Judgments Of the Supreme Court
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|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
Denham C.J. 98/11
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM Applicant/Respondent
JUDGMENT of Mr. Justice Hardiman delivered the
19th day of June, 2012.
This is a unique and unprecedented case under the European Arrest Warrant procedure. The Minister for Justice, as Central Authority, seeks the surrender of Mr. Tobin to Hungary, there to serve a sentence said to be of three years duration (but this is uncertain: see below) imposed on him in respect of a road traffic offence arising out of a tragic accident in which he was involved, on the 9th April, 2000.
The appellant, Mr. Tobin, is an Irish citizen of unblemished character who not merely has no previous convictions, but has had a distinguished career in an Irish public company. At the time of the traffic accident referred to he was in Hungary seeking to develop the business of the Irish public company.
Many criminal issues that come before the Courts reveal facts that seem remote from the concerns of ordinary people who do not commit crime and are not likely to be suspected of having done so. This case is not in that category. Firstly, it has its origins in an appalling tragedy in which two Hungarian children lost their lives in a road traffic accident. The case illustrates how a perfectly ordinary person, of good character, can in a moment, and without any intentional or malicious act on his part, become first a suspect, then a convict sentenced to three years in a foreign jail, and then be pursued for many years on a number of inconsistent grounds. The case, accordingly, is not without relevance to anyone who travels abroad, and especially to anyone who drives a car when abroad.
It must be said at the outset that the combined effect of the tragedy, and the impossibility of life as a fugitive for a respectable person has led the appellant to offer actually to serve the sentence, whose justice - and that of the underlying conviction - he has never accepted, provided he could do so in Ireland. But this offer was rejected on the basis that there was no provision for it in Irish law.
The respect in which the case is unprecedented is that it represents the second attempt by the Central Authority to secure the delivery of Mr. Tobin to Hungary to serve this sentence. The first attempt, initiated in 2004, was heard and determined by the High Court in December, 2006. The application was refused. The Central Authority appealed to this Court where he was equally unsuccessful. The judgment of this Court was delivered on 25th February, 2008. The Oireachtas then changed the law and the Central Authority claims to be entitled to seek Mr. Tobin’s surrender as though the first case had never happened. This is acknowledged, very realistically, to be “terribly harsh” on Mr. Tobin and his family but that is said to be irrelevant.
It may also be noted that if a Hungarian citizen were to be convicted of a serious road traffic offence in Ireland and sentenced to imprisonment, Ireland would not be in a position to seek his delivery from Hungary to serve this sentence. This is because the Hungarian government has availed of provisions in the Framework Decision on the European Arrest Warrant. These enable a Hungarian citizen in similar circumstances to serve his or her sentence in Hungary. In the present case, Mr. Tobin offered to serve the sentence in Ireland, but this offer was refused. There was no legal provision for it. When the Central Authority launched this second attempt, Mr. Tobin felt he had no option but to surrender his bail and go into custody in a convict prison, to mitigate the period he would spend in a Hungarian jail if the Courts gave him no relief. He went into custody in November 2011.
As will appear in this judgment, I have several very grave concerns about the Central Authority’s application in the present case. One of these concerns relates to the grossly abnormal period of time during which Mr. Tobin, the father of a young family, has been under the threat of forcible separation from his family. A detailed chronology appears later in this judgment and it is discreditable both to this State and to the requesting State, in my opinion.
The tragic accident in which Mr. Tobin was involved, and which will be discussed in some detail below, took place in April, 2000.
The Hungarian trial on a road traffic charge, which was initiated in June 2001, took place in May 2002. An “International Arrest Warrant” (not now relied upon) was issued in 2004 and a European Arrest Warrant in 2005. The first attempt by the Central Authority to have Mr. Tobin forcibly delivered to Hungary on foot of a European Arrest Warrant took place between 2005 and 2008. These proceedings are now admitted to have been flawed. It was specifically contended by the State on the hearing of this appeal that Mr. Tobin had been correctly successful in resisting his surrender. In the State’s view, the problem related to a provision of the European Arrest Warrant Act, 2004 which “should never have been in the Act in the first place”. But this was scarcely Mr. Tobin’s fault. He fought the case on the law as it stood. After he won, the law was changed and the State started all over again, taking years in the process. Mr. Tobin, like any citizen in his position, cannot change the law and demand a re-match. But the Central Authority is doing just that.
By the time the State’s misconceived proceedings had been finally dismissed in February 2008, a period of eight years less two months had elapsed since the accident. The next step in this tangled history was the enactment of the Criminal Justice (Miscellaneous Provisions) Act, 2009. The effect of this Act was to delete from the Act of 2003 the provision which enabled Mr. Tobin to be successful in the previous proceedings.
On the 17th September, 2009, 9˝ years after the accident, the Hungarian authorities issued a further European Arrest Warrant seeking the surrender of Mr. Tobin. When the latter was arrested under this warrant, he, not surprisingly, replied:
I agree with the statement of O’Donnell J. in his judgment in this case that “to a large extent, the question on this appeal is whether Mr. Tobin’s immediate and understandable reaction to arrest and caution was correct as a matter of law”.
The Accident and the Hungarian Proceedings.
“I thought it was all over after the Supreme Court”.
The appellant, Ciaran Tobin, is an official of an Irish Public Company in which he has worked since he left school. While working full time with that Company he qualified first as a Certified Chartered Accountant (FCCA) and subsequently proceeded to the degree of Master of Business Administration (MBA). These are coveted qualifications, not achieved without serious and sustained endeavour and ambition by a person working full time. He has achieved a position of considerable seniority in his official career. He is married with two children and lives in Dublin. He is acknowledged to be a person of excellent character.
Surrendering Irish Citizens.
In my judgment in the case of Minister for Justice v. Bailey (Supreme Court, unreported, 1 March, 2012) I compared French legislation with that existing in Ireland and pointed out that there was considerably greater scope for the French to request the surrender of a person from Ireland to France, than for Ireland to request the surrender of a French person, or a person who happened to be in France, to Ireland. This case, too, illustrates that Ireland is prepared to surrender its citizens, or the citizens of other countries who happen to be in Ireland, to countries which would not themselves deliver their own citizens or visitors to Ireland if the positions were reversed. I do not believe that this aspect of the European Arrest Warrant arrangements, which are within the control of the Irish authorities, are widely known. Nor do I believe that it is widely known that those provisions can be used forcibly to deliver a person of good character on road traffic charges.
This confusion is not surprising because when the European Arrest Warrant “Framework Document” was first drawn up in 2001 it related exclusively to Terrorist offences. It was subsequently, in the ten day period immediately after the 9/11 outrage in New York, extended to a great number of other offences many of which are not offences of specific intent at all. Again, I do not think that this aspect of the European Arrest Warrant arrangements are widely known, or were widely or clearly explained at the time.
What sentence was imposed?
Where a State requests another sovereign State to deliver one of its citizens to the requesting State for the purpose of undergoing a sentence which has been imposed upon him, it appears to me to be a very minimal and very basic requirement that the requesting State should, in the document in which it makes the request, specify the sentence which the citizen will undergo if forcibly delivered, and specify it clearly and without ambiguity.
A requirement to this effect appears to me to be imposed in any event by s.11 of the European Arrest Warrant Act, 2003.
Insofar as relevant this provides:
“11(1) A European Arrest Warrant shall, insofar as is practicable
In 1997 Mr. Tobin was sent by his employer to Hungary to manage and develop a business which his employer had acquired in that country. He was to work in Hungary for a period of three years, from 30 November, 1997. He was accompanied in Hungary by his wife and later an infant son. A further child, a daughter, was subsequently born: his wife was expecting this second child at the time of the accident described below.
In the month of April, 2000, the appellant was still on his posting to Hungary. He and his wife had been visited there by an Irish couple with whom they were friendly. On the 9th April, 2000, the appellant, his pregnant wife, their child, and their Irish guests, were doing some sightseeing in the area of Visegrad, Hungary. The weather was good and traffic was light.
The account of events which follows is taken from the appellant’s affidavit. It is important to note that this affidavit has not been challenged or contradicted in any way at all by or on behalf of the State or the Hungarian authorities. Its contents are therefore presumptively true. His evidential statement to the Hungarian Police is likewise uncontroverted.
On Sunday the 9th day of April, 2000, the appellant was driving a Volvo 40 motor car along a public highway in the area mentioned. He had the persons mentioned above as his passengers. The street featured a raised area on which, relevantly to this case, was a bus stop and an area for people waiting for the bus to stand. This area was separated from the street by a kerb.
The car was not the appellant’s personal property but was supplied to him by the Irish public company for which he worked. Like many modern cars it was equipped with a range of electronic indicators intended to indicate malfunctions or items that needed to be adjusted. The vehicle was fully and regularly serviced at the expense of the appellant’s employers. Apart from this, the appellant had twice taken it to the garage complaining that certain indicators including that relating to the anti-lock braking system (ABS), had lit up without apparent reason. He was assured by the experts that this was an electrical fault only and did not indicate any fault in the functioning of the vehicle. It was also a feature of the vehicle, according to the appellant’s uncontradicted evidence, that airbags was programmed to deploy in the event of an impact at a speed above 50 kilometres per hour, or about 30 miles per hour.
On Sunday the 9th of April, 2000, the appellant was involved in a traffic accident at the location mentioned above which, very tragically, involved the deaths of two people, children who were waiting in the vicinity of the bus stop mentioned above. The devastation caused by this tragedy cannot be understated the appellant has made no attempt to do so. But he denies that there was any criminal act or omission on his part, either in the driving of the car or in its maintenance, which caused the accident.
The appellant says that he was driving along the public highway at a speed of about 70 kilometres per hour, or about 42 miles per hour. The husband of the visiting couple was sitting beside him in the front passenger seat; their two wives and the Tobins nine month old child were sitting in the back. Mrs. Tobin, as has been mentioned, was pregnant at the time. As he drove, a car pulled out of a side street and on to the major thoroughfare along which the Tobins were driving. He thought it wise, as that car came closely in front of him, to pull into the only other available lane, that nearest the right hand kerb. This involved a movement to the right. After executing this movement, Mr. Tobin attempted to straighten up the car so that it could proceed in the normal fashion in the right hand lane. But the vehicle was suddenly and entirely unresponsive to efforts to straighten it up on the road or to apply the brakes. In an instant - motor accidents, notoriously, happen in a much shorter period of time than it takes to describe them - his car had mounted the kerb on the raised area and struck the two children standing there, with the appalling consequences already set out.
The circumstances of the accident giving rise to these proceedings, accordingly, can be briefly summarised. The driver, a man of good character, of mature years, was driving a well maintained, somewhat sedate car which is the property of his employer along a two-lane public highway in Hungary. He was accompanied by his infant child, his pregnant wife, and two friends. The highest speed at which the prosecution alleged the car was driven is 71-80 kilometres per hour or approximately 42 to 48 miles per hour. The car had been meticulously maintained at the employer’s expense. The only odd feature of its performance, the unexplained activation of certain indicators, has been drawn to the attention of the servicing garage and dismissed as insignificant in relation to the actual functioning of the car. The driver executed a normal traffic manoeuvre involving going from one lane to another, but quite suddenly the car became unresponsive both to steering and to brakes. It mounted the kerb on a reserved area with utterly tragic consequences.
Events after the accident.
Immediately after the accident the emergency services were called, including the police. Arrangements were made for the care of the appellant’s child who, because he was seated in a backwards facing child seat, had not registered the dramatic events which had occurred.
When the Hungarian police arrived they began to take statements which were clearly of a very formal nature and which indeed, in the ordinary course of events, would have been part of the criminal trial record. The appellant and his passengers were shocked and distressed. The appellant and his wife, during their stay in Hungary, had become friendly with a young English speaking Hungarian woman whose father they knew to be a lawyer. They do not appear to have been previously acquainted with the lawyer himself. But they contacted the daughter with the result that she and her father arrived at the scene. The young Hungarian lady interpreted between the police and the Tobins and their passengers. The Tobins and the police had no language in common.
After some time at the scene, and no doubt in view of the shock and distress of the Tobins and others, the police suggested that the statement taking process continue the following day at the police station. They required the attendance for that purpose of Mr. and Mrs. Tobin and their two guests. The police specifically told the lawyer’s daughter, who was acting as interpreter, to come as well.
The significance of this last detail is considerable. It transpired that, at the eventual trial of Mr. Tobin in Hungary, statements taken in the police station from the Tobins and their passengers were excluded from evidence on the basis that they had been translated by a person who was the daughter of a lawyer who had previously been advising the defendant. This was done notwithstanding that, having been warned of the prosecution’s attempt to exclude their accounts, the Tobins and their witnesses had reiterated their statements at the Polish Consulate in Dublin. The statements taken at the police station existed both in Hungarian and in English. This matter will be further discussed below.
It appears from the documents put before the Court that the statements of the Tobins’ and their witnesses were taken by questions and answer by a senior officer of the Hungarian Police. Mr. Tobin gave his account as summarised above. The police took possession of his car. Mr. Tobin says, without contradiction, that due to the rules of the Civil Law system as they exist in Hungary, it was not possible for him to have the vehicle examined but he requested through his lawyer, on 10 April 2000, that the police do so and in particular that they check the brakes, indicators and the speed at which the vehicle’s airbags should deploy, said by him to be 50 kilometres an hour. If they did this, it does not appear to have formed part of the record of the trial. On the formal protocol or minutes of the interrogation, Mr. Tobin is described as “Suspect”, Dr. Tibor Soós as “Defence Counsel” and Ms. Káta Soós as “Interpreter”. No objection was taken to her acting in that capacity, indeed the police required her presence for that purpose.
After a significant delay, Mr. Tobin was charged with a Hungarian offence of negligent driving causing Death, In a Common Law country, such as Ireland, Britain, America, Canada, Australia etc., such a charge would involve an obligation on the person charged to attend Court. But this is not so in Hungary: a person charged with such an offence can remain away from Court and, if he wishes, can be represented by lawyers at the Court proceedings. It is now agreed by both sides that this is so, and that is what Mr. Tobin did.
The basis on which Mr. Tobin was convicted of the offence by the Hungarian Court is known to us from the warrants and the documents associated with them. As in another respect, to be discussed below, the account given in the four warrants which have been issued are not identical. But the account given in the third and fourth warrants, the latter being the one grounding these second proceedings, are identical. From this it appears that the Hungarian Court found that the defendant was guilty because:
It is clear that the finding that the accused steered to the right “for unknown reasons” can only have been come to on the basis of ignoring the statement of the accused, Mr. Tobin, which gave a specific reason why he steered to the right: it was because a car from a side road had pulled out closely in front of him. But the Court had no regard to this statement apparently on the basis, as set out above, that he had been translated by a person who was the daughter of the defence counsel. The consequences of this development will be considered below. The Court did not disbelieve his account or consider it incapable of explaining the accident: it simply ignored what Mr. Tobin and his witnesses had to say. For some reason the prosecution thought it important to exclude Mr. Tobins account from being considered by the Court.
“The accused steered to the right for unknown reasons and, due to this sudden movement of the steering wheel, and due to the speed, being excessive compared to traffic conditions, the vehicle went up on the side walk which was separate from the road by a raised stone edge at a speed of 71 - 80 kilometres per hour…”. (Emphasis supplied)
Notwithstanding the fact that it is now agreed that Mr. Tobin was under no obligation to attend at the Court proceedings, the Central Authority’s first attempt to have him forcibly delivered to Hungary to serve a sentence pursuant to the provisions of the European Arrest Warrant Act, was taken on the absolutely specific basis that he had “fled” from Hungary. This is now admitted to be quite false. But it was the basis of the first proceedings which the State fought tooth and nail against him and, when it lost in the High Court, appealed to this Court. It is now said that this was all based on a mistake. But the mistake, manifestly, was that either of the Central Authority or of the Hungarian authorities. It was certainly not that of Mr. Tobin or his advisers. No-one has taken responsibility for the “mistake”, and therefore no-one has explained it.
It is not clear how precisely the Hungarian Court came to its determination of the speed at which the car mounted the side walk, or how the speed is said to have contributed to this. It is a speed slightly in excess of that at which Mr. Tobin said he was driving along the road when the car pulled out in front of him. The airbags on his vehicle did not deploy and Mr. Tobin, through his lawyer, had suggested an investigation of why that was since they were meant to deploy on impact at a speed greater than 50 kilometres per hour. This does not appear to have been done, and as Mr. Tobin said without contradiction in his affidavit “I was unable to appoint my own expert to examine the car under the inquisitorial Hungarian Criminal Justice system”. This is plainly a significant matter having regard to the fact that the speed of the vehicle and the allegedly unexplained movement to the right, were the entire engine of the Court’s finding. It is important to bear in mind that the sentence was imposed for negligent driving causing death, which involved a prison sentence rather than for speeding or any purely regulatory offence.
In the argument on the hearing of this appeal, the State’s first set of proceedings, initiated on the 2004 Warrant, were referred to as “Tobin 1”. As the Irish law then stood, such proceedings could only have been taken on the basis that Mr. Tobin had fled from Hungary. But, as a matter of fact, he had not done so, as is now admitted. He was therefore entitled to succeed in those proceedings and did so for the reasons set out in the judgment of this Court of 25 February, 2008.
The legal consequences of the foregoing will be discussed below. But it is important to note the following uncontradicted facts. Mr. Tobin, in fact, returned twice to Ireland after the accident, once for a family wedding and then, later, because his term of secondment to the Hungarian Company was over. On the first occasion, he told the authorities he was going, asked for his passport (which he had produced to the police after the accident and had been retained by them) and was given it. After the wedding he went back to Hungary. He returned, with his family, on the second occasion because he no longer had a job in Hungary and needed to resume his employment in Ireland, and thereby support his family.
Notwithstanding the foregoing, the State, at the apparent urging of the requesting State, commenced proceedings for Mr. Tobins surrender back to Hungary on the basis that he had fled from that country. They persisted in this even after the facts set out above, clearly demonstrating that he had left Hungary quite openly and was not obliged to be present for the criminal proceedings were perfectly apparent. These “mistaken” and groundless proceedings arose from the issue of the “International Arrest Warrant” against Mr. Tobin in October 2004 and lasted until the judgment of this Court in February 2008.
The purpose for which Mr. Tobins surrender to Hungary was required was to serve a sentence said to be three years imprisonment imposed upon him by the Hungarian Court. There is, as will be seen, some grave uncertainty as to the precise nature and length of that sentence, and as to whether any part of it is, as the High Court judge and the State Solicitor thought, “suspended”, but that need not detain us now. It is fully discussed below. It appears, again from the uncontradicted evidence of Mr. Tobin, that the criminal case attracted enormous publicity and excitement in Hungary, so that it was moved to a larger courtroom than that originally appointed; that there was considerable Hungarian newspaper and social media publicity about it, uniformly hostile to Mr. Tobin; that subsequently both Mr. Tobin and the Irish Public Company that employs him has received “hate mail” about him and that he has even received death threats apparently emanating from Hungary. It is greatly to the credit of his employers that they have resisted demands from anonymous sources to dismiss Mr. Tobin.
By reason of the statutory machinery by which Ireland has implemented European Arrest Warrant arrangements, proceedings upon such a warrant are taken by the Central Authority. This is different, for example, from the position obtaining in England where the proceedings are taken in the name of the relevant official of the requesting State. In my opinion, however, no distinction can be made between the actions or omissions of the Central Authority and those of the requesting State. The Central Authority acts on foot of a warrant issued by the requesting State or some organ thereof, but the Central Authority itself is the moving party in the proceedings in this country. Accordingly, it appears to me that the Central Authority is fixed with knowledge both of the contents of the warrant issued in the requesting State and, of course, with the provisions of Irish law.
The first set of proceedings.
At the time of the first set of proceedings for Mr. Tobins surrender to Hungary, he and his family lived in County Meath. He was arrested there and held in custody until released on bail over the State’s objections. The effect of this on a perfectly respectable person, and on his family, can perhaps be imagined. The State then proceeded with the case even thought it must have been clear that the factual basis for the allegation that Mr. Tobin had fled was gravely unsound. They lost in the High Court but persisted with an appeal to this Court.
On the 27th February 2008, this Court gave reasons for a judgment which dismissed the State’s appeal and affirmed the decision of the High Court. In other words, it dismissed the application to have Mr. Tobin forcibly delivered to Hungary. This must have been, and is said on affidavit to have been, a great relief to Mr. Tobin and his family. It is important to realise that legal proceedings of one sort or another had been ongoing, or in prospect, ever since the date of the accident. The terror and insecurity that this represents to Mr. Tobin and his family is easy to imagine. So is the destructive effect on his career, and the effect on his wife and children.
It is also important to re-iterate that, had these proceedings concerned a Hungarian citizen who was involved in a tragic traffic accident in Ireland, no question of his surrender to Ireland would arise. Even if he received a custodial sentence, and even if there were no substantive or procedural challenge available to it, he would be entitled to serve that sentence in Hungary because the Hungarians have invoked a provision to that effect in the European Arrest Warrant arrangements. Ireland has not done so.
The earlier and later provisions of subsection (1) do not appear to me to be relevant.
In my opinion, s.11 of the Act contains a mandatory requirement to state in the European Arrest Warrant, and in specific terms, “the penalties of which that sentence consists”.
In this case, however, there is a high level of confusion and actual contradiction on this vital topic. The Hungarian authorities have issued a total of no less than four European Arrest Warrants in respect of Mr. Tobin. They have also issued another document described as an “International Arrest Warrant” which is not relied upon in these proceedings.
The four separate European Arrest Warrants.
The first warrant, transmitted to the Irish authorities on the 16th June, 2005, specifies the sentence as “three years of custodial sentence to be served in a non-high security establishment”.
The second warrant, delivered to the Irish authorities on the 26th March, 2006, specifies the sentence as “three years imprisonment to be served in a low-level security prison”.
But the third warrant, delivered to the Irish authorities on the 13th April, 2006, specifies the sentence as:
be in the form set out in the Annex to the Framework Decision and shall specify -
(f)(i) The penalties to which that person would, if convicted of the offence specified in the European Arrest Warrant, be liable,
(ii) Where that person has been convicted of the offence specified in the European Arrest Warrant but has not yet been sentenced, the penalties to which he or she is liable in respect of the offence, or
(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.”
The fourth warrant issued on the 14th October, 2009, describes the sentence as “three years of imprisonment to be served in a low-level security prison”. That is, the reference in the previous warrant to release on parole after eighteen months has simply vanished.
On the hearing of this appeal, it was suggested that the variation of the statement of the sentence to be served related to an alteration or qualification of the sentence imposed by a Hungarian Court of Second Instance reviewing the decision of the Trial Court.
However, when Mr. Tobin was arrested pursuant to the European Arrest Warrant on the 11th January, 2006, and was brought to the High Court, the State decided to oppose his release on bail, despite the fact that he was plainly a person of good character. In doing so, the State referred to the European Arrest Warrant and asserted that the custodial sentence facing Mr. Tobin in the event of his surrender was one of three years imprisonment. The State then asserted that, since he was facing custodial sentence of three years imprisonment, he was likely to seek to evade justice if admitted to bail and that accordingly bail should be refused. In supporting this objection in evidence on behalf of the Central Authority, Sergeant Anthony Lenihan of An Garda Síochána that he had no knowledge of a reduction in the term of imprisonment imposed on appeal.
In support of the application for Mr. Tobin’s surrender, a Dr. Klara Nemeth-Bokor, head of the Department of International Criminal Law in the Ministry of Justice in Hungary swore an affidavit on the 21st July, 2006. In this she stated that following transmission of the warrant to the Irish authorities on the 16th June, 2005 “requests for further information were received from the Central Authority between the 27th July, 2005, and the 11th May, 2006”.
She then went on to say, at para. 5:
“Three years in a low-level security prison (Tobin Francis Ciaran may be released on parole after having served one half of his imprisonment sentence).”
But this situation was not satisfactory to the Central Authority, or became unsatisfactory to him as the detail of Mr. Tobin’s case emerged, in his points of opposition. Accordingly, on the 21st May, 2010, a Mr. John Davis of the Department of Justice wrote to Dr. Nemeth-Bokor and said, insofar as is relevant:
“As a result of the said requests for further information, the issuing court considered the European Arrest Warrant, and amended the warrant to reflect the findings of the Pest County Court, the Court of Second Instance. The European Arrest Warrant as originally issued did not state that the sentence imposed on Mr. Tobin had been amended by the Pest County Court by adding the proviso that Mr. Tobin may be put on parole after serving half of his sentence. The amendment was translated and transmitted to the Minister by fax on the 29th March, 2006.”
Mr. Davis requested a reply to his letter by the 18th June, 2010, “at the very latest”.
On the 14th June, 2010, Dr. Nemeth-Bokor replied as follows:
“The respondent (i.e. Mr. Tobin) claims that the E.A.W. does not comply with s.11(1)(g)(iii) of the E.A.W. Act, 2003 in that it does not set out the penalties of which the sentence consists of (sic). This appears to be a reference to the fact that the E.A.W. does not record that the final eighteen months of the three year sentence were ‘suspended’ (using our terminology) by the Pest County Court of Second Instance.
The variation of sentence at Second Instance is not referred to on the face of the E.A.W. Please confirm whether the sentence was varied at Second Instance and whether this is the sentence for which the respondent’s surrender is sought?”
The learned trial judge, and the State lawyer, Mr. Davis, perhaps not surprisingly, considered that the sentence as it stood after the Second Instance hearing was one of three years with eighteen months suspended. But this not clearly not so, and that was common case on the hearing of this appeal.
From the foregoing it appears to me firstly that the four European Arrest Warrants are not internally consistent on the question of the sentence. Secondly, the affidavit of Dr. Nemeth-Bokor, quoted above, states that the Court in Hungary “amended the warrant to reflect the findings of the Pest County Court, the Court of Second Instance [which]… did not state that the sentence imposed on Mr. Tobin had been amended… by the adding the proviso that Mr. Tobin may be put on parole after serving half his sentence”.
But the same person’s letter on the 14th June, 2010, states clearly that “the sentence has not been varied at Second Instance…”.
The legal nature of a sentence which has been amended but has not been varied, entirely eludes me. It is a contradiction in terms.
In my view, the mandatory provisions of the Irish legislation have not been complied with. Even an important Hungarian Civil Servant holding a doctorate in law appears confused as to whether the sentence imposed by the Court of First Instance has been “amended”, as she stated in her Affidavit, or has “not been varied at Second Instance” as she stated in her letter to the Irish authorities of 14 June, 2010. It does not seem to me that these statements can both be true.
If, as asserted in the third warrant issued by the Hungarian authorities “Tobin Francis Ciaran may be released on parole after having served one half of his imprisonment sentence”, that important matter is then wholly omitted in the warrant on which his surrender is now sought.
Moreover by virtue of s.2A of the European Arrest Warrant Act (inserted by s.72(a)) of the Criminal Justice (Terrorist Offences) Act, 2005, “if any of the information to which s.1A refers is not specified in the European Arrest Warrant, it may be specified in a separate document”, or otherwise. The affidavit and letter of Dr. Nemeth-Bokor are apparently produced under this section.
This means that at any time up to the close of the appeal hearing it would have been possible for the applicant to clarify this confusion which had been fully ventilated by that time. But no such clarification was offered, “in a separate document”, or at all, other than the contradictory documents discussed above.
Accordingly, to summarise: the first two warrants referred to a sentence of three years without qualification. The third permitted release on parole after half that period. This alteration was said by the Hungarian State’s expert witness to because the original warrant “did not state that the sentence imposed on Mr. Tobin had been amended by the [Court of Second Instance]”.
But if this is so, that amendment was simply deleted from the fourth warrant, issued more than four years after the first one and three years after the warrant referring to early release. No clarification of this has ever been offered except the Hungarian lawyers cryptic statement that the sentence, though “amended” had not been “varied”. These statements are inconsistent, and utterly uninformative. I do not know “the penalties of which the sentence consists”. Neither does the Irish State, or Mr. Tobin himself or his family.
Even apart from the statute I would consider this a wholly unacceptable state of vagueness. In Ireland a prisoner is entitled to know his sentence with absolute precision and on being lodged in prison is entitled to be informed of his date of release. I consider this to be, not merely a statutory requirement, but an essential incident of a deprivation of liberty in accordance with law. A specific statement of “the penalties of which that sentence consists” is required by law to be part of the European Arrest Warrant. This requirement has not been complied with. I would therefore decline forcibly to deliver Mr. Tobin to Hungary on this ground alone.
There follows a detailed chronology of the events from the date of the accident, on the 9th April, 2000 until the appellant felt compelled to surrender his bail on the 9th November, 2011. This chronology, in a very similar form, was presented on the hearing of the appeal and I did not understand it to be in any way dissented from.
30 November 1997 Respondent moves to Hungary.
9 April 2000 Date of Accident.
10 April 2000 Respondent attends at Police Station and gives
28 August 2000 Respondent writes to Police seeking return of passport.
19 September 2000 Respondent departs for Ireland.
9 October 2000 Respondent returns to Hungary.
November 2000 Respondent due to return to Ireland.
7 June 2001 Respondent furnished with indictment.
14 June 2001 Respondent 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 2003 Act.
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 Respondent on foot of First Warrant.
29 March 2006 Second Warrant delivered to Minister.
13th 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.
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 2009 Act published.
10 November 2009 Respondent is arrested.
21 May 2010 Letter from Central Authority, Department of Justice
to Ministry of Justice Hungary “The Respondent 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
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
Respondent’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
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 Respondent.
9 March 2011 High Court certifies appeal raises points of law
9 November 2011 Respondent surrenders bail.
March 2012 Hearing of Second Appeal to Supreme Court.
Analysis of Chronology.
The extraordinary length of time this case has taken to fail to achieve finality is, in itself and as an aspect of the abuse of process which the appellant claims, one of the salient features of this case. It is important to see how the twelve years which has intervened between the accident and the present state of the case is made up.
From the accident to the trial in Hungary, a period of twenty-five months elapsed (April 2000 to May 2002). From the trial to the issue of the First European Arrest Warrant, a further period of thirty-seven months elapsed (May 2002 to June 2005). From the issue of the Arrest Warrant to the first hearing in the High Court of the application to have Mr. Tobin forcibly deported to Hungary, a period of about eighteen months elapsed (June 2005 to December 2006). The State’s application was dismissed in an ex tempore judgment subsequently reduced to writing. From the hearing in the High Court to the first appeal heard in this Court, a further seven months elapsed (December 2006 to July 2007). The appeal, too, was dismissed at the hearing and reasons were delivered in February 2008. From the dismissal of the State’s appeal to this Court to the coming into force of the new statute upon which the present application is based, a period of twenty-five months elapsed (July 2007 to August 2009). From the enactment of the new law to the second arrest of the applicant, a period of about three months elapsed (August 2009 to November 2009). From the second arrest of the appellant to the hearing of the second application for his surrender in the High Court, a period of about eight months elapsed (November 2009 to June 2010).
From the second High Court hearing of the State’s application to the judgment of the High Court, a period of about seven months elapsed (July 2010 to February 2011).
From the High Court’s certification that the appeal raised a point or points of law of exceptional public importance to the hearing of the appeal in this Court a further period of twelve months elapsed (March 2011 to March 2012).
The total period of time elapsed, as chronicled above, is 145 months, or just over twelve years. To put this in more human terms, during this time the appellant went from being a man of thirty-six to a man of forty-eight and during the whole of that time he had to deal with the trial or one stage or other of the attempts forcibly to deport him to Hungary in being or pending against him. The period represents the bulk of the duration of his marriage, which took place in 1993. It represented all but nine months of the life of his son, and the whole of the life of his daughter. It represents a quarter of the appellant’s entire life and approaching one half of his adult life. His children have spent the entire of their sentient lives under a severe threat that their father, who is greatly involved in their lives, education and recreational activities, would be led away and forcibly deported to what is to them a strange country.
It is difficult to believe that this is not a gravely disturbing experience, that it has not blighted their childhoods, and that it will not sour their recollections of childhood in the future. I hope it may have no worse consequence. But it is totally inconsistent with that sense of security which is an essential for the healthy development of children and which all parents endeavour to provide for their offspring. The authorities in this case have felt obliged to destroy the security of these childrens’ childhood. Perhaps they have good reason for doing so, as they claim.
Responsibility for delay.
None of the enormous lapse of time chronicled above can be laid at the door of the appellant. He was the defendant or respondent at all stages of all of the litigation, whose pace and repetition was dictated at all times by his opponents.
By far the single longest period of delay - forty-four months or just short of four years in aggregate - was caused by the misconceived attempt forcibly to deliver Mr. Tobin on the specious ground that he had fled from Hungary. There was never any evidential support for that proposition. If the State did not know that, such ignorance must be due to negligence of a dramatic sort. If they did know it then they maintained proceedings which they knew to be based on a falsity. While it is possible that some extraordinary degree of inattention, total failure to analyse the facts of the case, or deficient information from the requesting State may have prevented their knowing positively that Mr. Tobin did not flee from Hungary, no such excuse could be available after Mr. Tobins “Points of Opposition” and certainly, after the hearing in the High Court when the evidence established that he did not flee so clearly that the learned High Court Judge (Peart J.) dismissed the application ex tempore. Likewise, the Supreme Court announced its decision to dismiss the appeal at the conclusion of the hearing, reserving the delivery of a reasoned judgment.
On the hearing of this appeal, as stated elsewhere, the State fully acknowledged that Mr. Tobin had been entitled to win Tobin 1. This concession was naturally taken up by Mr. Brian Murray S.C. who said that it meant that “the State had put Tobin through the entire process of the law, including an appeal to this Court, in full knowledge of what the law was”. He further said that they had appealed even after the evidence heard in the High Court must have made it perfectly clear that there was no scope for the contention that Mr. Tobin had “fled” Hungary. Having lost the case, he charged, they “changed the rules and came after him again”.
Mr. Murray pointed specifically to para. 83 of the State’s written submissions on appeal, where the concession referred to above was made, and said with some emphasis and indeed some asperity that the State had not seen fit to say exactly when they had come to the conclusion that the contention they advanced in the High and Supreme Courts was unstatable. Despite the plain challenge to say when that was, the State remained at all times completely silent on the topic.
The attempt to blame the Oireachtas.
What seems to me most remarkable about this aspect of the case is that, in oral argument on the hearing of this appeal, the State (oddly and unprecedentedly) attempted to blame the legislature for the difficulty. The “fled” requirement, they said, “should never have been there in the first place”. It is not necessary or appropriate for this Court to come to any conclusion as to whether that requirement should, or should not, have been in the statute enacted in 2003 but it is plain that the State, like the Court, and like Mr. Tobin, must live with the Act as actually enacted by the Oireachtas. The plain fact is that the Central Authority initiated the proceedings in Tobin 1 fully aware of what the statute said and then, or not long afterwards, became affirmatively aware that there was no evidence whatever to ground the proposition that Mr. Tobin had “fled” from Hungary. The Authorities now accept that this is so but, despite a challenge in the plainest terms, declined to state when they came to that view. No doubt there is good reason for that reticence.
I say that the respondent attempted to blame the legislature for the difficulty which arose because, in the respondent’s submissions, the inclusion of the reference to “fled” in s.10 of the 2003 Act is said to have been included “in error”. The submissions then go on to say:
“The fact that the Pest County Court as Court of Second Instance established in its judgment that following the service of half of the sentence, Tobin may be conditionally released, means only that the earliest date of the possible release may come into light following the service of eighteen months” (sic).
“Taking into account the above it has to be stated that the sentence has not been varied at Second Instance, only the earliest date of the possible release has been established and at the same time the judgment [at First Instance] passed by the Budakornveki Court on 7 May, 2002, has been approved”. (Emphasis in original)
It is very important to state that the contents of s.10 of the Act of 2003 were not something which took the authorities by surprise during the hearing of their first application. On the contrary, that provision had been expressly relied upon by Mr. Tobin in his points of objection which he filed in Tobin 1. If the respondent was then of the opinion that an error had been made he could have withdrawn the proceedings and sought, if thought necessary, to amend the law. But he did not do that. The Central Authority persisted with hopeless proceedings and caused great expense to the public and distress to Mr. Tobin.
I am unhappy with the Central Authority’s attribution of this difficulty to an “error” by the legislature. This is discussed in more detail below.
Mr. Tobin, then, in 2005 and following years was confronted with proceedings for his surrender to Hungary which were at all times unstatable, and are now admitted to have been unstatable having regard to s.10 of the 2003 Act. Mr. Tobin contested those proceedings presumably because he, too, was advised that they were fatally flawed. But he did not contest them solely by relying on the absence of evidence to meet the “fled” requirement: he contested the case on other grounds as well including most of the grounds which he deployed in answer to the second proceedings. But neither the High Court nor this Court on appeal conclusively addressed those other issues because, in keeping with long standing practice, both courts decided the case on the first dispositive point, the “fled” issue.
Legal consequences of the foregoing.
It must be said that this case was argued on both sides with great legal erudition, skill, eloquence and intensity. As generally happens in a well argued case, there were important areas of agreement as well as areas of profound difference.
Thus, Mr. Brian Murray S.C., leading counsel for Mr. Tobin, did not contend that the mere fact of the proceedings and the judgments in Tobin 1 constituted a bar to the institution of further proceedings under the European Arrest Warrant Act in respect of the same Hungarian sentence. He did not, in other words, attempt to set up a res judicata. Equally, Mr. Maurice Collins S.C., leading counsel for the Central Authority, did not deny that the result which he sought would be “terribly harsh” on Mr. Tobin and his family. But he said it was required by law and specifically by the State’s international obligations expressed in Irish law by the European Arrest Warrants Act, 2003 as amended. He in effect challenged the Court - and in the circumstances of the case neither the word nor the action were inappropriate - if it was not going to deliver Mr. Tobin forcibly to Hungary on foot of the European Arrest Warrant, to provide a principled basis for declining to do so. He submitted that it was not possible to do that.
In other words, both sides acknowledged that the case was a particularly difficult one. There is no simple solution - no deus ex machina - which would allow a court easily to resolve the matter one way or another, and no precedent directly in point.
The certified questions.
In this case, after Mr. Tobin was unsuccessful in the High Court, that Court, by order of the 10th March, 2011, 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.
The certified questions were:
(a) Whether it is an abuse of process and/or contrary to articles 6, 34 and/or 37 of the Constitution or 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:
“It should not have been there in the first place and had the Framework Decision been correctly given effect to in the Act of 2003… the respondent would have been a person in respect of whom an order for surrender had been made.”
(b) Whether the provisions of the European Arrest Warrant Act, 2003 as amended, applied to convictions as imposed in States prior to their accession to the European Union.
(c) Whether s.5 of the 2003 Act as amended requires the Central Authority 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 discloses a defence under Irish law.
(d) Whether it is in 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, not having fled the jurisdiction, it is not possible to serve a sentence of imprisonment in Ireland without returning to Hungary.”
Abuse of Process.
It is fair to say that the bulk of the arguments addressed to the Court by counsel on the hearing of this appeal related to the appellant’s strong contention that the present proceedings against him are an abuse of process. The centrality of this contention was amply indicated in the appellant’s written submissions where, at para. 78, it is stated:
(ii) The first such proceedings failed following a determination by the High Court and the 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 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.
The submission continued:
“It is submitted that, in the circumstances where the Minister choose 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 him to then initiate a second set of proceedings.”
Contentions of the Parties.
Mr. Tobin says that he was, to his lasting and life changing regret, involved in a traffic accident in Hungary in April, 2000 which caused the death of two children. But he maintains, and has always maintained, that this happened without any criminal act or omission or intent on his part. There was no question of drink or drugs, there was no question of very high speed, even on the prosecution version of events. There was some tentative evidence of vehicle malfunction. Mr. Tobin could not follow this up himself and his requests to the police to do so were not apparently complied with.
Mr. Tobin says he acted perfectly lawfully and in accordance with Hungarian law at all times. He says that he absented himself from the trial in Hungary in the belief that his evidence and that of his passengers provided by way of evidential statement to the Hungarian police, would be before the Court. But it was not, and the finding of the Court, set out above, demonstrates that his explanation was ignored as inadmissible.
Having perfectly legally returned openly to Ireland, he was three years later arrested, lodged in prison and had his release on bail opposed by the State (though he was in the result granted bail over the State objections).
He says that the first set of proceedings, Tobin 1, which took almost four years from start to finish were based on a proposition for which there was never any evidence - that he had “fled” from Hungary. He relies strongly on the fact that the authorities now themselves concede that they were never entitled to succeed in those proceedings. He points to the fact that they have declined to say when they became aware that they were never entitled to succeed in those proceedings, and have persisted in that significant reticence up to today.
He points to his extreme relief, and that of his family, at the successful outcome of Tobin 1. He complains that the State, quite undeterred, took two years to bring about a change in the law and then simply started all over again to seek his surrender to Hungary. He points to the extreme insecurity, anxiety and terror this has caused to him and his family. In more legal terms, he complains that this step is a mockery of his right to equality, specifically “equality of arms” since, if he had lost Tobin 1 he could not have procured a change in the law and demanded a replay. He also complains that what the State have done radically offends the notion of legal finality. He points to the extraordinary length of time that the various proceedings have taken and says that it offends his rights under the Irish Constitution and under the European Convention on Human Right. He refers to the considerable body of Irish case law on delay and to the terms of Article 6(1) of the European Convention as follows:
“It would be neither fair nor just for the Minister, having erroneously brought and maintained proceedings on foot of s.10, to be entitled to renew his application without adverse consequences or complaint of Mr. Tobin having undergone the anxiety and expense of those proceedings… being deprived of the benefit of the judicial determination he obtained from both the High Court and Supreme Court.”
“In the determination of his civil rights and obligations all of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.
(Emphasis supplied) Mr. Tobin emphasises that, in order to protect his family and his employment (and without in any way acknowledging the justice of his conviction or sentence in Hungary), he actually offered to serve the sentence imposed on him in an Irish jail. But it transpired that, precisely because he had not “fled” Hungary this was not possible. When the State launched their second attempt, and were successful in the High Court, Mr. Tobin took the radical step of surrendering his bail and going into custody, in the hope or expectation that this period of incarceration would be taken into account in reduction of the time he would have to serve away from his family and in the (to him) strange and apparently hostile Hungarian environment if he is unsuccessful. He has been in jail since November last.
The State, on the other hand, stoutly maintain the proposition, firstly, that Mr. Tobin cannot be heard to complain about irregularity or unfairness in the Hungarian proceedings. They say that, because Hungary is a party to the European Arrest Warrant system it is to be presumed that their proceedings were fair and regular. Secondly, they say that Tobin 1 has absolutely no effect on the State’s ability to take further proceedings aimed at securing Mr. Tobin’s surrender to Hungary. They claim to be entitled to proceed as if Tobin 1 had never happened. They strongly maintain, relying on certain authorities mentioned below, that an extradition or rendition application is a procedural matter only and gives rise to no vested rights in a person who is successful in resisting such an application against him. Alternatively, they say, if such a victory does give rise to a vested right, that right is only a right not to be forcibly rendered to another country while the law which enabled one to win remains unchanged. The State does not deny the distress, grief, fear and insecurity caused to Mr. Tobin and his family but says it is legally irrelevant. Such emotions arise in every case that leads to imprisonment, they say.
The authorities very strongly and intensely argued against the application of the abuse of process doctrine to cases under the European Arrest Warrant system. Specifically, they said that “a wide ranging abuse of process jurisdiction” was difficult to reconcile with the provisions of the Framework Decision and the European Arrest Warrant Act. Mr. Maurice Collins strongly argued that no principle had been enunciated which could reconcile the exercise of an abuse of process jurisdiction with the appellant’s acknowledgement that there was no res judicata.
It is difficult to convey in a written judgment the deep and insistent intensity with which this point was argued.
Continuing, Mr. Collins said that the abuse of process argument was no more than a generalised (and legally unprincipled) assertion of ordinary unfairness. He approached making a “floodgates” argument, saying that to apply a doctrine of non-specific unfairness would risk introducing an element of uncertainty which is inconsistent with the requirement that the law should be of general application intelligible and predictable.
This latter point could be urged against the application of the abuse of process jurisdiction in any area of the law. First, as we shall see, it is well established not least in the area of commercial law. Nor, with respect, is there any question of the institution of “a wide ranging abuse of process jurisdiction”. Though recent cases clearly establish the existence of the jurisdiction and its actual use across wide variety of legal contexts, the number of applications is not large and the grounds on which the abuse of process jurisdiction can be invoked are the reverse of common or wide ranging. The authorities are considered below, and that of Bolger v. O’Toole appears clearly to have acknowledged the existence of the jurisdiction in an extradition context. The case of Johnson v.
Gore Wood, discussed below, shows clearly that “… there will rarely be a finding of abuse unless the later proceedings involve what the Courts regard as unjust harassment of a party”.
It is, I hope, not unreasonable to expect that cases where unjust harassment by a public authority can plausibly be argued will be few and far between. A jurisdiction whose exercise involves the demonstration of this rarity cannot be described as “wide ranging”. I did not understand Mr. Collins to contend for the proposition that in no circumstances whatever could the abuse of process jurisdiction be exercised in the context of a European Arrest Warrant but, if that were contended I would reject it on the grounds that this is an essential jurisdiction for the Courts to maintain at their disposal to deal with rare, but not inconceivable or unheard of, cases. It would in any event be difficult for the State to contend that no abuse of process jurisdiction whatever existed in this area because one of the cases upon which they place prime reliance specifically acknowledges the existence of this jurisdiction in Extradition cases.
The State, as we have seen, does not deny that the present proceedings, especially if they have the result intended by the Central Authority, are “terribly harsh” on Mr. Tobin and his family. But this, they say, does not entitle him to relief. He was successful in Tobin 1, according to the State, only because the legislature had quite wrongly inserted into the European Arrest Warrant Act, 2003 a provision which should never have been there (according to the State). Now that this has been removed the Central Authority is entitled again to seek Mr. Tobin’s surrender from the State, notwithstanding all that has gone on over the past one hundred and forty five months, or twelve years. There is no statute of limitations applying to applications of this sort, the State assets.
Before discussing the legal authorities on these issues it may be as well to reiterate that three years and eight months of the time elapsed was devoted to the initiation and hearing of the Tobin 1 proceedings, to include appeal. Thirty-seven months, or three years and one month, elapsed between the trial in Hungary and the issue of the first European Arrest Warrant. Twenty-five months or two years and one month elapsed between this Court’s decision in Tobin 1 and the publication of the new law under which Mr. Tobin is now pursued.
(i) Is abuse of Process available?
The principal authority relied upon by the State for the proposition that the dismissal of proceedings in the nature of extradition proceedings is no bar to the bringing of another such application is Bolger v. O’Toole (Supreme Court, unreported, 2nd December, 2002).
In that case, the applicant, Mr. Bolger had been successful in the District Court in defeating an application for his extradition to England. This was because, in the words of the ex tempore judgment of Denham J. (as she then was) “technical issues were raised successfully in relation to the original set of warrants”. A new set of warrants subsequently issued and Denham J. held:
Amplifying this, the learned judge said:
“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”.
“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 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 a 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 the 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.”
It thus appears that the case of Bolger v. O’Toole held only that the dismissal on “technical” grounds of an application for extradition under the 1965 Act, did not create a res judicata. Apart from this, the case is manifestly distinguishable from the present one because there was in Bolger no question of a new statutory provision, but simply of new warrants with technical defects corrected. As mentioned above, Mr. Tobin in this case does not rely on res judicata, but, primarily, on abuse of process. The passage emphasised in the longer citation above from the judgment of Denham J. specifically preserves the right to seek to defeat surrender on the ground of abuse of process, or delay.
In view of the lengths of time mentioned in the chronology of this case, set out above, it is rather ironic to consider the last paragraph of the judgment of Denham J. in Bolger. It is as follows:
It would be observed that the total period described by Denham J. was of two years and one month. The time elapsed in this case extends for over twelve years, about six times as long.
Although United Kingdom authorities are not of course binding on this Court, it appears to me that the legal position which emerged have after the Bolger case is not dissimilar to that obtaining in the neighbouring jurisdiction. The issue was considered in the Court of Appeal for England and Wales in Office of the Prosecutor General of Turin v. Franco Barone  EWHC 3004. There, addressing much the same issue, Lord Justice Moses said, at para. 29:
“I would like to voice concern at the delay which has occurred between the granting of leave by the High Court on the 8th November, 1998, the judgment of the High Court on the 8th June, 2000 and the appeal from that order which has been made to this Court today”.
In that case, Lord Justice Moses discounted a complaint of delay on the grounds that the bulk of it had been brought about by the requested person, by his action in escaping from prison. The State, he said, had done nothing to foster the view that he was safe from extradition. The contrast with this case, where a much longer delay took place wholly without any fault on the part of the applicant, and where a request for his surrender was rejected by the Supreme Court, is an obvious one.
(ii) Was there an abuse of process?
Abuse of process is a many headed concept whose manifestations range from the deliberate maintenance of legal proceedings without of probable cause as in Dorene v. Suedes  ILRM 126 to a ham fisted or unthought out conduct of litigation, particularly by making two or more actions where one would do, which tends to oppress the other party and to cause him expense and/or distress.
In recent years, the case of Henderson v. Henderson (1843) 3 Hare 100, has enjoyed a remarkable revival, and has probably been more cited in the past two decades than in the years immediately following its delivery. Thus, in AA v. the Medical Council  4 IR 302, an action by a doctor against the Medical Council seeking to prevent an inquiry into his conduct was dismissed on the ground that the doctor was now seeking to bring forward a point which he could have raised in previous litigation which he had undertaken against the Medical Council in relation to the same inquiry.
In that case the Court extensively discussed Henderson v. Henderson abuse of process and the principles which underlie it. There is an extensive citation from the English case of Johnson v. Gore Wood and Company  2 AC 1. The judgment is that of the late Lord Bingham, successively Lord Chief Justice and Senior Law Lord in the neighbouring jurisdiction. He said:
“I quite accept that the mere fact that a previous request for extradition… had failed is not of itself a basis for refusing a fresh request for surrender, as it might be more accurately 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 repeated under the new regime. But it does not follow that the previous consideration of the Court of the requested State is irrelevant.”
Lord Bingham also said:
“Henderson v. Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter.”
In another English case from the same era, Woodhouse v. Consignia PLC  1 WLR 2258, Lord Justice Brooke discussed the concept of abuse of process in the following terms:
“I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceedings involve what the Court regards as unjust harassment of a party”.
Similarly, in Gairy v. Attorney General of Granada  1 AC 167, speaking of the principle in Henderson and its offshoots Lord Bingham said, at p. 181 “these are rules of justice intended to protect a party… against oppressive and vexatious litigation”.
In my judgment in AA I refer to the assistance I had derived from an illuminating article by Mr. Justice Handley of the Court of Appeal in New South Wales, A closer look at Henderson v. Henderson (2002) 118 LQR 397. I also made the general observation that:
“… at least as important is the general need, in the interests of justice, to protect the respondents to successive applications in such circumstances from oppression. The rationale for the rule in Henderson v. Henderson … is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits where one would do”.
I reiterate that. In this case it cuts both ways, so to speak. It is well established that the dismissal on “technical grounds” of an application for extradition does not constitute a res judicata, so as to prevent a second application in respect of the same offence. But equally, it cannot be said that that is the whole story: as Bolger itself indicates, the question of whether or not there has been an abuse of process in an individual case remains open as does the possibility of claiming relief on the ground of delay. In a suitable case delay or sheer lapse of time may be part of what goes to make up an abuse of process.
Subsequent to the decision in AA v. The Medical Council, Henderson and Henderson principles, as subsequently interpreted, were applied in the context of an ex parte application. There are various dicta of great significance for the present case in the judgments in In Re Vantive Holdings  2 IR 118.
The context of Vantive was an application to appoint an Examiner to a company pursuant to the Companies Act, 1990. This application was made in the High Court, refused there, and appealed to the Supreme Court where the appeal was dismissed. Very shortly afterwards the petitioner sought to present a second petition to the High Court which provided a good deal of information which was not presented on the first occasion. The High Court allowed the presentation of the second petition but an affected bank appealed this to the Supreme Court. The Supreme Court noted that the Act did not prohibit the presentation of a second petition for the appointment of an Examiner. The judgments referred to the rule in Henderson v. Henderson as applying to proceedings between parties and pointed to the distinction which arose in the case of an ex parte application: the protection of a party from being harassed by successive legal proceedings does not arise in that context. However, Murray C.J. continued, at para. 24:
“Rules or principles so described cannot, in their nature, be applied in an automatic or unconsidered fashion”.
“Nonetheless there still remains the inherent jurisdiction of the Court to protect the integrity of the due process of the administration of justice and the finality, in principle, of a judicial decision.
Underlying the rule in Henderson v. Henderson is the policy of the need to protect the due and proper administration of justice from an abuse of process and to uphold the principle of finality in legal proceedings”.
Murray C.J. went on to cite the passage I have cited above from Johnson v. Gore Wood. He also cited from In Re Greendale Developments Limited  2 IR 514 the dictum of Hamilton C.J.:
Murray C.J. concluded that in the circumstances the bringing of the second petition “… constitutes an abuse of the process in relation to the appointment of examiners under the Act of 1990 and prima facie is a bar to the second petition proceeding”. (para. 30)
In her concurring judgment, Denham J. (as she then was) said at para. 89:
“… the finality of proceedings both at the level of trial and possibly more particularly at the level of ultimate appeal is of fundamental importance to the certainty of the administration of law, and should not lightly be breached”.
Expanding this, she continued:
“There are exceptional circumstances, in the interests of justice, where a matter may be revisited. But the fundamental principle is that it is in the public interest and for the common good that there should be finality in litigation. An aspect of this principle is the party should not be exposed to multiple litigation and should have closure on an issue. Also there is the public interest that the limited resources of the Courts should be used justly and with economy.” (Emphasis supplied)
The significance of Vantive is that it is an example of the application of the principles underlying the decision in Henderson, and the cases which followed it, and which were grounded on the need to protect defendants from multiple litigation, to a situation where the litigation in question was being conducted ex parte, so that there was no defendant or respondent to be protected. It was done in the interest of the integrity of the Court process, and in the interest of the need for finality in litigation, so that the litigants could have “closure” as Denham J. put it.
Since this principle applies in the interests of limited companies, their creditors, of statutory corporations and other non-human legal persons, I would consider that it applies a fortiori to a natural (as opposed to an artificial) person with all the feelings, vulnerabilities, and rights which attach to his status as a human person.
Finally, and in the specific context of proceedings under the European Arrest Warrant, I wish to refer to the recent English authority, Hamburg Public Prosecutors Office v. Altun  EWHC 397. This was a case where rendition was refused on the grounds of double jeopardy. This had been raised by the defendant and it was for him to establish it. The prosecutor said that he was unable to rebut the defendant’s contentions at the time, and therefore did not oppose discharge, but reserved the right to issue a further European Arrest Warrant when it was in a better position to proceed. The United Kingdom Courts again refused to deliver the person on the ground of double jeopardy.
On appeal, Ouseley J. said:
“The interests of justice require that there be finality of litigation. If a petitioner were entitled to make a second or further petition on the general ‘overriding consideration’ of legislative policy, as referred to previously, it would commence an era where multiple petitions would become the norm. A petitioner could the regard a primary petition as a stalking ground for advice on proofs from the Court. Clearly this was not envisaged by the legislation, nor is it consistent with fundamental principles of law”. (para. 92)
The circumstances of that case are very different to the present one. But a number of the considerations mentioned by the learned judge are directly relevant. In particular I would refer to the statement that:
“If [the double jeopardy point were] good as a point it was a complete bar to extradition and no fresh warrant could alter that. Only further evidence from the prosecutor could alter the decision. The issue was ruled on: the prosecutor did not take the step of withdrawing the warrant or trying to obtain a further adjournment to await what he hoped would be better evidence in due course. The prosecutor should have brought forward all the evidence which he relied on to defeat the defendant’s case; the case was bound to succeed on the then available material. It was for the prosecutor to make sure that he had what he needed when he instituted and continued to finality those proceedings on the European Arrest Warrant. It was after all his choice to bring the proceedings when he did. It was not open to him thereafter to issue a fresh warrant relying on new evidence to counter the defendant’s case on double jeopardy, even if that evidence was not to hand when the first warrant was discharged”.
In the present case, too, it was the applicant’s decision to institute the proceedings when they were in fact instituted, and instituted in full knowledge of the state of Irish Statute Law at that time.
I wish to emphasise certain phrases from the cases just cited, firstly the reference in Johnson v. Gore Wood, to “the underlying public interest that there should be finality in litigation and that a party should not be twice vexed in the same matter”. Secondly, the fact that it is unnecessary “before abuse may be found, to identify any additional element such as collateral attack on a previous decision, or some dishonesty…”. Thirdly, to the need “to protect the respondents to successive applications… from oppression” and fourthly, the emphasis on the desirability “… that litigation should not drag on forever and that a defendant should not be oppressed by successive suits where one would do”, and the important legal value of “finality”, so as to provide “closure” for the parties.
It appears, therefore, to be well established that abuse of process of the sort alleged here is separate and distinct from res judicata, which is not relied upon in the circumstances of this case. It is, instead, a separate but conceptually related weapon in the armoury of the Courts to protect a litigant from oppression or harassment, to use two of the words employed in the cases. It is necessary that the Court should have such powers, over and above the strict rules of res judicata, because the right to be free of harassment and vexatious litigation, and to fair procedures and equality of arms in litigation, are rights of a Constitutional nature and arise fundamentally from respect for the dignity of the human person. It is salutary to recall the important if general words spoken in this Court by
Ó Dálaigh C.J. in The State (Quinn) v. Ryan  IR 70, at 122:
“It was for the prosecutor to make sure he had what he needed when he instituted and continued to finality [the first proceedings]. It was after all his choice to bring the proceedings when he did”.
A specific application of those principles arose in The State (O’Callaghan v. h-Úadhaigh  IR 42. There, Finlay P. (as he then was) was dealing with a case of a defendant who, as a result of an application for a direction at the end of his criminal trial in the Central Criminal Court, was about to succeed in relation to all but one of the numerous charges against him. This was clear from the learned trial judge’s expression of his view of the law. In that situation, the State entered a nolle prosequi bringing the trial to an end, and subsequently sought to prosecute O’Callaghan again on the same charges, hoping for a new trial before a different judge where it might be possible to avoid the consequences of the learned trial judge’s view of the law. It would have been possible to deal with that case on a purely technical basis related to the requirements for the entry of a nolle prosequi but Finlay P. addressed the issue in principle, as follows:
“It was not the intention of the Constitution in safeguarding the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary that follows no-one can within impunity set those rights at nought or circumvent them, and that the Courts powers in this regard are as ample as the defence of the Constitution requires”.
I regard this as an illuminating passage and would very respectfully adopt what was said by the learned judge. I would particularly emphasise his invocation of the concepts of “an extraordinary imbalance between the rights and the powers of the prosecution and those of the accused respectively”; to the necessity to avoid such an imbalance in order to ensure fairness and fair procedure. I would also adopt the emphasis on the need for parties to litigation to be in a position of equality one with the other. This is the concept referred to in the jurisprudence of the European Court on Human Rights as “egalité des armes”. It is important to bear in mind that here, too, Mr. Tobin would have no right to demand a rehearing, still less a change in the law, if he had been displeased with the result of Tobin 1.
In the cases cited above, the beneficiaries of a rule against vexatious litigation were all limited companies, Banks or statutory bodies, such as the Medical Council. In those civil cases, accordingly, the beneficiaries were all legal persons who might suffer inconvenience or expense and also, perhaps, uncertainty in their ability to carry out their functions, but could not of their nature suffer deep emotional distress, anxiety or terror, fear for family or a near relation, fear of loss of employment and other emotions which are peculiar to human persons. Emotions of this latter sort are, of course, cognisable by the law but have in fact been recognised largely in criminal cases. The policy basis for a rule against double jeopardy in such cases is in my view best expressed in an American case from 1957, Green v. United States (1957) 355 US 184.
Having described the rule, Mr. Justice Black continued, at pp 187-188:
“If the contention of the [State] is correct, the [defendant] having undergone that form of trial (and remand awaiting trial) and having succeeded in confining the issues to be tried, would be deprived of all that advantage by the simple operation of the statutory power on the part of the Director of Public Prosecutions. In that way, the [defendant] would have the entire of his remand awaiting trial set at nought and he would have to start afresh to face a criminal prosecution in which the prosecution, by adopting a different procedure, could avoid the consequences of the learned trial judge’s view of the law. No such right exists in the accused: if the trial judge makes decisions adverse to the interests of the accused, the latter cannot obtain relief from them otherwise than by an appeal…
It seems to me that so to interpret the provisions of s.12 of the Act of 1924 as to create such an extraordinary imbalance between the rights and powers of the prosecution and those of the accused respectively, and to give the Director such a relative independence from the decision of the Court in any trial, would be to concur in a proposition of law that would singly have failed to import fairness and fair procedures”.
The Green case concerned criminal trials and the other cases cited above related to civil actions or applications. This present proceeding is, strictly speaking, neither a civil action nor a criminal trial. In its incidents however, it is much more closely akin to a criminal than to a civil proceeding. A person whose surrender is sought is arrested and lodged in prison and if he obtains his liberty on an interlocutory basis, it will be on bail. If unsuccessful, he will be committed to prison to await his involuntary departure to the requesting State and, if so rendered, he will be imprisoned. In the course of the argument on the present appeal Mr. Murray S.C. stressed that this case - Tobin 2 - was unique even amongst European Arrest Warrant cases, but it too is of course more closely akin to a criminal than to a civil proceeding.
Accordingly, and on the basis of Green, I would add to the list of topics and values to be considered in assessing whether a particular proceeding is an abuse of process the following: the massive disparity of resources and power between the State and an individual and the vulnerability of the individual and his family to embarrassment and expense; their vulnerability to “ordeal”; and the need to avoid “compelling him [and them] to live in a state of continuing anxiety and insecurity”, and instead to provide “closure” in the phrase of Denham J.
Application to the present case.
In my view, all of the considerations mentioned above are relevant to the present case. I refer particularly to the proposition that there should be finality in litigation and that a party should not be vexed twice in the same matter; that it is an abuse to subject a party to unjust harassment; that the appellant must therefore be protected from oppression; that it is important in the public interest, as well as that of the parties, that litigation should not drag on for ever; and that a defendant should not be oppressed by successive suits where one would do. Similarly, I agree that these rules are rules of justice. They arise with particular force where there is a gross disparity in resources and powers between litigants; this is seen in this case with particular force because the State waged unending litigation from a bottomless purse whereas the appellant had to fund himself. Similarly, and for the reasons set out above, I believe that the term “ordeal” is entirely apt to describe what the appellant and his family have been put through in the years since 2000, and since 2004 in particular, and that the least part of this ordeal is the embarrassment and expense to which the appellant has been put. It is, in my view, quite understandable that, after winning Tobin 1, the appellant though living in a supportive community in South County Meath, decided to move to Dublin in an attempt to provide a fresh start for his family in a new environment and to re-assure his very elderly mother who lived nearby. It requires little imagination to think of the reaction of these people to his re-arrest in 2009. It requires no imagination at all to imagine the insecurity which this caused to children of ten and nine years respectively at the time, and the unhappiness caused to the adult members of the family on that account. They were indeed, in my judgement, “compelled to live in a continuing state of anxiety and insecurity”, as it was phrased in Green v. United States above.
It is of course true to say that the operations of the law often cause distress and anxiety, not least to people who are not themselves the subject of proceedings but whose sense of family, of security, and even of basic material support, may be destroyed by the operation especially of the criminal law. In many instances, that simply cannot be helped, as Mr. Collins correctly said.
But it could have been helped in this case. There was absolutely no compulsion on the Central Authority to initiate proceedings in 2005. Any consideration of those proceedings by a competent lawyer would have led to the conclusion, which is now accepted, that they were doomed to fail. The attitude of the authorities was grounded, at best, on a failure properly to consider the case. This has caused enormous and uncompensatable “ordeal” to Mr. Tobin and his family, and is completely inconsistent with the proposition that there should be a finality in litigation. The notion that the State should be able to bring about a change in the law and simply start again as though nothing had happened is one that I regard with abhorrence. It is a negation of the notion of legal finality, and of a right to “closure”.
Judges are quite used to a situation in which, by reason of the provisions of a statute, or of binding authority, one has to decide a case contrary to one’s own intuitions of justice. Mr. Justice Scalia of the United States Supreme Court has remarked that a judge who takes his oath seriously will find himself deciding against his own preferences in a significant proportion of cases. An example of this was the case of
D.P.P. v. Esther Cullen (Court of Criminal Appeal, unreported, 15th October, 2007) where it was necessary to uphold a sentence (the “mandatory minimum sentence”) of ten years imprisonment pursuant to s.15A of the mis-use of Drugs Act on a middle aged grandmother without previous convictions, even though the sentence seemed harsh, and “much in excess of what the Court would expect to see if the ordinary principles of sentencing were applied…”. In such circumstances one can only reflect that no doubt the legislature had some competing and superior intuitions of justice in providing as it did.
But this case is in different category. Firstly, it is an entirely unique case without precedent in this country. Secondly, it manifestly occupied a period of time which is on any view excessive. Thirdly, when the reasons for this immensely prolonged course are examined they turn out to be wholly the responsibility of the applicant for Mr. Tobin’s surrender to Hungary. The circumstances in which very lengthy proceedings were launched and continued, which are now agreed to have been unstateable having regard to the term of the Act, have not in my view been fully explained. I am sure that the authorities are not motivated by any form of personal spite or ill will against Mr. Tobin. But I cannot acquit them of a desire to be seen to be almost slavish in conforming with the obligations of a subscriber to the Framework Document, and a member of the European Union, as they conceive them to be. It is this attitude, it appears to me, that has rendered them willing to extradite or deliver Irish people, or people who happen to be in Ireland, to other countries who would not deliver their own citizens if the positions were reversed. It has also rendered them gravely insensitive to the human rights of a person in the position of Mr. Tobin and his family. I consider that these latter have been unfairly and largely unnecessarily subjected to oppression and “ordeal”, that the principal reason for this - the institution and maintenance of the Tobin 1 proceedings - has never been satisfactorily explained. These present proceedings are, in my view, an abuse of process and I would decline to order the surrender of Mr. Tobin to Hungary on that account.
The application of the 2009 Act.
It was agreed that this issue turned on the interpretation of s.27 of the Interpretation Act, 2005. Insofar as relevant to this provision it states:
“(1) Where an enactment is repealed the repeal does not
“The underlying idea, one that is deeply engrained in at least the Anglo-American system of jurisprudence is that the State, with all its resources and power, should not be allowed to make repeated efforts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that, even though innocent, he may be found guilty”.
(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.
But s.4 of the same Act provides:
“(1) A provision of this Act applies to an enactment except insofar as the contrary intention appears in this Act, in the enactment itself or, where relevant, in the Act under which the enactment is made”.
In the present case, I agree that it can properly be said that the outcome of the Tobin 1 proceedings was to confer or create a right, being a right not to be extradited or surrendered to Hungary so long as Irish law retained the “fled” provision. That was a right, as opposed to a privilege or immunity. It is quite different from a right never to be forcibly rendered to Hungary, despite changes in the law: the contrary was not contended. I have read the ample discussion on this point contained in the judgment of O’Donnell J. and I agree with it.
Once the effect of Tobin 1 is established as having been to create a right, however limited or transitory, the provisions of the Interpretation Act, 2005 are of decisive importance. There is no doubt that the effect of the 2009 Act is to permit, in a future case, even a person who has not “fled” to be sent back to a jurisdiction in the position of Hungary in this case. But in relation to Mr. Tobin, who had, prior to the 2009 Act, acquired a right on the sort specified above, s.27(1)(c) of the 2005 Act provides a presumption that this right is not interfered with by new legislation.
In the course of argument on this appeal it became clear that s.6(c)(ii) of the 2009 Act was a specific response to the judgment of this Court in Tobin 1. Mr. Collins S.C. for the authorities was specifically asked whether the amendment was targeted at Mr. Tobin and he rejected that proposition. Accordingly, the provision is of general application in both wording and intent so that the section mentioned does not contain any clear expression of intention to remove the specific right acquired by Mr. Tobin. But that is what it would have to do in order to disapply the presumption contained in s.27 on the basis of the general provisions of s.4.
Accordingly, I consider that the amending statute of 2009 does not have the effect of removing the right vested in Mr. Tobin as a result of the decision in Tobin 1. In this regard I agree generally with the reasoning of O’Donnell J.
I am unhappy with the Central Authority’s blaming the difficulty which arose due to the Tobin 1 proceedings on the legislature at all. Subject only to the provisions of the Constitution, the legislature is entitled to legislate as it thinks fit. It is not for any outside body to criticise them for doing this. The Central Authority may wish they had legislated in a different way but that is not a ground of criticism. The Central Authority, like every citizen, including Mr. Tobin, is bound by the legislation as it is or was until repealed or amended. Moreover, the concept of “fleeing” is not one the legislature drew out of thin air. It is specifically referred to in the Tampere conclusions, which preceded the Framework Document on the European Arrest Warrant.
Just as Mr. Tobin cannot complain that Ireland decided to implement the European Arrest Warrant system in 2003, so the Central Authority cannot complain of the terms in which the Oireachtas enacted the Statute. But the central feature is that the Central Authority knew precisely the terms of the Statute when it instituted the proceedings in Tobin 1 and appears to me to have known, not later than the time when Mr. Tobin filed his points of objection, that those proceedings were greatly flawed.
Section 37 Objection.
As set out above, this appeal raised various issues other than those disposed of in the preceding parts of this judgment. Since the issues on which I have reached conclusions are sufficient to dispose of the case, I do not propose to express any opinion on the balance of the issues. However I propose to make an observation about one such issue.
On the hearing of this appeal, Mr. David Keane S.C., who was with Mr. Murray, advanced a number of arguments to the effect that Mr. Tobin should not be surrendered by reason of the provisions of s.37 of the 2003 Act. This, insofar as relevant provides:
“37(1) A person shall not be surrendered under this Act if
(c) affect any right privilege obligation or liability acquired, accrued or incurred under the enactment…
Under this heading, Mr. Keane advanced various alleged deficiencies in the procedures relating to the investigation and trial of Mr. Tobin in Hungary. Prominent amongst these were the exclusion from evidence of the statements of Mr. Tobin and his passengers, on the ground that they had been translated by Ms. Káta Soós, daughter of Dr. Tibor Soós, a lawyer who was advising Mr. Tobin on certain complaints about the examination or non-examination in particular respects of the vehicle involved in the accident.
I wish to say only that, if the issues resolved in favour of Mr. Tobin in this judgment had been resolved against him, I might well have felt it necessary to look into these complaints. It is, of course, entirely possible that the alleged deficiencies could be fully explained. It must also be emphasised that the Court has before it only Mr. Tobin’s account of these matters because the applicant has not filed or procured any affidavit contradicting or disputing what he says.
But I do not presently consider that any consideration arises along the lines of “mutual trust and confidence” on the basis of Hungary now subscribing to the European Arrest Warrant system or being a member of the European Union (it was not such a member at the time of the accident) to exclude such enquiry. The fact is that I (and, as far as I know, the same applies to all Irish lawyers) know nothing whatever about Hungarian law, and nothing about the manner in which it is implemented and practised, anymore than one would expect an Hungarian lawyer to have any real or useful knowledge of Irish law. In those circumstances, where a complaint is made which appears to call for comment from the opposing party, it should be enquired into. There is in my view at present no basis for prescinding from this exercise on the basis of an entirely notional respect and confidence which in practice co-exists with an absolute ignorance of the system involved. But I reserve a definitive resolution of this issue to a case where it necessarily arises.
For the reasons set out in this judgment, I would decline to order the delivery of Mr. Tobin to Hungary on the grounds that:
(a) Neither in the European Arrest Warrant grounding the present application, nor anywhere else, has the requesting State complied with the mandatory terms of s.11(1)(f)(iii) of the Act. Insofar as the affidavit of Dr. Klara Nemeth-Bokor, and the same person’s letter on the 14th June, 2010 are in the nature of “separate documents” which may compensate for the deficiency in the European Arrest Warrant, I find that these documents are contradictory and inconsistent one with the other. I am gravely concerned that the reference to release after eighteen months, which was in the Third European Arrest Warrant, has vanished from the Fourth such Warrant. In the result, I simply do not know the length of the sentence which we are asked to surrender Mr. Tobin to serve.
(b) By reason of the provisions of s.27 of the Interpretation Act, 2005, I consider that Mr. Tobin is entitled to the benefit of our presumption that the amending statute of 2009 does not disturb the right vested in him as the result of the decision of the High Court and of this Court in Tobin 1. I do not consider that s.4 of the Act of 2005 operates to displace this presumption in the present case. In this regard, I agree with the judgment of O’Donnell J. in this case.
(c) For the reasons given above I consider that this second application, which came before us some twelve years after the accident to which the sentence relates, is an abuse of process. I therefore consider that it would be unjust to deliver Mr. Tobin to Hungary.
(a) his or her surrender would be incompatible with the State’s obligations under
(b) His or her surrender could constitute a contravention of any provision of the Constitution…”.
(i) The Convention, or
(ii) The Protocols to the Convention,