry and residence permits were necessary The son was granted a residence visa Some time later his natural father obtained a United Arab Emirates passport for him On the same day an entry permit was issued to the adoptive father and shortly thereafter the mother at the natural father s request visited the local court and executed a power of attorney to enable land to be purchased in Dubai in their son s name Since it is not open to expatriates to own real property in the Emirates the child s status as an Emirati enabled a home to be acquired in his name This was for the family to live in with him In the same week an employment contract was given to the adoptive father at a hotel owned by the natural father s family The intended teaching job never materialised and his post at the hotel was designated administrative supervisor although it seems he was to act as assistant recreation manager The duration of that agreement was unlimited as from 2 10 1999 His employer then applied for a residency permit which issued in October 1999 and was not due to expire until October 2002 He thereupon sponsored an entry permit for the mother and their own two children leading to the grant of residence visas to the entire family Difficulties arose quite shortly afterwards in relation to the living conditions and other matters from the point of view of the adoptive father and the mother Exchanges about these took place with the family of the natural father It is not necessary to go through the entire of the details which were troubling and difficult for the family of the child The events as they occurred led to the loss by the mother of custody and even access to the young child and to orders being made by the courts in Dubai as to his future on the application of his natural father The Court of Appeal determined that the matter of habitual residence was to be determined by reference to the facts in the case in question Thorpe L J stating as follows Turning to the case law defining habitual residence there is little room for disputing a number of relatively straightforward propositions First the determination of a persons habitual residence is a question of fact to be decided by reference to all the circumstances of the case As Lord Scarman classically stated in R v Barnet London Borough Council Ex Parte Shah 1983 2 AC 309 at 343 Habitual residence refers to a man s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being whether of short or long duration emphasis added In his speech Lord Scarman added All that the law requires is that there is a settled purpose This is not to say that the propositus intends to stay where he is indefinitely indeed his purpose whilst settled may be for a limited period Secondly there is an important distinction between the loss of an habitual residence and the acquisition of a substitute A person may cease to be habitually resident in a single day if he quits the country with a settled intention not to return but to take up habitual residence elsewhere By contrast habitual residence in the second country is not acquired on arrival but only after a period that demonstrates that the residence has become habitual and is likely to continue to be habitual depending upon the relevant facts and circumstances The period of residence after arrival may be brief but it still must be appreciable These propositions are clearly established by the decisions in Re J Abduction Custody Rights 1990 2 AC 562 and Nessa v Chief Adjudication Officer 1999 1WLR 1937 emphasis added In that case having analysed the evidence before the High Court and having found that the Fotheringham family had for stated reasons lost their habitual residence in England the Thorpe L J concluded I conclude that the judge s factual appraisal was insufficiently balanced and further that she misdirected herself in asking whether the family had settled in Dubai in the sense of putting down substantial roots In my opinion the evidence as a whole demonstrated the acquisition of habitual residence in Dubai between the date of arrival in September and the breakdown of relationships between the families on or about 22 December The former citation from this case is that which Waite J in Re B Minors Abduction supra adopted and which was in turn approved by Fennelly J in PAS v AFS supra In the very recent decision Re P J Children supra the Court of Appeal reviewed a

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  • the person to whom a property is alleged to have been fraudulently sold A signed statement is also attributed to the second named appellant in which she refers to a criminal complaint filed by Mr Coca Radu against me and my husband According to the affidavit of a translator filed on behalf of the appellants this should read complaint The word criminal does not appear in the original Romanian version 15 The first named appellant in a replying affidavit swore that the typed document purporting to be his statement was not made by him that the signature was not his that he had never been questioned in relation to these matters by anyone in Romania and had never made a statement The second named defendant does not deny the authenticity of the document attributed to her She says that it was made by her when she was called to speak to a prosecutor in the spring of 2000 She says that she was questioned in relation to the conduct of the judge mentioned above and others who worked for her In effect she denies that she was aware of any investigation of a criminal nature The first named appellant does not say whether he was aware that his wife was interviewed by the prosecutor 16 Peart J rejected the submission that the appellants had not fled from Romania In doing so he distinguished the Tobin case saying that the facts did not go anywhere near the state of proof found to exist in the Tobin case where there was very clear evidence that the respondent was entitled under the laws applicable in Hungary to depart that country when he did He also held on reconsideration of the view he had expressed in Tobin that it was not necessary for the application of section 10 that the sentences should have to have been imposed on the appellants before they left Romania Having reviewed the warrants and the affidavits he held that the appellants had failed to discharge the onus of proof which rested upon them He referred in particular to the statements furnished by the Romanian authorities and allegedly made by each of the appellants to the prosecutor 17 With regard to the argument based on section 45 the learned judge in reliance on the statements in the warrants held that the appellants were not entitled to contest that they had been notified of the time and place of their trial Hence no undertaking was required pursuant to this section Alternatively he held also in reliance upon the warrants that it is clear that the respondents were entitled to apply for a retrial upon surrender and that it was to be presumed that an opportunity for doing so would be afforded to them 18 The learned trial judge rejected summarily and in limine the argument based on family rights No authority had been put forward in support of this claim and he concluded It is nowhere contemplated that such circumstances could prevent an order of surrender or extradition being made The argument that the appellants did not flee from Romania 19 The appellants argue principally that on the authority of the decision of this court in Minister for Justice Equality and Law Reform v Tobin cited above and on the facts they cannot be held to have fled from Romania Thus they cannot be surrendered pursuant to section 10 of the Act of 2003 There is a subsidiary argument that they cannot lawfully be surrendered because they left Romania prior to the imposition of sentence and that the provisions for surrender for service of a sentence apply only where flight takes place after imposition of sentence 20 The suggestion that in order for a person to be surrendered to an issuing state to serve a sentence imposed upon him that sentence must have been imposed prior to his leaving that state arises from a comment made obiter by Peart J in the Tobin case Without deciding the question finally I expressed doubt in my judgment in the same case as to whether this view was correct It appeared to me then and still appears to me that it suffices for the sentence to have been imposed at the time when the surrender of the person is sought Section 10 of the act of 2003 as amended by section 71 of the Criminal Justice Terrorist Offences Act 2005 applies inter alia to a person on whom a sentence of imprisonment has been imposed and who fled from the issuing state before he or she commenced serving that sentence In the present case both appellants left Romania in August 2000 The sentences were imposed in 2005 Thus they left Romania before they had commenced serving the sentences Nothing in the section requires that the sentence have been imposed prior to the person leaving the issuing state Such an interpretation would not be in accordance either with common sense or with the purpose of the European arrest warrant system Subparagraph a applies where the state intends to bring proceedings against a person subparagraph b applies where the person is the subject of proceedings subparagraph c applies where a person has been convicted but not yet sentenced The interpretation advanced by the appellants would leave an obvious and pointless gap 21 Nonetheless the appellants contend that on the evidence they did not flee when they left Romania in August 2000 I can say at once that the facts of these cases in no way resemble those in Tobin where a criminal prosecution had been commenced in Hungary The respondent obtained the leave of the Hungarian court to leave the jurisdiction pursuant to an explicit provision of Hungarian law In accordance with that procedure orders were made by the responsible court and his passport was released to him He also he made a substantial deposit in Hungarian currency Nothing of the sort occurred in the present case The appellants do not claim to have sought any form of approval from the Romanian authorities 22 Nonetheless it remains necessary to decide whether on the facts of this case the appellants fled In my judgment in Tobin with which the other members of the Court agreed I said at page 72 Fleeing necessarily implies escape haste evasion the notion of moving away from a pursuer 23 In the circumstances of the present case everything seems to depend on whether each appellant was aware that there was a criminal investigation afoot involving him or her If an appellant knew that he or she was the subject matter of such enquiries I would have no doubt that the act of leaving the jurisdiction of Romania without some form of official approval would amount to flight As was stated by Murray C J in Minister for Justice Equality and Law Reform v Sliczynski 2008 IESC 73 expressing his agreement with the judgment of Macken J in that case the Courts must also look at the objective circumstances in which a person such as the appellant left the country in question Macken J discussed the correct approach to assessment of evidence on the issue as follows All of the factors germane to whether a person can be said to have fled must be taken into account That includes the motivation of the person sought to be returned to the requesting Member State which is almost inevitably likely to be a subjective motivation So also the court must take into account other material factors such as whether the sentence was suspended and where the suspension of the sentence was subject to terms whether those terms were known to the convicted person and whether those terms were complied with The court then must determine whether objectively speaking bearing in mind all of these factors it can be reasonably concluded that the appellant fled within the meaning of the subjection If it were the case that the subjective motivation as averred to on affidavit had to be accepted as being conclusive of the question whether a person fled within the meaning of the section it seems to me that this would always or almost always trump any information or material factor presented to the Court and upon which it could be objectively found that a person had fled the requesting state Each appellant has been at pains on affidavit to distance him or herself from knowledge of or involvement in any criminal investigation Whether or not the appellants fled Romania thus resolves itself into a question of fact The key question in each case is whether the person was aware of the criminal investigation proceeding in Romania 24 Section 10 of the Act of 2003 as substituted by section 71 of the Criminal Justice Terrorist Offences Act 2005 provides 10 Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person a against whom that state intends to bring proceedings for an offence to which the European arrest warrant relates b who is the subject of proceedings in that state for an offence to which the European arrest warrant relates c who has been convicted of but not yet sentenced in respect of an offence to which the European arrest warrant relates or d on whom a sentence of imprisonment or detention has been imposed in respect of an offence to which the European arrest warrant relates and who fled from the issuing state before he or she i commenced serving that sentence or ii completed serving that sentence that person shall subject to and in accordance with the provisions of this Act and the Framework Decision be arrested and surrendered to the issuing state It may be noted that section 6 of the Criminal Justice Miscellaneous Provisions Act 2009 has deleted with future effect the words in subparagraph d commencing with and who fled 25 Subject to compliance with its terms this section imposes an obligation to make the order for surrender That surrender is to take place in accordance in particular with the Framework Decision It is fundamental to the scheme of the Framework Decision that the European arrest warrant is a judicial decision issued by a Member State and that its execution falls to the courts of the executing Member State so that decisions on execution must be subject to sufficient controls Recital 8 Other Member States are obliged to execute it on the basis of the principle of mutual recognition Article 1 of the Framework Decision That principle is regarded by the European Council as the cornerstone of judicial cooperation Recital 6 Thus the balance is to be struck on the basis of a system of surrender between judicial authorities Recital 5 These principles must be borne in mind when assessing the evidence regarding the circumstances in which the appellants left Romania see also the judgment of Murray C J in Minister for Justice Equality and Law Reform v Sliczynski cited above 26 Section 20 of the Act of 2003 as amended by section 78 of the Act of 2005 enables either the High Court or the Central Authority as the case may be to require the issuing judicial authority to provide additional documentation or information to enable the Court to perform its functions That facility has been used in this case The Central Authority the Minister has obtained additional information from the Romanian judicial authority the Bucharest Court of Appeal via the Directorate of International Law and Treaties of the Ministry of Justice regarding the conduct of the criminal investigation in Romania and in particular the questioning of the appellants Macken J in her judgment in Minister for Justice Equality and Law Reform v Sliczynski cited above examined the mechanism for obtaining further information pursuant to section 20 subsections 1 and 2 She summarised their effect as follows In the relationship which may exist between the High Court and or the respondent pursuant to s 20 of the Act of 2003 and the issuing judicial authority exchanges such as those in the present case are in my view to be considered as operating on the same high level of confidence and mutual trust as explained by Murray C J in his judgment in Minister for Justice Equality and Law Reform v Altaravicius 2006 3 I R 148 since these exchanges between the judicial authorities constitute an integral part of the overall scheme of the European Arrest Warrant This must have as a consequence that when an issuing judicial authority is asked for additional information pursuant to either of the aforesaid subsections of s 20 the exchanges must be accorded the appropriate mutual respect In consequence it may be assumed that a reply furnished by the judicial authority of the requesting Member State has been fully and properly prepared by an appropriate responsible person and will include true and accurate responses to the information or documentation sought 27 In pursuance of section 20 the High Court was provided with a photocopy of a statement said to have been made by the first named appellant at the public prosecutor s office on 20th March 2000 and signed by him The document bears the stamp of the Public Prosecutor s Office The contents of this statement if true show that the first named appellant was being interviewed about the property transactions which later formed the subject matter of the prosecution In particular it gives an account of dealings between him and Mr Coca Radu elsewhere described as the complainant The second named appellant accepts the genuineness of the statement signed by her dated 11th April 2000 She agrees that she attended at the public prosecutor s office and that she made the statement That also gives an account of dealings with Mr Coca Radu We have an affidavit saying that the expression criminal complaint is a mistranslation and that the word criminal does not appear in the original Nonetheless the statement acknowledges that Mr Radu had made a complaint against her and makes reference to a number of financial transactions before concluding with a charge that Mr Radu had made the complaint out of feelings of hatred and revenge The statement also describes the first named appellant as having acted as an intermediary 28 The absolute denial by the first named appellant of any knowledge whatever of the criminal investigation and his repudiation of the written statement attributed to him can only mean that the Romanian judicial authorities have knowingly provided the High Court with a forged and fraudulent document According to Recital 10 to the Framework Decision the mechanism of the European arrest warrant is based on a high level of confidence between Member States It would require very clear evidence to show that an issuing judicial authority had behaved in the dishonest manner that is implicitly alleged The case of the second named appellant is even simpler It is quite clear that she was the subject of enquiries by the public prosecutor concerning the land transactions which formed the basis of the prosecution From that statement it appears that her husband was in some manner involved in those transactions The first named appellant has not said whether he was aware of the investigation in which his wife was involved It is clear that both appellants were at the relevant times living together as a family in Bucharest It seems likely that the first named appellant knew that his wife was questioned and about what subject matter 29 I would add that the credibility of both appellants must be in serious doubt by reason of the blatantly untruthful means by which they obtained visitor s visas to go to the United Kingdom 30 In short I am satisfied that the learned High Court judge was quite correct in rejecting the submission that the appellants had not fled Romania The first ground of appeal therefore fails Section 45 the undertaking regarding a retrial 31 In order to consider the second ground it is necessary to set out the terms of section 45 of the Act of 2003 which deals with cases such as the present of conviction in absentia It provides as follows 45 A person shall not be surrendered under this Act if a he or she was not present when he or she was tried for and convicted of the offence specified in the European arrest warrant and b i he or she was not notified of the time when and place at which he or she would be tried for the offence or ii he or she was not permitted to attend the trial in respect of the offence concerned unless the issuing judicial authority gives an undertaking in writing that the person will upon being surrendered i be retried for that offence or be given the opportunity of a retrial in respect of that offence ii be notified of the time when and place at which any retrial in respect of the offence concerned will take place and iii be permitted to be present when any such retrial takes place 32 This section applies to the appellants insofar as they were convicted when they were not present at their trial This is not in issue Furthermore if they or either of them was not notified of the time and place of the trial they cannot be surrendered unless the relevant undertaking has been given by the issuing judicial authority 33 The arrest warrant states that the first named appellant was personally summoned at all his known addresses and by display at the first district City Hall and 5th District City Hall The arrest warrant in her case states that the second named appellant has been summoned in person of the date and place of the hearing and was present at the first hearing 34 I do not think that in either case there is sufficient evidence of notification of the time and date of trial In the first case no personal

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  • 2005 and on the affidavit of Brian O Sullivan of the 11th June 2005 Mr O Sullivan is the Company secretary of the present plaintiff He says frankly that At the time of change of name in 1997 I thought nothing of the inclusion of the word Co in the title of the plaintiff Indeed when the article appeared in the Sunday Times and when proceedings were subsequently issued I understood the name of the plaintiff company was Sandy Lane Hotel Limited It was only when the issue was recently drawn to my attention that I recalled that the word Co had in fact been included in its title on the initiative of a Barbados lawyer as set out above He further says that The reason the error that is the alleged error in the name of the plaintiff occurred is that the inclusion of the word Co in the name of the plaintiff was not originally intended It may be noteworthy that in the written submissions of the plaintiff what they say is an error in the plaintiff s name in the title of the proceedings is called a clear case of an administrative error They go on to submit that the plaintiff in making the present applicant was not seeking to add a new party or to substitute a different party for the party who instituted the proceedings It was simply seeking to correct an error in the name of the plaintiff as appearing in the title of the proceedings this is not a case of the wrong plaintiff suing the defendant The proceedings were issued on behalf and with the instructions of Sandy Lane Hotel Co Limited through administrative inadvertence the plaintiff was named as Sandy Lane Hotel Limited in the title to the proceedings The plaintiffs then go on to characterise the defendant s opposition to the application as opportunistic They say as a matter of happenstance the plaintiff s parent has the name Sandy Lane Hotel Limited It is this happenstance that permits the defendants the opportunity to contend that the plaintiff ought to have applied for an order of substitution of one party for another as the plaintiff under Order 15 as opposed to Order 63 The Companies of course bear the names the consortium chose and altered when they pleased This is not happenstance The submissions quoted above in my view go to the nub of the case I am not sure that they are helpful to the plaintiff Order 63 Rule 1 15 which is a relief that may be granted ex parte by the Master relates to the correction of clerical errors or errors in the names of parties in any proceeding This is to be contrasted with Order 15 Rule 2 which provides Where an action has been commenced in the name of the wrong person as plaintiff or where it is doubtful whether it has been commenced in the name of the right plaintiff the court may if satisfied

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  • to the fact that originally there was a one year sentence in 2003 and seven months in 2005 and that this had ultimately become a combined sentence of one year and three months Counsel for the appellant submitted that there is no information on a the actual sentence for any of the offences individually b whether there was current or consecutive sentencing c the method or reason by which the sentence of one year and seven months became one year and three months d which offence or offences got the four months reduction and e in what way the one year sentence of 2003 relates to each of those offences or how the original seven months sentence related to the last two offences Counsel submitted that there was a lack of information and that the State had not availed of s 20 of the European Arrest Warrant Act 2003 to obtain additional documentation and information 10 The relevant portion of s 38 of the European Arrest Warrant Act 2003 provides 1 Subject to subsection 2 a person shall not be surrendered to an issuing state under this Act in respect of an offence unless a the offence corresponds to an offence under the law of the State and i under the law of the issuing state the offence is punishable by imprisonment or detention for a maximum period of not less than 12 months or ii a term of imprisonment or detention of not less than 4 months has been imposed on the person in respect of the offence in the issuing state and the person is required under the law of the issuing state to serve all or part of that term of imprisonment or 11 Section 38 1 a of the Act of 2003 requires that there be correspondence between the offences The High Court has found that the first second and fourth offences correspond The High Court found that the third offence a conviction of an act of forgery took place in Dublin i e outside the jurisdiction of the issuing state The High Court held that there was no equivalent offence in this jurisdiction and for that reason the third offence does not satisfy the requirement of correspondence under s 38 12 In addition to requiring correspondence s 38 of the Act of 2003 addresses two alternative situations Section 38 1 a i refers to a situation where a sentence has not yet been imposed for example where a person is sought to be prosecuted On the other hand s 38 1 a ii applies to a case where the appellant has been sentenced and he or she is sought to serve the sentence which arises in this case 13 The appellant is sought to serve a sentence in Lithuania It is not a series of separate sentences It is a composite sentence It is clear that as was submitted on behalf of the Minister for Justice Equality and Law Reform hereinafter referred to at the

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  • of the Treaty which do not satisfy the conditions of Article 81 3 of the Treaty shall be prohibited no prior decision to that effect being required 2 Agreements decisions and concerted practises caught by Article 81 1 of the Treaty which satisfy the conditions of Article 81 3 of the Treaty shall not be prohibited no prior decision to that effect being required By judgment delivered on 27th July 2006 the High Court McKechnie J dismissed the Competition Authority s application In the course of an extensive and detailed judgment the learned trial judge concluded that the BIDS arrangements did not fall under the prohibition contained in Article 81 1 EC He concluded that the BIDS arrangements did not have as their object the restriction of competition since they were not aimed at fixing prices sharing customers or limiting production The reduction of the total capacity was not to be regarded as a limitation of production He further concluded that the BIDS arrangements did not have as their effect the restriction of competition A 25 reduction of total capacity might in the view of the learned trial judge restrict competition only if it led to a capacity shortage which caused rising prices Because overall beef production in Ireland would not increase in future but would tend to decline even if total capacity were reduced by 25 it would ensure that all beef would be processed In addition prices were not expected to increase The levies would increase the processing costs incurred by the processors but it was felt that a price increase could be ruled out because the reduction of total capacity would result in economies of scale among stayers and the processors customers would have in any event strong negotiating power consisting as they do to a large degree of multiples with undisputed bargaining power The learned trial judge also concluded that the restrictions on use and disposal were not a restriction of competition While under present market conditions it was not economically feasible to construct new processing plants potential competitors could enter the market by purchasing other processing plants either from stayers or non members of BIDS He thus concluded that the BIDS agreements were not objectionable in such a way that they could be regarded as a restriction of competition by object The learned trial judge also addressed to a certain degree issues arising under Article 81 3 Having regard to his findings under Article 81 1 it is unsurprising that McKechnie J prefaced this latter portion of his judgment in the following manner Accordingly as the Competition Authority has failed to demonstrate by credible evidence that the objectionable features of the arrangements are likely as a matter of probability to have appreciable anti competitive effects this action must fail In such circumstances it is not strictly necessary to proceed and consider the arguments advanced under Article 81 3 However as the parties have made submissions in this regard I propose to set out in brief terms my views on the four requirements under that Article of the Treaty In so doing it must be appreciated that there is a certain degree of artificiality about this exercise as I have previously found that the agreements and decisions in question do not have anti competitive effects There then followed an analysis of the four cumulative conditions of Article 81 3 In relation to the first of those conditions the learned trial judge expressed himself satisfied that the arrangements did offer economic benefits and gains and that the requirement that the agreement must contribute to improving the production or distribution of goods or contribute to promoting technical or economic progress had been met In relation to the second requirement of Article 81 3 namely that the consumer must receive a fair share of the resulting benefits the learned trial judge concluded as follows it would be necessary to know with precision the size of the efficiency gains generated by this scheme as otherwise it is impossible to know or even to conduct an evaluation or review as to whether what is proposed to be passed on is or is not fair to consumers That when measured against anti competitive effects I therefore do not believe that the evidence given on behalf of the Society i e BIDS under this heading when looked at in the context of the evidence furnished with regard to efficiency gains is sufficient to discharge the onus of proof which is upon it in this regard It will be recalled that whereas the onus falls on a plaintiff to establish a breach of A 81 1 the onus of proof under A 81 3 falls on BIDS to establish that all four conditions therein have cumulatively been met The finding by the learned trial judge in respect of one of these four conditions namely that BIDS had failed to establish with precision how consumers would derive a fair share of the benefit resulting from the BIDS arrangements had the effect that in the hypothetical situation which the court was dealing with having regard to its findings under Article 81 1 BIDS would have lost the case on this solitary ground only The Competition Authority did not allege or contend that the arrangements would afford to the undertakings involved the possibility of eliminating competition in respect of a substantial part of the products in question That was therefore not an issue in the case The other requirement of Article 81 3 is that the restrictions complained of must be indispensable to the attainment of the pursued objectives The learned trial judge concluded that this objective was satisfied and expressly accepted the evidence adduced by BIDS economist in this regard The learned trial judge reached these particular conclusions having conducted a most detailed economic analysis which is apparent from a reading of the judgment He made numerous findings of fact which under the existing jurisdiction of this Court as elaborated in Hay v O Grady 1992 1 I R 210 are not open to challenge in this Court unless they are unsupported by the evidence or are findings unreasonably arrived at having regard to the evidence That does not preclude this Court from considering whether a trial judge drew incorrect inferences from his primary findings This Court however is slow to interfere with the findings of a court of first instance which is well qualified to assess cases arising in a specialised field in this case competition law and whose presiding judge has particular expertise in that subject Accordingly great weight must attach to the primary findings of the trial judge notably in relation to his economic analysis in the particular case THE APPEAL An appeal having been brought by both sides from the findings of McKechnie J this Court decided to make a reference to the European Court of Justice for a preliminary ruling under Article 234 EC on 8th March 2007 By its question this Court asked in essence whether agreements with features such as those of the BIDS arrangements are to be regarded by reason of their object alone as being anti competitive and thus prohibited by Article 81 1 EC or whether on the other hand it is necessary in order to reach such a conclusion first to demonstrate that such agreements may have anti competitive effects By its judgment delivered on 20th November 2008 the European Court of Justice Third Chamber ruled as follows An agreement with features such as those of the standard form of contract concluded between the 10 principal beef and veal processors in Ireland who are members of Beef Industry Development Society Ltd and requiring among other things a reduction of the order of 25 in processing capacity has as its object the prevention restriction or distortion of competition within the meaning of Article 81 1 EC In so holding the European Court of Justice nonetheless noted at par 39 of its judgment the fact that the agreement contained certain restrictions on goers while not such as to put in doubt the finding as to the anti competitive nature of the object of the BIDS arrangements might nonetheless remain relevant in the context and for the purposes of the examination of the four requirements which have to be met under Article 81 3 EC in order to escape the prohibition laid down by Article 81 1 EC The case was therefore returned to this Court for further consideration Helpfully in this context the parties to the litigation have agreed that the only issue now requiring determination is whether or not the BIDS arrangements can benefit from exemption pursuant to Article 81 3 EC Only three of the four conditions already enumerated are in issue as the Authority does not contend that the implementation of the BIDS arrangements would eliminate competition It will be recalled that the learned High Court judge held that the first third and fourth of the Article 81 3 conditions were satisfied but held that the second condition had not been satisfied The High Court judge s findings in relation to the first and third requirements contribution to improvement of production and indispensability respectively are the subject of appeal by the Competition Authority The learned judge s finding in relation to the second requirement fair share of resulting benefit is the subject of a Notice to Vary on behalf of BIDS It is appropriate at this point to set out the grounds upon which the respective parties now base their appeals In this regard the Competition Authority contend 1 That the learned trial judge erred in law and in fact in coming to the conclusion that there was sufficient evidence of efficiency gains for the purposes of Article 81 3 and in particular that the learned trial judge erred in concluding that for the purposes of Article 81 3 BIDS had established on the balance of probability that cost savings will be achieved by the BIDS proposals in circumstances where a No consistent evidence was adduced by BIDS to substantiate this claim b Such evidence as was adduced by BIDS in an attempt to substantiate this claim was inconsistent and inconclusive c Such evidence as was put before the court by BIDS was several years out of date d No evidence was placed before the court by BIDS as to the likely identity of members of BIDS who were to exit the industry e No evidence was placed before the court by BIDS as to whether the plants which would be decommissioned were inefficient or efficient plants f There was no evidence that it was the least efficient plants which would be decommissioned The Competition Authority further contend that the learned trial judge erred in law in his approach to the issue of indispensability under Article 81 3 in that he failed to consider first whether the BIDS arrangements were reasonably necessary to achieve the efficiencies contended for by the defendants respondents and secondly whether each individual restriction of competition contained in the BIDS arrangements was also reasonably necessary for the attainment of the said alleged efficiencies As already noted the Notice to Vary by BIDS is confined to the single ground upon which the learned trial judge found against BIDS and is elaborated in the following terms 1 The learned High Court judge erred in law or alternatively on a mixed question of law and fact and misdirected himself in finding that BIDS had not discharged the onus of proof of showing that consumers would receive a fair share of the benefits resulting from the BIDS arrangements namely the significant economic gains which the judge found would result from the implementation of the BIDS arrangements 2 The learned High Court judge erred in law or alternatively on a mixed question of law and fact and misdirected himself in holding that it was necessary for BIDS to demonstrate with precision the size of the benefits that would result from the BIDS arrangements and that this was a prerequisite to any assessment of whether a fair share of such benefits would pass to consumers as required by Article 81 3 of the Treaty 3 The learned High Court judge erred in law or alternatively on a mixed question of law and fact and misdirected himself in holding that Article 81 3 required BIDS to demonstrate with precision the size of the efficiency gains which would be generated by the BIDS arrangements in circumstances where it was not possible to do so and where in any event it was impossible precisely to quantify the proportion of the gains passing to consumers 4 The learned High Court judge erred in law in imposing an excessively high standard of proof on BIDS to demonstrate that the BIDS arrangements complied with that part of Article 81 3 which requires that consumers be allowed a fair share of the resulting benefit of the impugned agreement decision or alleged concerted practise and to that extent the learned High Court judge misconstrued and or misapplied the provisions of Article 81 3 5 The learned High Court judge erred in law or alternatively on a mixed question of law and fact and misdirected himself in failing to hold that the evidence as a whole established that a fair share of the benefit resulting from the BIDS arrangements would pass to consumers 6 The learned High Court judge erred in law or alternatively on a mixed question of law and fact and misdirected himself in failing to have sufficient regard to the Commission s guidelines on the application of Article 81 3 2004 C101 08 in his assessment of whether the requirement that a fair share of the benefit resulting from the BIDS arrangements should pass to consumers had been fulfilled GENERAL OBSERVATIONS It is important to lay emphasis on a number of features present in this case Firstly and as so found by the learned trial judge the initiative giving rise to the BIDS scheme was as far removed as one could imagine from objectionable cartel practises The scheme was not one hatched in a smoke filled room by representatives of the various undertakings engaged in the processing industry but rather was the end result of years of study and consideration by bodies which included Enterprise Ireland The Minister for Agriculture Food and the officials of his department representatives from the beef industry from IBEC the Irish Farmers Association IFA the ICOS and the Irish Meat Association Reports from multiple sources indicating a clear need to rationalise beef processing in Ireland include the McKinsey Report in 1998 and the report of the Beef Taskforce set up by the Minister for Agriculture Food in November 1998 which reported to him in June 1999 Other reports to similar effect produced in the years that followed included a report produced in March 2000 headed Irish Beef Processing Trends Market Structure and Value Chain Analysis by a leading group of Irish economists a report from the Agri Food 2010 Group comprised of senior members of industry as well as the Director of Consumer Affairs which reported to the Minister in March 2000 A further report in 2002 prepared by Professor Sheehy from U C D entitled The Irish Cattle Beef Industry 2002 Facing Reality and a report in the same year from the Irish Meat Association all emphasised the difficulties affecting the efficient operation of the beef processing industry in Ireland Secondly BIDS had an open and transparent relationship with the plaintiffs in this case and at all stages sought to work collaboratively with the Competition Authority to achieve a just and fair solution to the problems affecting the industry Thirdly and accepting in this context that the situation of the Irish processing industry may appropriately be described as being in crisis I am satisfied as indeed was confirmed to the Court by both parties to this appeal that there are no specific rules on crisis cartels in the EC Treaties As pointed out in Power s Competition Law Practice Butterworths 2001 at par 23 42 the attitude of the Commission may be encapsulated in the following Instead the Commission has formulated a policy It has been written The policy followed by the Commission is that if exceptions are to be permitted it is only when the principal objective of the agreement is to provide a direct solution to the structural adjustment problem by means of orderly reduction of capacity which may be backed up by contractual penalties for violation of the agreement The Commission is willing to clear severe and chronic structural over capacity provided the cartel s rules are reasonable justifiable necessary non discriminatory and do not involve co ordinating prices or output The Commission has put aside its strong opposition to some anti competitive practises such as price fixing where the participants are involved in a crisis situation The exemption will be only for a limited period of time Lastly but importantly in the present case both sides to this appeal have refrained from disputing the key elements in the economic analysis conducted by the learned trial judge However both sides strongly contend that the learned trial judge drew incorrect inferences from his analysis BIDS contends that the learned trial judge was in error in holding that the efficiency gains to consumers had to be demonstrated with precision The plaintiffs on the other hand contend that it is well established under the Commission s guidelines that precise and measurable efficiencies must be demonstrated and further contend that the learned trial judge s findings on this issue were correct On the remaining issues the Competition Authority argues it would seem to me somewhat illogically that while the learned trial judge correctly decided that benefits flowing from the arrangements could not be accurately or objectively quantified he incorrectly determined the issues arising in the context of the first and third conditions respectively of Article 81 3 DISPOSAL OF THE PRESENT APPEAL This Court must ask itself

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  • court was responding only to the precise question which had been referred to it by this Court by way of reference for preliminary ruling Nonetheless it pronounced in its judgment on the very important question of the very object of the BIDS arrangements which it found to conflict patently with the concept inherent in the Treaty regarding competition Clearly the learned trial judge will have to have regard to the terms of the Judgment in Case C 209 07 The key paragraphs which contain the court s reasoning upon the arrangements are as follows 33 The BIDS arrangements are intended therefore essentially to enable several undertakings to implement a common policy which has as its object the encouragement of some of them to withdraw from the market and the reduction as a consequence of the overcapacity which affects their profitability by preventing them from achieving economies of scale 34 That type of arrangement conflicts patently with the concept inherent in the EC Treaty provisions relating to competition according to which each economic operator must determine independently the policy which it intends to adopt on the common market Article 81 1 EC is intended to prohibit any form of coordination which deliberately substitutes practical cooperation between undertakings for the risks of competition 35 In the context of competition the undertakings which signed the BIDS arrangements would have without such arrangements no means of improving their profitability other than by intensifying their commercial rivalry or resorting to concentrations With the BIDS arrangements it would be possible for them to avoid such a process and to share a large part of the costs involved in increasing the degree of market concentration as a result in particular of the levy of EUR 2 per head processed by each of the stayers 36 In addition the means put in place to attain the objective of the BIDS arrangements include restrictions whose object is anti competitive 37 As regards in the first place the levy of EUR 11 per head of cattle slaughtered beyond the usual volume of production of each of the stayers it is as BIDS submits the price to be paid by the stayers to acquire the goers clientele However it must be observed as did the Advocate General in point 85 of her Opinion that such a measure also constitutes an obstacle to the natural development of market shares as regards some of the stayers who because of the dissuasive nature of that levy are deterred from exceeding their usual volume of production That measure is likely therefore to lead to certain operators freezing their production 38 As regards secondly restrictions imposed on the goers as regards the disposal and use of their processing plants the BIDS arrangements also contain by their very object restrictions on competition since they seek to avoid the possible use of those plants by new operators entering the market in order to compete with the stayers As the Competition Authority pointed out in its written observations since

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/7bdbace17723aeeb80257663003acb84?OpenDocument&TableRow=2.1 (2016-02-09)
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