|Minister for Justice Equality and Law Reform -v- Tobin|
| IESC 37|
Supreme Court Record Number:
High Court Record Number:
|2009 259 Ext|
Date of Delivery:
Composition of Court:
|Denham C.J., Murray J., Hardiman J., Fennelly J., O'Donnell J.|
|Allow And Set Aside|
Link to Judgment
THE SUPREME COURT
[Record No: 98/2011]
Minister for Justice, Equality and Law Reform
Judgment delivered on the 19th day of June 2012 by Denham C.J.
1. The events leading up to this appeal commenced on the 9th April, 2000, in the city of Leányfalu, Hungary, when Ciarán Tobin was driving a car which went up on the sidewalk and two small children were killed.
2. This is an appeal by Ciarán Tobin, the respondent/appellant, referred to as “the appellant”, from the judgment of the High Court (Peart J.) delivered on the 11th February, 2011, and the order that the appellant be surrendered to Hungary, pursuant to s. 16 of the European Arrest Warrant Act, as amended.
3. The learned High Court judge was satisfied that the Court was required to order the surrender of the appellant to the authorities in Hungary.
4. By order dated the 10th March, 2011, the High Court certified that its decision to surrender the appellant involved a number of points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this Court.
5. The questions certified by the High Court were:-
(a) Whether it is an abuse of process and/or contrary to Articles (6), (34) and/or (37) of the Constitution or is otherwise impermissible pursuant to the European Arrest Warrant Act, 2003 as amended for proceedings to be instituted pursuant to that Act seeking the extradition of a person for a second time where
6. The appellant’s surrender is sought on a European Arrest Warrant issued by the Hungarian authorities on the 17th September, 2009, referred to as “the EAW”.
(i) The first such proceedings failed following a determination by the High Court and Supreme Court that the appellant had not fled from the requesting State as required pursuant to the law as it stood at the time of the said proceedings.
(ii) The second proceedings have been instituted following an amendment of the European Arrest Warrant Act, 2003, so as to remove the requirement that the appellant had fled from the requesting State.
(iii) The warrant on foot of which the second request was made is substantively the same as the first.
(b) Whether the provisions of the European Arrest Warrant Act, 2003, as amended apply to convictions imposed in States prior to their accession to the European Union.
(c) Whether s. 5 of the 2003 Act as amended requires the Minister in establishing correspondence to demonstrate that the offence as described and identified in the warrant would in its entirety constitute an offence under Irish law and whether the offence particularised in the warrant herein discloses an offence under Irish law.
(d) Whether it is a breach of the right to equality under Article 40.1 of the Constitution and family rights under Article 41 and 42 of the Constitution and Article 8 of the European Convention on Human Rights and/or otherwise contrary to the provisions of the European Arrest Warrant Act, 2003 as amended for the appellant as an Irish citizen to be extradited to Hungary in circumstances where having fled the jurisdiction it is not possible to serve his sentence of imprisonment in Ireland without returning to Hungary.
7. The offence for which the appellant was convicted and sentenced is described on the EAW as follows:-
“At around the time of 3.45 p.m. on 9th April 2000, Tobin Francis Ciarán was driving Volvo S40 car with licence plate number GJZ-5—with four passengers along Móricz Zsigmond Street within the city limits of Leányfalu (Hungary), in an inhabited area, at a speed of 75-80 kilometres per hour proceeding from the direction of Visegrád to Szentendre. The accused steered to the right for unknown reasons, and due to this sudden movement of the steering wheel, and to the speed, being excessive compared to the traffic conditions, the vehicle went up on the sidewalk, which was separated from the road by a raised stone edge, at a speed of 71-80 kph, and hit Márton Zoltai, aged 5, who was waiting on the sidewalk, and Petra Zoltai, aged 2, who was sitting in a pram. Both Márton Zoltai and Petra Zoltai died on the spot as a result of the accident.”
8. The Court in Hungary found the appellant guilty of the misdemeanour of the violation of the rules of public road traffic by negligence causing death.
9. The enforceable judgment is dated the 7th May, 2002, by the Buda Regional Court as the Court of first instance, and the order dated the 10th October, 2002, by the Pest County Court, as the Court of second instance.
10. The sentence imposed on the appellant is described on the EAW as:-
11. There is a history to his appeal, as an earlier EAW from Hungary was previously before the Irish Courts and the surrender of the appellant was refused.
“Length of the custodial sentence or detention order imposed: 3(three) years of imprisonment to be served in a low-level security prison. Remaining sentence to be served: 3 (three) years in a low-level security prison.”
12. The Minister for Justice, Equality and Law Reform, the applicant/respondent, referred to as “the Minister”, had previously sought surrender of the appellant under the European Arrest Warrant Scheme, as implemented in Ireland by the European Arrest Warrant Act, 2003, referred to as “the Act of 2003”. The appellant was arrested on the 11th January, 2006, on foot of warrants issued by the authorities in Hungary seeking his surrender. The High Court refused to order his surrender by its order on the 12th January, 2007. The Minister appealed that decision to this Court, which dismissed the appeal and refused to order the surrender of the appellant on the 3rd July, 2007: The Minister for Justice, Equality and Law Reform v. Tobin IESC 3, hereinafter referred to as Tobin (No. 1).
13. The previous proceedings were decided on the basis that the appellant could not be surrendered as s. 10 of the Act of 2003 did not apply to the appellant, as it required that the person sought had “fled” from the issuing State. As a person who had lawfully left Hungary after his passport was returned to him by the Hungarian authorities, it was held that the appellant had not “fled” Hungary and so could not be surrendered under s. 10 of the Act of 2003.
14. The Irish law was amended. Section 6 of the Criminal Justice (Miscellaneous Provisions) Act, 2009, removed the requirement of persons having “fled from the issuing State” from s. 10 of the Act of 2003.
15. Section 10 of the Act of 2003, as amended, now states, in the sections relevant to this case:-
“Where a judicial authority in an issuing state issues a European arrest warrant in respect of a person—
16. An agreed list of issues was prepared for the Court by counsel for the parties on this appeal, as follows:-
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.”
A. Given that this Court held in (Tobin No. 1) that the extradition of the appellant pursuant to the provisions of the Act of 2003 as then in force was not permissible because he had not fled Hungary, is his surrender following amendments to that Act so as to remove the requirement that a person have so fled precluded in circumstances where the warrant on foot of which the present proceedings have been brought is substantively the same as the warrant the subject of Tobin (No. 1) and having regard to:
B. Given that the Transfer of Execution of Sentences Act 2005 requires the appellant to have fled in order for that Act to have effect so that that Act does not operate to permit Ireland and Hungary to agree to the appellant serving the sentence so imposed upon him in this State consequent upon his not having fled Hungary, is his surrender to Hungary to serve that sentence precluded by the provisions of the Act of 2003, and in particular section 37 thereof?
C. Does the fact that Hungary would not surrender a Hungarian citizen to Ireland in respect of offences of the kind giving rise to this request result in a lack of reciprocity having regard to which the instant request ought to be refused pursuant to section 37 of the Act of 2003, or otherwise?
D. Does the offence identified in the warrant the subject hereof – violation of the rules of public road traffic by negligence causing death – and/or the facts as alleged against the appellant correspond to an offence under Irish law?
E. Does the warrant the subject hereof comply with the provisions of s.11 of the Act of 2003, as to the manner in which the sentence imposed upon the appellant is described having regard to all the circumstances (including the various warrants the subject of and the representations made to this Court in Tobin (No. 1) as to the nature of the sentence imposed on the appellant)?
F. Do the provisions of the Act of 2003 as amended, apply so as to enable the extradition of a person to a European Union State in respect of a conviction imposed by the Courts of that State prior to its accession to the European Union?
G. Is the warrant the subject hereof and/or the proceedings brought on foot of it invalid having regard to the fact that at the time of the issuing and thereafter endorsement of the warrant the subject hereof, the provisions of the Criminal Justice (Miscellaneous Provisions) Act 2009 were not published or disseminated.
H. Ought the extradition of the appellant otherwise be refused having regard to:
17. As indicated earlier, this case has a history. In an appendix to this judgment a chronology is set out.
(a) The period of ten years that has elapsed since the incident to which the warrant relates;
(b) An alleged lack of fair procedures attendant upon his original conviction having regard, in particular, to the exclusion of relevant statements at the trial, and failure to preserve relevant evidence;
(c) The alleged threat to the life and bodily integrity of the Appellant if he is returned to serve his sentence in that jurisdiction.
The Framework Decision
18. The Framework Decision of the 13th June, 2002, introduced a new, simplified, system of surrender of sentenced or suspected persons for the purposes of execution of a sentence or a detention order or to conduct a criminal prosecution. It was agreed to in order to remove the complexity and potential for delay inherent in the previous extradition procedures which existed between member states of the European Union. The new system is based on judicial decisions in the member states. In fact, the European arrest warrant system was the first concrete measure in the field of criminal law implementing the principle of mutual recognition, which is the cornerstone of judicial co-operation.
19. The Framework Decision established an obligation to surrender between member states. Article 1.2 provides:
However, this obligation is subject to exceptions.
“Member States shall execute any European Arrest Warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.”
20. Thus, for example, Article 3 of the Framework Decision sets out grounds for mandatory non-execution of a European Arrest Warrant.
21. Also, Article 4 provides grounds for optional non-execution of the European Arrest Warrant; for example, where the person who is the subject of the European Arrest Warrant is being prosecuted in the executing Member State for the same act as that on which the European Arrest Warrant is based.
22. In addition, Article 5 makes provision that in particular cases guarantees are to be given by the issuing member state.
23. Therefore, it may be seen that the Framework Decision provides a system of surrender, to which there are some exceptions.
24. Fundamental rights and legal principles are expressly addressed in Article 1, where it is stated that the Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.
25. The Oireachtas enacted the Act of 2003 and it came into operation on the 1st January, 2004.
26. The Act of 2003 was amended by the Criminal Justice (Terrorist Offences) Act, 2005, and the Criminal Justice (Miscellaneous Provisions) Act, 2009, which together are referred to as “the Act of 2003, as amended”.
27. The mandatory nature of the system of surrender may be seen in s. 10 of the Act of 2003, as amended, which is set out earlier in this judgment.
Thus where, as here, a judicial authority of an issuing state issues a EAW a person on whom a sentence of imprisonment has been imposed in respect of an offence to which the EAW relates, that person shall be surrendered, subject to the provisions of the Act of 2003, as amended, and the Framework Decision.
27. Therefore, the issue on this appeal is whether the provisions of the Act of 2003, as amended, and the Framework Decision as applied in Ireland, make provision by which the surrender of the appellant should be refused. In essence, the query is whether any of the exceptions to the general rule, requiring that a requested person be surrendered, apply to the appellant.
28. The first, and most important, issue, as set out in the agreed list of issues, is repeated here, for ease of reference, and is:-
Thus, there are in reality three matters to be considered under this stated issue, being in all the circumstances the application of:
Abuse of process
29. The issue under this heading is whether, given that this Court in Tobin (No. 1) held that the surrender of the appellant pursuant to the statute then in force was not permissible because he had not “fled” Hungary, is his surrender on the amended statute, where the EAW is substantively the same as the warrant in Tobin (No. 1), prohibited by principles governing the abuse of process?
“Given that this Court held in Tobin (No. 1) that the extradition of the appellant pursuant to the provisions of [the Act of 2003] as then in force was not permissible because he had not fled Hungary, is his surrender following amendments to that Act so as to remove the requirement that a person have so fled precluded in circumstances where the warrant on foot of which the present proceedings have been brought is substantively the same as the warrant the subject of Tobin (No. 1) and having regard to:
30. The historical context of the decision in Tobin (No. 1) is important. Initially under the Act of 2003, Ireland had a requirement under domestic statutory law that was not in the Framework Decision. This was an additional factor put into national law, and it was that the person sought had:
before he or she had commenced serving that sentence or completed serving that sentence.
“fled from the issuing state”,
31. In Tobin (No. 1) Fennelly J. (with whom the other members of the Court agreed) gave the reasons for the Court’s decision. He pointed out that the appeal concerned the meaning of the word “fled” in the Act of 2003, and whether the appellant had “fled” Hungary. Having reviewed the facts, Fennelly J. held that the appellant’s leaving of Hungary could not reasonably be described as “fleeing” or “flight” in accordance with any generally understood meaning of the word. Fennelly J. was satisfied that the appellant did not “flee” Hungary, and that if the Court were to hold otherwise it would be contrary to the Act of 2003, i.e. contra legem. Consequently, the appeal of the Minister was dismissed and the appellant was not ordered to be surrendered to Hungary.
32. The EAW before the Court on this appeal is substantially the same as was before the Court in Tobin (No. 1). The fundamental facts are the same, except that the national law has been altered and no longer has the requirement, (which was an additional condition to those set out in the Framework Decision), that the requested person had “fled” the requesting state. This amendment brought the national law into conformity with the Framework Decision. This was an amendment the Oireachtas was entitled to make, and was not an abuse of process by the legislature.
33. In issuing this EAW Hungary seeks the surrender of the appellant to serve the sentence imposed by the courts of Hungary. This request was in keeping with the EAW scheme and was not an abuse of process by the requesting state.
34. The Minister received this request, which on its face meets the requirements of the law. There is an obligation on the Minister to proceed with such a request. Therefore, proceeding with the request was not an abuse of process by the Minister.
35. Further, on the matter coming before the Court, the EAW being in conformity with national law and with the Framework Decision, the documents were apparently in order.
36. Thus, no party or institution acted with mala fides. This is a factor in analysing circumstances to determine whether or not there has been an abuse of process.
37. However, it is also necessary to consider whether, in all the circumstances, there has been a cumulative effect so as to render an abuse of process upon the appellant.
38. The fact that there was an earlier arrest warrant does not per se render a subsequent warrant an abuse of process. Second warrants are not an unusual occurrence in an extradition process. While the law in Ireland prior to the Act of 2003 was grounded on the Extradition Act, 1965, the fundamental principle has not altered.
39. The fundamental principle was considered in Bolger v. O’Toole & Ors (Ex tempore, Unreported, Supreme Court, 2nd December, 2002) where I stated:
40. Similarly, in this case, no broad issue was determined in Tobin (No. 1). The specific issue of whether he had “fled” Hungary was raised, and determined in his favour. There is now a new warrant and the issue of whether he “fled” does not arise. The system of surrender established under the Act of 2003, as amended, and the Framework Decision, do not exclude subsequent warrants. The fact that the appellant succeeded when he brought proceedings on the first warrant does not prima facie exclude a further warrant. It is necessary to consider all the circumstances of each case as they arise. Thus, if an issue such as delay had been determined on a warrant that could govern any subsequent warrant. But where a net issue is determined in relation to an initial warrant, e.g. the “fled” issue in this case, that is a discrete issue which would not prima facie exclude a subsequent warrant.
“The issues before the District Court on these warrants will be different. No broad issue has been determined as to the extradition of the applicant to England. Technical issues were raised successfully in relation to the original set of warrants. There is now a new set of warrants for consideration by the courts. The applicant may also raise wider issues, as he is entitled to. I am not satisfied that the case law submitted by counsel for the applicant, such as Henderson v. Henderson, advance his case on the res judicata issue. As to the issue of delay, that was not a matter on the judicial review nor was it considered in the High Court. Consequently, it is not a matter for consideration on this appeal.
This case is being decided on all its circumstances. The decision relates to the presentation of second set of warrants to the District Court.
The warrants in issue are different from those warrants which came before the District Court in 1996. They have been endorsed. Thus it is now for the District Court to exercise its jurisdiction.
While on the one hand counsel for the applicant submitted that these warrants were res judicata, he also submitted (when addressing an issue of abandonment) that the State could have adjourned the early application in the District Court to obtain new warrants, or that it could have moved by a subsequent provisional warrant. In essence counsel was submitting that a new set of warrants should have been obtained more speedily.
I am satisfied that under the Extradition Act, 1965 the scheme of rendition by way of backing of warrants does not exclude subsequent warrants. Before the District Court in this case are a new set of warrants, the jurisdiction of the District Court may proceed. The issues before the District Court are different, it has been stated that the two issues that arose under the original warrants have been rectified.
The warrants are new and any issues which may be raised will be different. The fact that the applicant was discharged by the District Court on foot of a previous set of warrants where there were two errors does not exclude a fresh set of warrants being produced and being endorsed. New warrants which have been endorsed now arise to be considered by the District Court. It is for the District Court to exercise its jurisdiction under the Extradition Act, 1965 as amended. The fact that a previous set of warrants existed and on which the applicant was discharged does not prima facie exclude the production and endorsement of a second set of warrants. It may well be that for good reason, in the circumstances of the case, a court may determine that an application for rendition should be refused. Thus, if it were an abuse of process the application may fail. In this case the applicant has been refused leave to make a specific application grounded on specified issues of abuse of process. However, that would not be a bar to any subsequent application for habeas corpus on different issues. Similarly, issues such as delay, which may arise in accordance with the legislation as well as the Constitution, are separate issues which may be raised. However, these matters are not before this court.”
41. In Attorney General v. Gibson (Ex tempore, Unreported, Supreme Court, 10th June, 2004) Keane C.J. stated that it was clear beyond argument that:-
42. This approach to subsequent warrants is not unique to Ireland. In Office of Public Prosecutor of Turin v. Barone EWHC 3004 (Admin) it is clear that the same principle exists in England and Wales. Lord Justice Moses stated at paragraph 29:-
“In extradition cases, the mere fact that a warrant has been issued and an application made arising out of the warrant to the court for an order of extradition, that a warrant has been issued on an earlier occasion arising out of precisely the same alleged offence, and has been adjudicated upon by the District Court or any court of competent jurisdiction, that fact does not, of itself and by itself, preclude a subsequent application to a court of competent jurisdiction. If there were any doubts that that is the state of law, they were, in my view, laid to rest by the decision of this Court in Bolger v. O’Toole …”
43. A request for surrender and its determination in the executing state is a matter which is sui generis. It arises in a situation where the state has entered into an agreement with other states, and there has been consequent legislation establishing a process of surrender of persons. No issue under civil or criminal law is decided. A process by which a person is surrendered by one jurisdiction to another is followed. One of the consequences of this process is that there may be subsequent requests for surrender, there may be more than one warrant seeking the requested person.
“I quite accept that the mere fact that a previous request for extradition under the old regime had failed is not of itself a basis for refusing a fresh request for surrender as it might more accurately be described, under the new regime. It is possible to envisage just the same circumstances as occurred in Kashamu, in which a request failed for non disclosure but was repealed under the new regime. But it does not follow that the previous consideration of the court of the requested state is irrelevant.”
44. As Advocate General Kokott stated on the 6th August, 2008, in Case C- 296/08 PPU at paragraph 49:-
45. Thus, on the claim that this subsequent warrant is an abuse of process, I am satisfied that a second or subsequent warrant seeking the surrender of a person is not of itself an abuse of process. To establish abuse of process there would have to be additional factors.
“49. As regards the principle of legal certainty, an integral part of which is the rule of res judicata, it is settled case-law that this is one of the general principles of law applied by the Court. (38)[Case C-2/06 Kempter  ECR 1 – 411, paragraph 37]. However, res judicata extends only to the matters of fact and law actually or necessarily settled by the judicial decision in question. (39) [Case C-642/05 Commission v Poland  ECR 1 – 4183, paragraph 23].
50. Here the earlier decision admittedly related to an extradition request relating to the same person and the same facts as the present one. However, the competent court did not rule on that request under the 1996 Convention, since that convention did not apply at the time. The status of res judicata of an unfavourable opinion given at that time cannot therefore prevent the present extradition request, relating to the same person and the same facts, from being dealt with under a new legal basis, namely the 1996 Convention. (40) [See also the judgments of the French Cour de Cassation, criminal division, of 15 February 2006, No. 05-86.095 Zurutuza Sara Sola; 12 May 1987, Bull. Crim. 1987, No. 194 (Dario Fantig); and 9 July 1987, Bull. Crim. 1987, No. 229 (Imaz – Martiarena)].
51. It should be remembered that the rejection of the extradition request of 11 October 2000 was based on the fact that, in French law, the offences with which Mr. Santesteban Goicoechea was charged were statute-barred. Precisely on this point the law has changed, as the 1996 Convention no longer allows the executing Member State to rely on the fact that an offence is statute-barred under its own national law. (41) [Article 8(1) of the 1996 Convention].
52. As regards the principle non bis in idem, enshrined in Article 4 of Protocol No 7 to the ECHR and Article 50 of the Charter of Fundamental Rights of the European Union, this is a fundamental principle of Community law the observance of which is guaranteed by the judicature. (42) [Case C-308/04 SGL Carbon v Commission  ECR 1-5977, paragraph 26 and the case-law cited].
53. The application of the principle non bis in idem is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected. Under that principle, therefore, the same person cannot be punished (or tried 43)) [Article 50 of the Charter of Fundamental Rights of the European Union] more than once for a single unlawful course of conduct in order to protect the same legal asset. (44) [Joined Cases C-204/00P, C-205/00P, C-211/00P, C-213/00P, C-217/00P and C-219/00P Aalborg Portland and Others v Commision  ECR 1-123, paragraph 338]
54. It is clear that, according to the information before the Court, Mr. Santesteban Goicoechea has not been prosecuted several times for the same offence and it is not the intention of the competent authorities to punish him several times for the same offence. (45). [Unlike the position in Case C-467/04 Gasparini and Others  ECR 1-9199]. The Spanish authorities have merely made several attempts to obtain his extradition from the French Republic, all in the context of the same criminal proceedings.
55. Extradition as such is not a penalty, and the mere fact of extraditing a person does not in any way prejudge the question whether, in law, the requesting State will be able to impose a penalty on the person concerned and enforce that penalty.
56. Consequently, the principle non bis in idem does not apply to extradition proceedings themselves. It cannot therefore preclude a new request for the extradition of Mr. Santesteban Goicoechea from being made by the Kingdom of Spain and dealt with by the French Republic.”
46. As pointed out in Bolger v. O’Toole & Ors (Ex tempore, Unreported, Supreme Court, 2nd December, 2002), if there was an abuse of process, a subsequent application may fail. Thus, even though there has been no mala fides by any person or institution, and the fact that a subsequent warrant is not per se invalid, it is necessary to consider whether there are factors, or whether the cumulative effect of all the circumstances are such that the appellant has suffered an abuse of process.
47. On analysis, it is clear that there was no issue in the first set of proceedings and in the judicial decisions which would continue to apply to this warrant and proceedings. The first proceedings were very net and related solely to the word ‘fled’ and its application. This no longer applies to the application of the appellant. In the first proceedings the appellant obtained the benefit of a technical, net issue of Irish law. I do not consider that this transforms these proceedings into an abuse of process.
48. There are many cases on the issue of an abuse of process. Of their very nature they are fact specific. A prosecution may not take a step, such as a nolle prosequi in order to mend his hand and to obtain a benefit in a subsequent prosecution. In State (O’Callaghan) v. Ó hUadhaigh I.R. 42 at p. 54 Finlay P. stated:-
It was submitted that the commencement of a second set of proceedings in which the surrender of the appellant under the European Arrest Warrant regime is sought must be regarded as an impermissible and unlawful attempt to interfere with the Court’s exercise of its constitutional functions. It was submitted that there was interference by the executive in the administration of justice. It was submitted that if the Court found that the second attempt to extradite the appellant and to expose him to a second extradition hearing is not an abuse of process, it was submitted that it would have been unconstitutional for the Oireachtas to amend the law so as to enable the Minister to proceed again. It was submitted that the Oireachtas is precluded from amending the law with retrospective effect so as to set aside the final determination of the High and Supreme Court in Tobin (No. 1) that the appellant cannot be surrendered under the European Arrest Warrant system.
“Whilst my decision, as I have already emphasised, must rely upon the facts of this particular case, it is confirmed by a consideration of the extent of the contention made on behalf of the respondent. If the Director, having entered into a nolle prosequi, is entitled to institute an entirely fresh prosecution in respect of the same alleged offence without restriction from any court then, if it appeared likely that a contention of the prosecution would fail, there would appear to be nothing to prevent the Director from entering a nolle prosequi and availing himself of the opportunity in a fresh prosecution, an additional or different evidence to succeed where he had been about to fail; that situation might arise in a discretionary matter involving a decision of mixed fact and law which falls to be determined by the trial judge rather than the jury – such as the admissibility of a statement alleged to have been made by the accused. Viewed in that light, the basis unfairness of such a contention appears to me to be clear. Therefore, I am satisfied on the facts of this particular case the Director of Public Prosecutions has not got a right to institute a fresh prosecution against the accused in respect of the matters which were the subject mater of the three charge sheets, and in respect of which the accused was returned to the learned District Justice for trial to the Circuit Court.”
49. The facts of this case and State (O’Callaghan) v. Ó hUadhaigh are entirely different. There is no question of a prosecutor taking a step and availing himself of the opportunity in a fresh prosecution. Neither the authorities in Hungary nor the Minister took any step of this type. The first proceedings were fought through to conclusion in this Court. This new EAW is possible because of the change in the general law and does not arise from a prosecutor or any other person seeking an advantage in proceedings by a procedural step. Thus, I would distinguish this case, it has no relevance to the facts which have arisen on this request for surrender.
50. In McMahon v. Leahy  I.R. 525 at issue was equality before the law. It had been the practice and law for the High Court, influenced by the State’s attitude, to declare that escapes in Northern Ireland were political offences. A solemn declaration and direction had issued from the High Court to the effect that four escapees from Newry Courthouse on the 10th March, 1975, were political offenders. In this case the State sought the opposite result in similar proceedings and on similar facts under the same Act. O’Higgins C.J. stated, at p. 537:-
51. This appeal is entirely different.
“If the State were successful in this submission, it would mean that contradicting declarations in relation to the same incident would have issued from our Courts. If such occurred, respect for the administration of justice in our Courts would surely suffer, and the Courts’ process would certainly have been abused.”
(i) There is no question of equality as between this appeal and other persons and court orders. McMahon v. Leahy was determined on the basis of the obligation to provide equal treatment for citizens of the State in accordance with Article 40 of the Constitution. It would have been unfair if co-escapees of the applicant had the benefit of the “political offence” defence and the applicant did not.
(ii) The issue in Tobin (No. 1) was on the interpretation of “fled”, which is no longer an issue. The issue in the other cases referred to in McMahon v. Leahy was the same, the political offence defence, such an equality issue does not arise in this case.
52. Many other cases were opened to the Court, including Pine Valley Developments v. Minister for the Environment I.R. 23. However, the circumstances of those cases are not in accordance with this application before the Court under the Act of 2003, and I find no assistance, indeed to either party.
53. It was submitted on behalf of the appellant that in the circumstances where the Minister chose to proceed with the first set of proceedings and to pursue them all the way to a final determination in this Court, in reliance on what is now argued to have been a legislative mistake, it would be an abuse of process to allow the Minister then to initiate a second set of proceedings.
54. I consider this to be entirely misconceived. The legislature had placed in the law the requirement that a person had “fled”. That was the law of the land, even if it was not a condition enacted in any of the other member states who had enacted the Framework Decision into national law. The Framework Decision does not preclude national requirements, although the fundamental principle is to achieve conforming legislation. The authorities in Hungary and Ireland acted entirely within the law in bringing the “initial” application to the High Court and in appealing the issue to this Court. While it may now be regarded as a legislative mistake to have included the condition that a person had fled a requesting state, it was clearly a specific condition precedent proposed by the executive and enacted by the legislature. Thus, it was entirely appropriate for the Minister to act within the law and to seek clarification from this Court of the law. Neither a Minister nor a state authority can take the view that a law is “a mistake” and choose which law to apply or not. I do not consider that the steps taken by and on behalf of the Minister are a foundation upon which to now claim an abuse of process, as the initial warrant was refused because of a technical matter which arose under national law, requiring that the appellant had “fled” Hungary, which he had not. Subsequently, there was a change in the national law, a change in the general law, which omitted the condition of “fled” from the requirements of Irish law. The Minister was entitled to, and had a duty to, act within the law as it then stood. In those circumstances there was no evidence before the Court of abuse of process and I would dismiss this ground of appeal.
Separation of Powers
55. It was submitted that the commencement of a second set or proceedings in which the surrender of the appellant under the European Arrest Warrant regime is sought must be regarded as impermissible and unlawful attempt to interfere with the Court’s exercise of its constitutional functions. It was submitted that if the Court found that the second attempt to extradite the appellant and to expose him to a second extradition hearing is not an abuse of process, it was submitted that it would have been unconstitutional for the Oireachtas to amend the law so as to enable the Minister to proceed again. It was submitted that the Oireachtas is precluded from amending the law with retrospective effect so as to set aside the final determination of the High and Supreme Court in Tobin (No. 1) that the appellant cannot be surrendered under the European Arrest Warrant system.
56. This argument is misconceived. The earlier Tobin (No. 1) case held that the appellant had not “fled” and thus he could not be surrendered as the condition established under national law was not met. The Oireachtas is entitled to amend the law generally, as it did in this case. The amended law dropped the unique requirement of Ireland that a requested person had “fled”. The current request by Hungary for the surrender of the appellant was made after the general change in the law. The current law applies to this request.
57. This is not a situation where the Oireachtas sought to interfere with a specific case or decision of the courts. Thus, Buckley v. Attorney General  I.R. 67 is not applicable. Nor is there any similarity with Costello v. Director of Public Prosecutions  I.R. 436.
58. The previous decision of the Court was that the appellant had not “fled” Hungary, and that consequently under the law he could not be surrendered. It was a discrete decision, and not a general decision that the appellant could never be surrendered. As stated previously, a subsequent warrant is not of itself invalid, although all the circumstances of the case may be considered. The circumstances of the decision of Tobin (No. 1) were that it was made on a net point of national law. The fact that the general national law has been changed (indeed Irish law became more conforming with the Framework Decision) is not an interference with the administration of justice, or an abuse of process. Thus, I would dismiss this ground of appeal by the appellant.
Section 27 of the Interpretation Act, 2005
59. The appellant submitted that it is impermissible to bring this second set of proceedings on foot of the amendment in the Act of 2009 of section 10 of the Act of 2003 by reason also of s. 27 of the Interpretation Act, 2005. Section 27 of the Interpretation Act, 2005, provides:-
“(1) Where an enactment is repealed, the repeal does not—
(a) revive anything not in force or not existing immediately before the repeal,
(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment,
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment,
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence against or contravention of the enactment which was committed before the repeal, or
(e) prejudice or affect any legal proceedings (civil or criminal) pending at the time of the repeal in respect of any such right, privilege, obligation, liability, offence or contravention.
(2) Where an enactment is repealed, any legal proceedings (civil or criminal) in respect of a right, privilege, obligation or liability acquired, accrued or incurred under, or an offence against or contravention of, the enactment may be instituted, continued or enforced, and any penalty, forfeiture or punishment in respect of such offence or contravention may be imposed and carried out, as if the enactment had not been repealed.”
60. It was submitted on behalf of the appellant that s. 27 operates to prevent the retrospective application of statutory amendments to pre-existing rights, privileges, judicial proceedings, etc. In particular, reliance was placed on the prohibition of any retrospective application which would “affect the previous operation of the enactment or anything duly done or suffered under the enactment”, or which would “affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment”. It was submitted that the Minister’s application to seek the surrender of the appellant for a second time on foot of the changes introduced by the Act of 2009 is contrary to both of those provisions as liable to affect the previous operation of the Act, and the proceedings brought previously against the appellant, and is liable to deprive him of the benefit of the judicial determination acquired in those proceedings. It was submitted that this is also a basis upon which the Court should allow the appeal.
61. The issue is whether the decision in Tobin (No. 1) has given the appellant a right or a vested right so that it may be presumed that the Oireachtas did not intend to interfere with that right unless the contrary intention appears.
62. It is clear that under s. 27(1)(b) the amendment does not affect the previous operation of the previous enactment or anything duly done or suffered under the enactment. Thus, the amendment does not affect the previous decisions of the High Court or this Court in Tobin (No. 1), which held that the appellant had not “fled” Hungary. Those decisions stand unaffected.
63. The appellant obtained the benefit of those decisions. Any right accrued to the appellant is to the benefit of those decisions. The amendment does not affect any right, privilege, obligation or liability accrued or incurred under the previous statute, thus the amendment does not affect the right which the appellant has under Tobin (No. 1).
64. Section 27(1)(c) refers to a right accrued or incurred under the previous legislation. The appellant has a right which was recognised under the previous legislation, a decision that he had not “fled” Hungary and could not be surrendered because of the condition established in the statute.
65. The determination of the Irish Courts in Tobin (No. 1) was a discrete decision on the issue of whether or not he had “fled” Hungary. It was not a broad analysis and determination that he could not be surrendered to Hungary. The consequence was that the appellant could not be surrendered because of the national law requirement that he had “fled” Hungary.
66. As long as Irish national law retained the “fled” requirement, the appellant could not be surrendered to Hungary.
67. However, it is clear that the Oireachtas sought to bring Irish law into conformation with the Framework Decision by deleting the requirement that a person who is requested under the European Arrest Warrant Scheme should have “fled” the issuing state. This amending legislation is a general law, which has prospective effect, and which is consistent with the role of the legislative organ of the State. Further, it is consistent with obligations arising under the Framework Decision.
68. The situation requires to be analysed in the context of the law on extradition. The section applies to an area of law which is sui generis, which is a process for surrender between member states.
69. I am satisfied that any right accrued or incurred by the appellant relates to the decision on the net issue of “fled” and is limited to that issue, and does not bar a further warrant or the application of current law.
70. If there was any doubt about the matter, which I do not have, I am satisfied that the Oireachtas was entitled to bring the Irish law into conformity with the Framework Decision, and no decision made has given to the appellant a right not to be surrendered under Irish law and the Framework Decision as now applied in Ireland.
71. A national court has a responsibility, as far as possible, to interpret national law in light of the wording and purposes of a Framework Decision. As was stated, and applied in Ireland previously, by the European Court of Justice in Case C – 105/03 Pupino  2 CMLR 63 at paragraph 43:-
72. In Tobin (No. 1) the Court could not apply the principle of interpretation in conformity with Community law as to do so would have been contra legem. This indicates the position of the Court, and the narrow issue of the decision i.e. to the “fled” point.
“In the light of all the above considerations, the court concludes that the principle of interpretation in conformity with Community law is binding in relation to framework decisions adopted in the context of Title VI of the Treaty on European Union. When applying national law, the national court that is called on to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34(2)(b) EU.”
73. As has been stated earlier, it was entirely within the power of the Oireachtas to bring the law into conformation with the Framework Decision.
74. The right obtained by the appellant arising from Tobin (No. 1) was limited to the decision made, i.e. that there was a requirement under national law that a person could not be surrendered to an issuing country unless he had “fled” from that state, and as the appellant had not fled Hungary he could not be surrendered.
75. There is no general right not to be extradited or surrendered, either under Irish law or under the European Convention on Human Rights.
76. Extradition, or surrender, is a sui generis procedure, which is not determinative of a person’s civil rights or liabilities under criminal law. It is a procedure of surrender of requested persons between states, arranged between states.
77. A person who becomes liable to surrender by reason of a change in the law is not entitled to complain of interference with any vested right to general protection from being surrendered to serve a sentence imposed on him in another State.
78. As was stated in Sloan v. Culligan  1 I.R. 223 at 273 by Finlay C.J.:-
“The Court is satisfied that the plaintiff did not have at any material time what has been described in the submissions before the Court as a vested right, either to freedom or to protection from being delivered up to serve these sentences on the basis that the offences in respect of which they were imposed constituted political offences, either of which rights has been interfered with or left unprotected by virtue of the effect and provisions of the Act of 1987 and, in particular, of s. 1, sub-s. 4 thereof.
The right of the plaintiff, as of every other citizen, concerning the question of his delivery into another State for the purpose of serving a sentence lawfully imposed on him in that State, was, the Court is satisfied, a right at any given time to proper, due and fair procedures concerning an investigation of the validity of the warrant in respect of which he is delivered, and to a fair, proper and due inquiry into the protections applicable in law, within the State at the time of the application for his delivery, which may afford him a protection arising from the concept of a political offence or from any other of the concepts appropriate to prevent such a delivery. The provisions of the Act of 1987 constitute a development of the law applicable to the delivery of persons out of the jurisdiction of this State and into the jurisdiction of the Northern Ireland courts, amongst others, which the legislature in accordance with the decision of the State to ratify the European Convention on the Suppression of Terrorism, done at Strasbourg on the 27th January, 1977, has validly decided to enact. Upon the passing of that statute the right of every citizen and every person affected by it simply is to its due application, and its application with regard to the provisions of s. 3 thereof to a case where an offence was committed before the passing of the Act of 1987, but where a warrant requesting the delivery of the person concerned was not issued until after the passing of the Act, does not constitute, the Court is satisfied, any failure on the part of the State to defend, vindicate or protect any personal right of the plaintiff.
The Court is, therefore, satisfied that s. 1, sub-s. 4 of the Act of 1987 has not been established as being invalid, having regard to any provision of the Constitution.”
[The emphasis is added].
79. Relying on the extract from Sloan v. Culligan quoted above, I reached the same conclusion in Minister for Justice, Equality and Law Reform v. Bailey  IESC 16 (1st March, 2012) where I stated at paragraph 65:-
80. Thus, the right of a person whose surrender is sought is to fair procedures, concerning the validity of the EAW and to inquiring into the protections applicable under current law. The amendment of the national law does not amount to an abuse of process. The appellant’s right is to fair procedures in relation to this warrant.
“Applying that rationale to this case, I am satisfied that the appellant has not established any vested right not to be surrendered. He has a right to due and fair procedures. On this issue, the second of the legal issues, on the application of s. 42 of the Act of 2003, the appellant has not established any vested right not to be surrendered that would be protected under s. 21 of the Interpretation Act, 1937, or s. 27 of the Interpretation Act, 2005.”
81. Taking into consideration the submissions made by the parties, I am satisfied that the appellant does not have a right under s. 27 of the Interpretation Act, 2005, so as to prohibit his surrender under the law on the current EAW.
Transfer of Execution of Sentences Act, 2005
82. The issue on this aspect of the law arises as the Transfer of Execution of Sentences Act, 2005, referred to as “the Act of 2005”, requires the appellant to have fled in order for that Act to have effect, which means that the Act of 2005 does not operate to permit Ireland and Hungary to agree to the appellant serving the sentence imposed upon him in Hungary in this State, as he has not fled Hungary. It is ironic that his success in Tobin (No. 1) prohibits the application of the Act of 2005 to him.
83. The issue raised is whether because of the fact that the Act of 2005 does not apply to the appellant, and he may not serve his sentence in Ireland, is his surrender to Hungary precluded on these grounds?
84. Section 7(i) of the Act of 2005 provides:-
“Subject to subsection (2), the Minister may, upon receipt
of a request in writing from a sentencing country to consent to the
execution in the State of a sentence imposed in the sentencing country,
or part of a sentence so imposed, on a person who fled to the
State before he or she—
give such consent.”
85. A number of conditions are set out in subsection (2) which were not raised in and are not relevant to this appeal. As subsection (1) above requires that the appellant had fled Hungary before he could obtain the benefit of the section, and as he had not fled, and as he is not entitled to the benefit of the section, it was submitted that his rights under the Constitution and the European Convention on Human Rights, referred to as “the ECHR”, have been breached.
86. However, there is no mandatory requirement under the Framework Decision or under the Act of 2003, as amended, providing that the appellant has a right to serve his sentence in the requested State.
87. There is an option exercisable by a member state under Article 4(6) of the Framework Decision. That Article provides:-
87. However, there is no general right, under the Constitution or the ECHR, mandating a state to provide facilities to a person who has been requested by another state under an EAW, to serve a sentence in the executing member state rather than in the issuing member state. Thus, there is no general breach of a right under the Constitution or the ECHR.
“The executing judicial authority may refuse to execute the European Arrest Warrant:
6. If the European Arrest Warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying on, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law;”
88. No cases were cited before this Court, and I know of none, which prohibit the surrender by a member state of a convicted person to serve a sentence lawfully ordered in another member state, on the grounds of interference with family life.
89. In essence, the appellant is submitting that there is a mandatory requirement on the State to enable him serve the sentence which was imposed in Hungary, in Ireland. Such a mandatory requirement does not fall upon the State and the appellant has no such right. Indeed, it is essentially what is at the heart of any extradition or surrender scheme entered into between nations, that persons will be extradited or surrendered in accordance with the treaty or other agreements.
90. However, while under the scheme of the EAW the appellant may be surrendered to serve his sentence in Hungary, he may then apply under the Transfer of Sentenced Persons Act, 1995, to serve his sentence in Ireland.
91. The fact that the appellant may be legally surrendered to Hungary pursuant to the Act of 2003, as amended, before he can apply to serve his sentence in Ireland is not a breach of his rights under the Constitution or the Act of 2003, as amended. However, I find it very hard to understand why there should be a delay of 18 months as was submitted as an estimate to the Court, before the appellant would be transferred to Ireland under that scheme. A delay of that extent does not on its face appear reasonable.
92. It is very understandable that the appellant would not wish to serve his sentence in Hungary, and would prefer to be imprisoned in Ireland, where his family lives. However it is an inherent aspect of an extradition or surrender system that it may cause disruption in a family. As Fennelly J. said in Minister for Justice, Equality and Law Reform v. Gheorghe  IESC 76 at para 48:-
93. In the High Court in the instant case,  IEHC 72, Peart J. held:-
“It is a regrettable but inescapable incident of extradition in general and, as in this case, surrender pursuant to the system of the European arrest warrant, that persons sought for prosecution in another state will very often suffer disruption of their personal and family life. Some states have historically refused to extradite their own nationals, but that is a special case. The Framework Decision expressly provides that, in Article 1, that it does not ‘have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in article 6 of the Treaty on European Union.’ No authority has been produced to support the proposition that surrender is to be refused where a person will, as a consequence, suffered disruption, even severe disruption of family relationships.”
“The principles are clear. But without weighty facts to support the Article 8 objection, really the principles are of little importance. In my view, there is nothing exceptional in the respondent’s family circumstances. They are features which apply in the case of the majority of respondents who may have moved to this jurisdiction with their family before their surrender is sought, and also in respect of Irish citizens who have lived their lives in this State and where their families are settled and embedded. In all such cases a surrender of a family member, be it father or mother in particular, will case great distress and disruption to family life. It will for a period of time separate that family member from the family unit. While that is in all cases regrettable, it is nevertheless an inevitable consequence, just as the imprisonment of any person to a domestic sentence does.
The obligation to surrender persons for either prosecution or for the service of a sentence will in most cases outweigh any objections on the disruption which that surrender will cause to both the respondent and his family. It requires exceptionally strong, and indeed exceptional facts for a respondent to succeed in defeating a surrender application based on Article 8 of the Convention and/or under the Constitution. Those facts are absent from this case.”
94. I would endorse the above analysis by the learned trial judge and his application of the law to this case, and dismiss the appellant’s appeal on this ground.
Hungary does not surrender a citizen
95. The next issue before the Court is whether the fact that Hungary would not surrender a Hungarian citizen to Ireland in respect of offences of the kind giving rise to this request, would result in a lack of reciprocity, so that the request in this case ought to be refused pursuant to s. 37 of the Act of 2003, as amended, or otherwise.
96. Article 4 of the Framework Decision provides grounds for optional non-execution of an EAW. The very fact that they are optional indicates that they are not mandatory.
97. It appears that Hungary has implemented Article 4(6) as a ground for refusal of a surrender. This arises where a state, such as Hungary, undertakes to execute the sentence of a requested person in accordance with their domestic law.
98. Ireland has not implemented this option.
99. The appellant has, in essence, submitted that reciprocity is an element of the scheme of surrender by way of an EAW. In fact it is not a factor, as submitted on behalf of the appellant, in the scheme of surrender established under the Act of 2003, as amended and the Framework Decision. The matter has been addressed in some recent cases in the High Court.
100. In Minister for Justice, Equality and Law Reform v. Sulej and Puta  IEHC 132, an issue arose as the Czech Republic did not surrender its own citizens for the offences before the Court. It was submitted that this lack of reciprocity constituted discrimination contrary to Czech constitutional principles and that the warrants could not have been duly issued. Peart J. held:-
101. In this Court, in a judgment with which the other members of the Court agreed, Fennelly J. stated at paragraph 10:-
“Without dealing with the submissions of counsel in any detail, it is perfectly clear that even if there is some disparity between the manner in which the Framework Decision has been introduced into Czech law and how it has been given effect to in this State, there can be no reason resulting from that fact, if it be such, why this State should refuse to surrender in accordance with the requirements of the Framework Decision and the Act here. There can be no question of this Court examining how another Member State has given effect to it in some way different to this State, that we here should not honour obligations which we have entered into.”
102. The disparity in application of optional measures in the surrender procedures agreed in the Framework Decision and applied to member states does not give rise to a breach of rights to the appellant pursuant to s. 37 of the Act of 2003, as amended.
“The appellants wish this Court to rule that the provisions of Czech law which implement the European Arrest Warrant are contrary to Czech constitutional principles. This Court could not conceivably pass judgment on the validity of Czech legal provisions. That is patently exclusively a matter for the domestic legal system.”
103. There is no merit in this issue on the appeal and I would dismiss this ground of appeal also.
104. The issue of reciprocity as considered in Minister for Justice, Equality and Law Reform v. Bailey  IESC 16, arose under the terms of Article 4.7 of the Framework Decision and the Act of 2003, as amended, in unique circumstances which have no relevance to the circumstances of this appeal and thus that case may be distinguished.
105. The next issue as agreed by the parties was whether the offence identified in the warrant the subject of this appeal, violates the rules of public road traffic by negligence causing death, and/or the facts as alleged against the appellant correspond to an offence under Irish law?
106. This issue was addressed fully in written submissions by the appellant. It was submitted that it would not be permissible under Irish law to impose liability for negligently causing death in the circumstances described in the warrant, and that accordingly, there was no correspondence between the criminal conduct identified in the warrant and criminal conduct under Irish law.
107. The issue of correspondence was also addressed fully in the written submissions filed on behalf of the Minister, and it was submitted that there was correspondence.
108. The law applicable to the issue of correspondence is well established.
109. In Tobin (No. 1)  4 I.R. 43, in the High Court, Peart J. considered the issue of correspondence. While that was a different EAW, it did relate to the same offence, and thus the issue of correspondence was identical. Peart J. held at 61 to 62:-
110. In this case in the High Court in the judgment delivered on the 11th February, 2011, Peart J. said:-
"In my view, the Court cannot get into the business of trying to establish an identical offence here based on the facts. There are a variety of road traffic offences which the act alleged against the [appellant] could give rise to based
on the known undisputed facts. It is not disputed that the [appellant] was driving far in excess of the permitted speed limit, even if the speed itself was only between 70 and 80 kph. There was a low speed limit applicable and it was greatly exceeded. There is no doubt that for whatever reason this car veered to the right and mounted the pavement and hit the two children.
Counsel for the [appellant] quite correctly points out that the outcome of the
accident should not necessarily determine the question of dangerous or reckless or negligent driving. In other words, it must be the act of driving rather than how seriously persons were injured which must be looked at for correspondence, and he submits that driving at 70 kph in what the [appellant] described as a careful manner given the presence in the car of both his young son and his heavily pregnant wife is not an inherently dangerous act even if it was in contravention of the speed limit, and that there is no evidence of any dangerous driving as such, and which would be sufficient to lay a charge of dangerous driving in this country.
Under s. 53 (1) of the Road Traffic Act, 1961 as amended, it is an offence to drive a vehicle in a manner (including speed) which is dangerous to the public. In this country a person in the position of this [appellant] might easily be charged with this offence under s.53 and face a penalty based on the fact that driving in question caused death. Section 53 (2) provides for the applicable penalties, including in a case where the dangerous driving causes death, a term of imprisonment. But having been charged with that offence, it is quite possible that the facts as we know them would not amount to dangerous driving under Irish law. However that does not mean that he could not be convicted of any offence. Subsection (4) provides that where a person has been charged with dangerous driving under s. 53(1) he may be found guilty of a lesser offence of careless driving under s. 52. Section 51A, as inserted, also provides for a lesser offence again of driving without reasonable consideration. There is also the summary offence of exceeding the speed limit, which is not excluded from the consideration of correspondence by the definition in s. 5 of the Act.
I am satisfied that on the facts alleged, even excluding any which may be in controversy, the acts alleged against the respondent would give rise to a number of possible offences in this country as indicated. This ground must fail accordingly.”
111. I would affirm the determination of the learned High Court judge on this issue. The facts are clearly established, these include that the appellant was driving at speed, the car mounted a footpath, killing two children. The constituents of an offence at Irish law are made out. I am satisfied that there is correspondence and that the appellant’s ground of appeal on this issue should be dismissed.
“Having heard those submissions, and even though references are made to some decisions in relation to correspondence which post-date the earlier judgment of mine on the first warrant, I do not consider it necessary to revisit my earlier finding in relation to correspondence. While it is true that the Hungarian offence is one of negligent driving causing death, and while it is also true that in earlier versions of this warrant the term "reckless" was used, these features do not alter or affect the Court's task as required by section 38 or section 5 of the Act of 2003. This Court must look at the facts contained in the description of the offence in the warrant and be satisfied that if those acts were done here an offence would be committed. That is the basis on which the Court proceeded on the last occasion, and there is no reason to take any different approach on this occasion, or to reach any different conclusion. Accordingly I am satisfied that the offence corresponds to an offence here of dangerous driving/dangerous driving causing death contrary to section 53 of the Road Traffic Act, 1961, but would correspond also for the purposes of section 5 of the Act of 2003 to a number of lesser offences identified in my earlier judgment.”
Compliance with s. 11 of the Act of 2003
112. The query raised on the agreed issues was whether the warrant the subject of this appeal complies with the provisions of s. 11 of the Act of 2003, as to the manner in which the sentence imposed on the appellant is described having regard to all the circumstances (including the various warrants the subject of and the representations made to this Court on Tobin (No. 1) as to the nature of the sentence imposed on the appellant).
113. Section 11 of the 2003 Act, as amended provides that:
114. Article 8(1) of the Framework Decision provides that:
115. The EAW states that the length of the custodial sentence imposed is “3(three) years of imprisonment to be served in a low-level security prison.” Further, it is stated that the remaining sentence to be served is “3 (three) years in a low-level security prison.”
“(1) A European arrest warrant shall, in so far as is practicable, be in the form set out in the Annex to the Framework Decision.
(1A) Subject to subsection (2A), a European arrest warrant shall specify –
(g) (iii) where that person has been convicted of the offence specified in the European arrest warrant and a sentence has been imposed in respect thereof, the penalties of which that sentence consists.”
116. It was submitted on behalf of the appellant that there was a lack of clarity in respect of the sentence to be served.
117. The warrant states clearly the length of sentence, three years. The Court at second instance made provision for the appellant to be released on a form of parole when he had served half his sentence, but this did not alter the length of the sentence.
The High Court  IEHC 72 held:-
118. I would affirm the judgment of the High Court on this point.
"Clearly the warrant on the last occasion and indeed the warrant on the present application could have been more expansive in describing all the features of the sentence in more detail, but the requirement under section 11 is to set forth the sentence. The sentence imposed was one of three years, even if there is an opportunity of release after eighteen months was allowed on appeal. The [appellant] was legally represented when this sentence was passed and on the appeal when the appeal modified the sentence. It can be presumed that those lawyers informed the [appellant] of the result of the appeal. It is hard to imagine that the [appellant] was not aware of the nature and length of sentence which has been imposed. I do not believe that he has been mislead by the warrants which have emanated from the issuing state such that the warrant should be found not to comply with section 11 of the Act of 2003.”
119. It would be fair to say that this was not the best point raised on behalf of the appellant. In this case the information on the EAW, and the additional information before the Court, including the affidavit of the appellant, made it clear that it was a sentence of three years. I find no breach of any right of the appellant.
Prior to Accession?
120. The query raised was whether the provisions of the Act of 2003, as amended, apply so as to enable the surrender of a person to a European Union state in respect of a conviction imposed by the Courts of that state prior to its accession to the European Union.
121. The offence in this case took place in April 2000, the trial of the appellant was in May 2002 and the Act of 2003 commenced in Ireland on the 1st January, 2004. Hungary joined the EU in May, 2004, and the Minister made the designation for the purposes of the Act of 2003 on the 5th May, 2004 in the European Arrest Warrant Act, 2003, (Designated member States) (No. 3) Order 2004 (S.I. No. 206/2004).
122. This ground of appeal is misconceived. Section 4 of the Act of 2004 states:-
123. The Act of 2003 was enacted to give effect to the Council Framework Decision of the 13th June, 2002 on the European arrest warrant and the surrender procedures between member states; to amend the Extradition Act, 1965; and connected matters. Thus, there was a time of transition in Ireland, and in other member states, from a scheme of extradition to a scheme of surrender by way of the EAW.
“This Act shall apply in relation to an offence, whether committed or alleged to have been committed before or after the commencement of this Act.”
124. Article 32 of the Framework Decision addressed transitional matters. It provided that requests received by member states after the 1st January, 2004, will be governed by the rules adopted by the Member States pursuant to the Framework Decision. However, member states were given an option, they could make a statement indicating that as an executing member state it would continue to deal with requests relating to acts committed before a date which it specified in accordance with the extradition system applicable before the 1st January, 2004. Ireland did not exercise this option. Instead it enacted the provision in s. 4 of the Act of 2003, as set out above.
125. Section 10(d) of the Act of 2003 does not alter the provisions of s. 4 of the Act of 2003 in any way relevant to the circumstances of the appellant.
The Act of 2003 states, and should be interpreted as, applying to offences committed before the commencement of the Act. The law on this issue has been stated clearly previously in relation to offences committed prior to accession: See Minister for Justice, Equality and Law Reform v. Altaravicius (No. 2)  2 I.R. 265 at 281 per MacMenamin J:-
"The respondent claims that the framework decision and the Act of 2003 are - inapplicable as the offences alleged predate Lithuania's membership of the, European Union. It is now necessary to deal briefly with these contentions.
No such restriction on surrender is set out in the framework decision or in the Act of 2003. Articles 3 and 4 of the framework decision, respectively, set out the mandatory and optional grounds for not executing an otherwise properly constituted European arrest warrant. Nowhere in those two articles is the restriction contended for by the respondent to be found. Article 32 of the framework decision allows a member state to make a statement (at the time of adoption of the Council decision) relating to dealing with requests as executing member under the previous extradition regime where acts committed before that date to be specified on the statement. Only Austria, Italy and France made such statements. It is clear that the framework decision is intended to apply to all acts alleged to have been committed prior to its commencement save as otherwise expressly limited. To imply such a restriction on surrender to another member state would be illogical and without any legal foundation. Such an implication would not only be unwarranted, but would be inconsistent with the purpose and intent of the scheme established by the framework decision. In acceding to the European Union on the 1st May, 2004 and to the framework decision, Lithuania took on the binding effect to surrender (and request surrender) in accordance with the framework decision.
It has not been the case under previous extradition legislation nor under international arrangements or treaties on extradition that a person would not be surrendered to a requesting state in respect of offences which predate the legislation or the treaty. There is no authority for such a proposition in domestic case-law or under the Extradition Act 1965, as amended.
Furthermore, the Act of 2003, at s. 4, expressly provides for retrospectivity in relation to offences:
126. I adopt and apply this analysis. The same analysis applies when both the offence and the conviction occur prior to the accession.
'Subject to subsections (2) and (3), this Act shall apply in relation to an offence, whether committed or alleged to have been committed before or after the commencement of this Act.'
Section 3 allows for the Minster for Foreign Affairs to designate a member state that has, under its national law, given effect to the framework decision. No argument has been advanced as to the alleged unconstitutionality of the Act due to retrospectivity and consequently it is unnecessary for this court to make any finding under this heading."
127. In the transition between the earlier extradition procedures and the current European arrest warrant procedures, the decision made by the Executive and the Legislature was that there be no reservation on this issue under Article 32 of the Framework Decision, and the domestic law was stated clearly in s. 4 of the Act of 2003. Thus, the applicable law is the Act of 2003, and this submission of the appellant should be dismissed.
Act not published
128. The next issue raised by the parties was the query as to whether the EAW and/or the proceedings brought on foot of it are invalid having regard to the fact that at the time of the issuing and thereafter endorsement of the EAW, the provisions of the Criminal Justice (Miscellaneous Provisions) Act, 2009, were not published or disseminated. In essence, the argument of the appellant was that there was an exercise of powers under generally inaccessible legislation.
129. On the 21st July, 2009, the Criminal Justice (Miscellaneous Provisions) Act, 2009, was signed into law by the President. On the 24th July, 2009, a notice in Iris Oifigiúil appeared stating that the Criminal Justice (Miscellaneous Provisions) Act, 2009, had been signed by the President on the 21st July, 2009, and accordingly became law. On the 25th August, 2009, the Criminal Justice (Miscellaneous Provisions) Act, 2009 (Commencement) (No. 3) Order 2009 (S.I. 330/2009), referred to as “the Commencement Order” brought into force the provisions contained in Part 2 of the Act of 2009, which amended the European arrest warrant legislation. On the 17th September, 2009, the EAW was issued by the Hungarian judicial authority seeking the surrender of the appellant. The EAW was endorsed by the High Court on the 14th October, 2009. On the 3rd November, 2009 the Act of 2009 was published. On the 10th November, 2009 the appellant was arrested.
130. It was submitted on behalf of the appellant that as the Act of 2009 was not published or disseminated until the 3rd November, 2009, that the application for the endorsement of the EAW was unlawful on the basis that the Act of 2009 was not generally available to the public.
131. The issue of publication and dissemination of the Act of 2009 was addressed in Minister for Justice, Equality and Law Reform v. Adach 3 I.R. 402, where Hardiman J. stated at page 407 para 18:-
Hardiman J. also stated at 410 to 411, paragraph 36:-
“It appears to me to follow from the foregoing [Article 25.4 of the Constitution] that the process of promulgation consists exclusively of the publication of a notice in Iris Oifigiuil, by direction of the President, stating that the Bill has become law. No other action appears to be necessary in order that the Bill becomes law and, in particular, the publication of the Bill itself, either in print or in electronic form, does not appear to be necessary. The Constitution might, of course, have prescribed another method of promulgating a Bill as law and it appears from an authority cited below that the European Union has in fact done so in relation to its laws. But that cannot take from the fact that the provisions of the Irish Constitution for the promulgation as law of a Bill signed by the President are as set out above.”
132. I apply that analysis to this case. In this case the Act of 2009 was signed into law by the President on the 21st July, 2009, a notice appeared in Iris Oifigiúil on the 24th July, 2007, and the Commencement Order was made on the 25th August, 2009. The warrant was issued in Hungary on the 17th September, 2009 and endorsed by the High Court on the 14th October, 2009. Thus, the Bill had become law prior to the steps taken in Hungary or by the High Court.
"The question of whether a Bill passed by the Oireachtas has become law is one to be answered exclusively in terms of the Irish constitutional arrangements which are set out in Article 25. The fact, if such were to be established, that the European Union or Council of Europe have adopted a different method for promulgating laws which these bodies are entitled to make is of no relevance to the question of whether an Irish measure has become law in accordance with the Constitution. As we have seen, this envisages promulgation as a law by the publication of a notice in Iris Oifigiuil stating that the Bill has been signed by the President and has accordingly become law. It is common case that this was done. If the nature of the law thus promulgated were to permit a citizen to be deprived of his liberty under a law which was not at all accessible, this might give rise to an issue under article 5 of the European Convention on Human Rights. I express no views on the merits of any such issue. But that is not the case here: the law in question is one regulating the right of access to the Supreme Court by way of appeal, which is a type of law envisaged by the Constitution itself. Moreover, it is plain from the transcript that the respondent could have made an application for leave to appeal and that this possibility was expressly drawn to his attention by the trial judge.”
133. The appellant was not arrested until the 10th November, 2010, by which time the Act of 2009 had been published and disseminated. Thus, there was no question of the appellant being deprived of his liberty under a law which was not accessible. Further, the Minister was acting in accordance with the law when the initial steps were taken under this EAW. Consequently, I find no merit in this ground of appeal.
134. I have considered carefully the issues raised by the appellant on this appeal. For the reasons stated on the issues referred to above, I would dismiss the appeal. Further, no other issue canvassed warrants the prohibition of the appellant’s surrender. Consequently I would dismiss the appeal and affirm the order of the High Court that the appellant be surrendered to such person duly authorised by the Republic of Hungary to receive him.
9 April 2000 Date of accident.
10 April 2000 Appellant attends at police station and gives
28 August 2000 Appellant writes to police seeking return of
19 September 2000 Appellant departs for Ireland.
9 October 2000 Appellant returns to Hungary.
November 2000 Appellant due to return to Ireland.
7 June 2001 Appellant furnished with indictment.
14 June 2001 Appellant writes letter to be passed on to Court asking that his presence be excused.
19 June 2001 Original trial date.
April 2002 New trial date.
7 May 2002 Date trial ultimately proceeds.
8 November 2002 Appeal Court decision handed down.
1 May 2004 Hungary joins EU
5 May 2004 Hungary designated under the Act of 2003
12 October 2004 International arrest warrant issues
April 2005 (date unspecified) First warrant issues
16 June 2005 First warrant transmitted to Minister
27 April 2005 Date on face of second warrant
20 December 2005 Application to endorse first warrant.
12 January 2006 Arrest of appellant on foot of first warrant.
29 March 2006 Second warrant delivered to Minister.
13 April 2006 Third amended warrant delivered.
19-20 December 2006 Application for surrender heard by High Court.
12 January 2007 Application refused by High Court.
30 January 2007 Notice of appeal lodged on behalf of the Minister.
3 July 2007 Hearing of Appeal by the Supreme Court. Application for surrender rejected.
25 February 2008 Reserved judgment delivered by Supreme Court.
21 July 2009 Criminal Justice (Miscellaneous Provisions) Act 2009 enacted by the Oireachtas; “fled” requirement removed.
24 July 2009 Iris Oifigiuil notice re Act of 2009
25 August 2009 Relevant sections of 2009 Act come into force (S.I. 330 of 2009).
17 September 2009 Date of issue on face of fourth warrant.
14 October 2009 Warrant endorsed by High Court.
3 November 2009 Text of Act of 2009 published by Government Publications
10 November 2009 Appellant is arrested.
21 May 2010 Letter from Central Authority, Department of Justice to Ministry of Justice Hungary "The appellant claims that the EAW does not comply with section 11(1)(g)(iii) of the EAW Act, 2003 in that it does not set out the penalties of which the sentence consists of. This appears to be a reference to the fact that the EAW does not record that the final 18 months of the three year sentence were "suspended" (using our terminology) by the Pest County Court at second instance.
The variation of sentence at second instance is not referred to on the face of the EAW. Please confirm whether the sentence was varied at second instance and whether this is the sentence for which the appellant’s surrender is sought?”
14 June 2010 Letter from Ministry of Justice Hungary to Central Authority "the duration of the remaining imprisonment sentence to be served is 3 years.
22 June 2010 Case at hearing in High Court.
23 June 2010 Case at hearing in High Court.
24 June 2010 Case at hearing in High Court.
22 July 2010 Case at hearing in High Court.
11 February 2011 High Court orders surrender of appellant.
9 March 2011 High Court certifies appeal raises points of law of exceptional public importance.
9 November 2011 Appellant surrenders bail.
31 January 2012 Appeal at hearing in Supreme Court
1 February 2012 Appeal at hearing in Supreme Court
2 February 2012 Appeal at hearing in Supreme Court
15 February 2012 Appeal at hearing in Supreme Court
19 June 2012 Judgment in Supreme Court