Ruling allows rape case re-trial

An Irish Supreme Court decision has cleared the way for the English courts to re-try a man on a charge of raping his grandmother in the 1980s, a charge of which he was previously acquitted.

The man, a UK national aged in his 40s, was arrested here by gardaí some years ago and later consented to his extradition to England where he was wanted on a separate charge arising from the rape of a teenage girl in 2002. He pleaded guilty to that offence and is serving a sentence.

He was previously acquitted in the 1980s of raping his maternal grandmother but, after forensic material was re-examined in that case some years ago, the UK prosecuting authorities applied to have the acquittal quashed and a re-trial ordered.

The English Court of Appeal in 2009 ruled there was new and compelling evidence not available at the original trial, which required the acquittal should be quashed and a new trial ordered.

However, because that offence was not the offence for which the man’s extradition from Ireland was sought, the English court was unwilling to order a re-trial unless and until the Irish High Court consented to the man’s prosecution.

The UK authorities applied for that consent under the European Arrest Warrant (EAW) Act 2003 and in March 2010 the Irish High Court granted the consent.

The man’s lawyers appealed that decision to the Supreme Court which today dismissed the appeal, with the effect the re-trial on the earlier rape charge will proceed.

The issue in the appeal was whether the order of acquittal of the man on the first rape charge was a “final judgment” within the meaning of Section 41 of the EAW Act 2003.

The 2003 Act gave effect to the European Framework Decision on extradition, and Section 41 prohibits surrender of a person for an offence "in respect of which final judgment has been given in the State or a Member State".

The man argued, as long as his acquittal subsists, it must be seen as a final judgment and there was no jurisdiction to consent to his prosecution for the earlier offence.

Giving the court’s decision, Mr Justice Joseph Finnegan, with whom the Chief Justice, Mr Justice John Murray and Ms Justice Susan Denham agreed, said that, in Irish jurisprudence, a judgment or order which determines the matter in issue in proceedings is termed “final”. In that sense, the judgment of acquittal was a final judgment.

However, he said, this appeal concerned the meaning of “finally judged” in Article 3.2 of the Framework Decision and of “final judgment” in Section 41 of the EAW Act 2003. In interpreting the 2003 Act, the court must, as far as possible, not be in conflict with the provisions of the Framework Decision.

The objective underlying the Framework Decision was establishment of a free movement of judicial decisions in criminal matters within an area of freedom, security and justice; the mutual recognition of judicial decisions and a high level of confidence between Member States, he said.

In a recent European Court of Justice decision - the Mantello case - it was clear the phrase “finally judged” in the Framework Decision has “an autonomous meaning” in EU law, he ruled.

This was, where the law of a member state seeking extradition does not definitely bar further prosecution or “constitute a procedural obstacle” to the possible opening or continuation of criminal proceedings against a person in respect of the same acts alleged against them, then that persons has not been finally judged.

In this case, the earlier acquittal of the man did not, under UK law, definitively bar the commencement of further criminal proceedings in respect of the rape offence, he said.

Accordingly, it could not be said the man had been “finally judged” in relation to that offence and the grounds in Section 41 for mandatory non-execution of the EAW did not apply. The acquittal in this case was not therefore a “final judgment” within the meaning of Section 41.