Judgment
Title: | Minister for Justice Equality and Law Reform -v- Tobin |
Neutral Citation: | [2012] IESC 37 |
Supreme Court Record Number: | 98/11 |
High Court Record Number: | 2009 259 Ext |
Date of Delivery: | 06/19/2012 |
Court: | Supreme Court |
Composition of Court: | Denham C.J., Murray J., Hardiman J., Fennelly J., O'Donnell J. |
Judgment by: | O'Donnell J. |
Status: | Approved |
Result: | Allow And Set Aside |
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| Judgments by | Link to Judgment | Hardiman J. | | Fennelly J. | | O'Donnell J. | | Denham C.J. | | Murray J. | | |
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THE SUPREME COURT
[S.C. No.98 of 2011]
Denham, C.J.
Murray, J.
Hardiman, J.
Fennelly, J.
O’Donnell, J.
Between:
Minister for Justice and Equality
Applicant/Respondent
Respondent/Appellant
JUDGMENT delivered the 19th day of June 2012 by O’Donnell, J.
1 On the 9th April, 2000, the Appellant Ciarán Francis Tobin was driving a car in the city of Leányfalu in Hungary when he was involved in a tragic and fatal accident when his car struck and killed two young children. The circumstances of the accident were described in the European arrest warrant issued in this case as follows:
“At around the time of 3.45 pm on the 9th of April 2000 Tobin Francis Ciarán was driving Volvo S40 car with licence plate numbers GJZ-500 with four passengers along Móricz Sigmond within the city limits of Leányfalu (Hungary) in an inhabited area at a speed of 75-80 kilometres per hour proceeding from the direction of Visegrád to Szentendre. The accused steered to the right for unknown reasons, and due to the sudden movement of the steering wheel, and to the speed, being excessive compared to the traffic conditions, the vehicle went up on the side walk, which was separated from the road by a raised stone edge at a speed of 71 to 80 kilometres per hour and hit Márton Zoltai aged five who was waiting on the sidewalk, and Petra Zoltai aged two who was sitting in a pram. Both Márton and Petra Zoltai died on the spot as a result of the accident.”
2 Mr. Tobin is an Irish chartered accountant who is married and has three children. He was working in Hungary at the time of the accident. A police investigation and criminal proceedings were commenced in September, 2000. However prior to his trial Mr. Tobin was due to return to Ireland for a family occasion and applied for the return of his passport. He was given his passport and duly visited Ireland and returned to Hungary on the 30th of October, 2000, and notified the Hungarian court. He then completed the term of his service and left Hungary permanently on the 30th November, 2000, returning to Ireland. In a judgment already delivered in the first application for the surrender of Mr. Tobin, delivered on the 25th February, 2008, (and which I will refer to as Tobin (No.1)) Fennelly J. observed that it was clear from the legal materials provided by the Hungarian authorities that Mr. Tobin’s final departure from Hungary was within the scope of the approved arrangements.
3 Mr. Tobin did not return to Hungary for his trial which took place therefore in the voluntary and authorised absence of the accused. At the trial statements made by Mr. Tobin and other witnesses were ruled inadmissible on the basis that they had been translated by a person who was the daughter of a lawyer friend of Mr. Tobin, and thus not an interpreter considered independent of the parties. The Hungarian court delivered a judgment described by Fennelly J. in Tobin (No.1) as “detailed and meticulous”. Mr. Tobin was convicted and sentenced to three years imprisonment.
4 At the time of both the accident and the trial, Hungary was not a member of the European Union. It was however a party to an extradition agreement with Ireland. However, it appears to be accepted in these proceedings that Mr. Tobin could not have been so extradited to Hungary under that agreement because of a lack of reciprocity. Hungary did not extradite its own citizens to other countries and accordingly, Ireland was not required to extradite its citizens to any country having such a provision. However, it should be said that no request was made under the then existing extradition arrangements.
5 In 2004 Hungary joined the European Union and became a designated country under the European Arrest Warrant Act 2003. An international arrest warrant was issued in Hungary in 2004 and a European arrest warrant issued in April, 2005. After some confusion, an application for surrender was heard and determined by the High Court in December, 2006 (“Tobin (No.1)”). Section 10 of the then applicable provisions of the Act of 2003 provided that a person could be surrendered “on whom a sentence of imprisonment or detention has been imposed and who has fled from the issuing state before he or she – (i) commenced serving that sentence, or (ii) completed serving that sentence.” (Emphasis added) The High Court concluded that it could not be said that Mr. Tobin had “fled” Hungary within the meaning of the Act, and accordingly he could not be surrendered.
6 The decision was appealed to the Supreme Court. On the 3rd July, 2007, the court unanimously affirmed the decision of the High Court. Subsequently Fennelly J. delivered a judgment with which all other members of the court were in agreement. Both Peart J. in the High Court, and Fennelly J. in the Supreme Court, referred to the Tampere conclusions of the European Council of October, 1999 which had referred to the abolition of formal extradition procedures between member states in respect of “persons who are fleeing from justice after having been finally sentenced”. However, it was apparent that no such phrase was included in Council Framework Decision 2002/584/J.H.A. of the 13th of June, 2002, on the European arrest warrant and the surrender procedures between Member States, O.J. L190/1 18.7.2002 (hereafter “Framework Decision”). Fennelly J. concluded that “the respondent’s leaving of Hungary could not reasonably be described as “fleeing” or “flight” in accordance with any generally understood meaning of the word”. Fennelly J. also observed that since no reference to fleeing was included in any operative provision of the Framework Decision, there was no question therefore of a conforming interpretation of the Act. If a court were to hold otherwise it would be acting contrary to the clear meaning of the Act of 2003 i.e. contra legem.
7 The judgment of the Supreme Court of the 25th February, 2008, brought to an end the proceedings on foot of the European arrest warrant issued in April, 2005. What transpired thereafter became the subject matter of these proceedings and this appeal. One consequence of the decision of the High Court and Supreme Court in Tobin (No.1) was that it was apparent that the Act of 2003 did not properly implement the Framework Decision, since the requirement of “fleeing” as interpreted by the courts, was not itself required by the terms of the Framework Decision. It appears that on the 21st July, 2009, the Oireachtas enacted the provisions of the Criminal Justice (Miscellaneous Provisions) Act 2009, and notice of the passage of that legislation was published in Iris Oifigiúil on the 24th July, 2009. The terms of Part II of the Act contained a number of amendments to the European Arrest Warrant Act 2003. Section 6(c)(ii) amended s.10 in deceptively simple terms. It provided that s.10 was to be amended;
“By the deletion of the following words:
“and who fled from the issuing state before he or she –
(i) commenced serving that sentence, or
(ii) completed serving that sentence.”
It is not in dispute that the effect of this amendment was to remove the so called fleeing requirement which had in turn been the ground upon which Mr. Tobin had successfully resisted the 2005 warrant. On the 25th August, 2009, the relevant provisions of the Act of 2009 came into force pursuant to the Criminal Justice (Miscellaneous Provisions) Act 2009 (Commencement) (No. 2) Order 2009 (S.I. No. 330 of 2009)
8 On the 17th September, 2009, a further European arrest warrant was issued seeking the surrender of Mr. Tobin in respect of the sentence imposed upon him by the Hungarian courts. On the 14th October, 2009, that warrant was endorsed for the High Court, and on the 10th November, 2009, Mr. Tobin was once again arrested. In the meantime, on the 4th November 2009 the text of the Act of 2009 had been formally published on the Oireachtas website. When arrested, Mr. Tobin was recorded as having replied after caution:
“I thought it was all over after the Supreme Court.”
To a large extent, the question on this appeal is whether Mr. Tobin’s immediate and understandable reaction to his arrest and caution was correct as a matter of law.
9 On the 11th February, 2011, the High Court (Peart J.) delivered a lengthy judgment on the application, and rejected Mr. Tobin’s objections and made an order for surrender. Section 11 of the Criminal Justice (Miscellaneous Provisions) Act 2009 had amended s.15 of the Act of 2003 by providing that an appeal could only be brought “if, and only if, the High Court certifies that the order or decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court”.
On the 9th March, 2011, the High Court certified the following points as such points of law of exceptional public importance:
“(1) Whether it is an abuse of the process and/or contrary to Articles 6, 34 and/or 37 of the Constitution or as 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:
(i) The first such proceedings failed following a determination by the High Court and Supreme Court that the respondent had not fled from the requesting state as required pursuant to the law as it stood at the time of the said proceedings.
(ii) Second proceedings have been instituted following an amendment of the European Arrest Warrant Act 2003 so as to remove the terms that the respondent 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.
(2) Whether the provisions of the European Arrest Warrant Act 2003 as amended apply to convictions imposed on states prior to the right sections of the European Union.
(3) Whether s.5 of the 2003 Act as amended requires the Minister in establishing correspondence to demonstrate that offence as described and identified in the warrant would in its entirety constitute an offence under Irish law and whether the offence particularised in the warrant herein disclosed an offence under Irish law.
(4) Whether it is a breach of the right to equality under Article 40.1 of the Constitution and family rights under Articles 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 where the appellant is an Irish citizen to be extradited to Hungary in circumstances of having fled the jurisdiction it is not possible to serve his sentence of imprisonment in Ireland without returning to Hungary.”
10 To understand some of the issues referred to in the certified questions it is necessary to set out some further factual matters. In the first place, it appears that the Irish Central Authority sought agreement from the Hungarian authorities that if Mr. Tobin was returned to Hungary he would be permitted a retrial. This however was not permissible under the relevant Hungarian provisions. Even more pertinently, it was disclosed in these proceedings that the Hungarian authorities had sought to have Mr. Tobin serve his sentence in Ireland. In common with a number of other countries, Hungary does not allow the surrender of its citizens, but will instead make provision for the execution of a foreign sentence in Hungary. However the Transfer of Execution of Sentences Act 2005 is the statutory basis in Ireland for the execution of sentences imposed in other countries upon either Irish citizens or those with close ties to the State. Section 7 of that Act permits the Minister to consent to the execution in the State of the sentence imposed in another country “on a person who fled to the State” before commencing service of the sentence or completing service of the sentence. It was thus considered that it was not possible to permit Mr. Tobin to serve his sentence in Ireland by virtue of the same language which had resulted in his successful resistance of the first European arrest warrant.
11 The disclosure of this information gave rise to some correspondence between Mr. Tobin’s solicitors at the Department of Justice. In a letter of the 30th March, 2011, Mr. Tobin once again expressed his deep and sincere sympathy to the bereaved family of the two young children who died in the fatal road traffic accident. The letter also recorded that Mr. Tobin acknowledged the understandable strength of feeling to which his case had given rise to in Hungary and the strong desire for closure that appeared to exist on all sides including on the part of his own family and himself. Accordingly the letter formally indicated Mr. Tobin’s willingness in principle to serve a term of imprisonment in Ireland in respect of the conviction. That offer was conditional upon Mr. Tobin not being required to return to Hungary. That letter was responded to by letter from the Chief State Solicitor’s Office (hereafter the C.S.S.O.). It may have been that there was some intervening oral communication between the parties because the letter from the Chief State Solicitor stated that it would be inappropriate to make any response on the question of the amendment of the Transfer of Execution of Sentences Act 2005. That question does not appear to have been raised in the letter of the 30th March, 2011. More significantly, the letter from the C.S.S.O. also made reference to the provisions of the Transfer of Sentence Persons Act 1995. That regime however is a different and self-standing regime that involves the transfer of person rather than sentence and more particularly requires the person to be serving a sentence in a foreign country. Accordingly Mr. Tobin would have been required to return to Hungary and make a request for transfer. The letter also recorded that that process could take on average between twelve and eighteen months to complete. The letter concluded by pointing out that Mr. Tobin was in a position to “go into custody in this jurisdiction thereby availing of Article 26 and receiving the requisite credit for time spend in custody”. This latter reference was to the provisions of Article 26 of the Framework Decision which allowed credit to be given for time spent in custody on the European arrest warrant pending surrender to the requesting state.
12 On the 7th November, 2011, Mr. Tobin’s solicitors repeated his willingness to serve a sentence in this State and expressed his disappointment that the process of transfer of the sentenced person could take between twelve to eighteen months to complete. The letter expressed the view that this was a significant, disproportionate and entirely unnecessary burden being imposed upon Mr. Tobin and his family. It also recorded the fact that Mr. Tobin had received a number of threats to his life from persons believed to be in Hungary and was very concerned about the risk to his safety which a return to Hungary would involve. It should be said that in his grounding affidavit Mr. Tobin made reference to a number of such threats, and indeed to the hostile media coverage in Hungary which his case had provoked. In the circumstances the letter formally communicated Mr. Tobin’s intention to enter into custody immediately pending the hearing of this appeal from the Supreme Court. That application was made before the High Court on the 9th November, 2011. Accordingly since that date Mr. Tobin has been in custody pending the determination of this appeal.
13 The questions certified by the High Court are themselves broad and far-reaching, but since the Act of 2009 does not restrict the appellant to the certified grounds, Mr. Tobin’s counsel understandably sought to argue a number of other issues, including arguments which had been rejected in the High Court in Tobin (No. 1), and which had been the subject of a cross-appeal, but which had not been the subject of any determination in this Court because the Minister’s appeal on the question of fleeing had failed. Accordingly, in this Court, Mr. Tobin’s counsel advanced ten separate grounds as a basis for overturning the decision of the High Court. These grounds were argued with ingenuity and skill and I mean no discourtesy to the sophistication with which the matters were advanced, when I say that the clarity of the argument has allowed me to come to conclusions on some at least of these matters which can, I hope, be stated relatively briefly. However others require some more extended discussion.
Correspondence
14 It was argued that the offence described in the warrant as “the misdemeanour of violation of the rules of public road traffic by negligence causing death” did not correspond to any events in Irish law, and accordingly that surrender was prohibited by s.38(1)(a) of the Act of 2003. The principal ground advanced, was that on the facts alleged there was no assertion of fault on Mr. Tobin’s part which it was said was a requirement of any criminal offence, pursuant to the decision of this Court in C.C. v. Ireland [2006] 4 I.R. 1. In common with the High Court judge, I am however quite satisfied that the facts alleged here correspond to a number of Irish offences including, but not limited to, those of dangerous driving, and dangerous driving causing death contrary to s.53 of the Road Traffic Act 1961 as amended, and indeed to a number of lesser offences. The requirement of correspondence in cases other than those falling under Article 2(2) of the Framework Decision is, and remains, a fundamental provision of the law of surrender. That is because it embodies the principle of double criminality namely, the requirement that the matters in respect of which a person is sought to be surrendered for trial or the execution of sentence, should themselves be matters which are, or would be, offences under the law of the executing state. However, once double criminality is established, there is no further requirement of identity of approach, or correspondence as to the gravity with which the offence is viewed. Correspondence, as required by the Act of 2003, was in my view clearly present here.
Compliance with Section 11 of the Act of 2003
15 Counsel for Mr. Tobin conducted an impressively meticulous analysis of the warrants issued. He pointed out that the warrant, the subject matter of these proceedings, was in fact the fourth warrant issued in relation to this matter. There was, he said, a significant degree of confusion as to the precise sentence which had been imposed on Mr. Tobin, particularly as a consequence of the appeal decision. He suggested that at the time of Tobin (No. 1) all parties believed that the effect of the appeal had been to suspend the last eighteen months of the sentence. However, it is now asserted that the effect of the appeal was merely to identify the point (eighteen months) after which Mr. Tobin would be eligible for a form of parole or release. He contended that in this respect the warrant failed to comply with s.11 of the Act of 2003 which provided in its material terms that “A European arrest warrant shall specify … where that person has been convicted of an offence specified in the European arrest warrant and that sentence has been imposed in respect thereof, the penalties of which that sentence consists”. (Emphasis added)
16 The High Court judgment recited the fact that the central authority had produced letters from the Ministry of Public Administration and Justice in Hungary which made it clear that whether Mr. Tobin would be released after eighteen months was a matter to be decided by the penitentiary judge. It also stated that this official was not a judicial officer but was responsible for penitentiary affairs, and decided issues of early release on parole if there was reason to believe in view of the person’s good conduct while serving the sentence that he would lead a good life and further incarceration was not required. There is now no confusion about the sentence imposed upon Mr. Tobin, even if there was substantial confusion as to how that position was arrived at. Furthermore, the necessity to state the sentence imposed is related, even if not exclusively, to the question of minimum gravity. Here there is no question but that the sentence is one which is of sufficient gravity as to fall within the European arrest warrant regime. In light of the fact that that regime necessarily involves communication between different languages, cultures and legal systems, it is not in my view, either possible or indeed appropriate to determine that the penalty imposed upon Mr. Tobin has not been sufficiently specified. Accordingly, I agree with the High Court judge, that Mr. Tobin cannot succeed on this ground.
Delay
17 Although delay is not in itself a specific ground for refusal of surrender under either the Framework Decision or the Act of 2003 (as amended) it was argued that s.37 would prohibit surrender where there was excessive and inordinate delay such as to contravene Mr. Tobin’s rights under the Constitution, or the European Convention on Human Rights (hereafter “E.C.H.R.”). Consequently Mr. Tobin pointed to the period of time that had elapsed since the original tragedy, and submitted that it was evident that excessive and inordinate delay had occurred. Counsel referred to O’Keeffe v O’Toole [2008] 1 IR 227 in which a ten year delay on extradition was regarded as exceptional and itself a ground for refusing surrender. He also referred to Wenting v High Court of Valenciennes (2009) E.W.H.C. 3528, where the English High Court refused to surrender a Dutch national in relation to a drugs offence committed some twenty years earlier where he had spent two years in custody pending trial and had lived a blameless and hardworking life thereafter, built up his own business, and had never come to the attention of police.
18 There is no doubt that in principle it is possible that delay can amount to a denial of the constitutional right to a trial in due course of law. If it would be a breach of the constitutional rights of a similarly situated accused to be tried in an Irish court, it must follow that surrender to face a trial in a foreign court after the same time must normally be a breach of the constitutional rights of the citizen, and therefore be a ground of refusal of surrender under s.37. However the facts here are some distance from the type of situation which might give rise to refusal of surrender on grounds of delay. First, the request for surrender is to serve a sentence already imposed, and not to face a trial. Any question of the passage of time degrading evidence and making the defence of the charge more difficult simply does not arise. Second, to take the period from the original offence to the date of this Supreme Court appeal is to run together a series of different periods of time and blur the important distinctions between them, and the responsibility of different actors for such periods. For example, the Irish Central Authority cannot be responsible for the actions of the Hungarian authorities in prosecuting Mr. Tobin, and more pertinently, the Hungarian authorities cannot be criticised for not seeking surrender before that was legally possible. Nor are those authorities responsible for the manner in which the Oireachtas chose to enact the Act of 2003, or the process of amendment. As it transpires, it appears that Mr. Tobin’s surrender could not have been sought prior to 2004, and could not have been sought successfully, prior to the passage of the amendments in the Act of 2009. Looked at in this way, the core period is between the time when it was possible to issue a warrant in respect of Mr. Tobin (which is either the passage of the Act of 2003, or, perhaps more accurately, after the amendments contained in the Act of 2009), and the period in which any such application is brought before the High Court. That core period must of course be considered against all the facts of the case. When viewed in this way, it is apparent that there has neither been culpable delay, nor the type of lapse of time which would render it so unfair to proceed with the surrender process, as to constitute a breach of the constitutional rights of Mr. Tobin. Indeed it is notable that Mr. Tobin complains elsewhere, not so much of time being allowed to lapse, or steps not been taken as quickly as possible, but rather that he has been subjected to a ten year process of legal proceedings. Furthermore, in the specific context of the present warrant he complains that it was issued in fact too speedily. In the circumstances of this case, it is not possible to conclude that the point has been reached in this case where it would simply not be fair to permit Mr. Tobin to serve his sentence imposed upon him by the Hungarian courts.
Generally Inaccessible Legislation
19 This argument turns upon the fact that the Act of 2009 was passed and came into force as a matter of Irish law a period of weeks before the legislation itself was generally available on the Oireachtas website, and that during that period the European arrest warrant issued here was endorsed by the High Court on the application of the Minister. Once the warrant was endorsed, Mr. Tobin was at risk of being arrested and losing his liberty. On the facts of this case the Act was available on the Oireachtas website before Mr. Tobin was actually arrested under the warrant. However, it is argued that while it has been established in Minister for Justice v. Adach [2010] I.E.S.C. 33, that conditions for promulgation of a law under the Irish Constitution are satisfied so that a statute becomes part of the law of the land “as on and from the day from on which the Bill is signed by the President”, an arrest pursuant to a warrant granted at a time when the relevant legislation was not generally available to the public,(and in particular to the person arrested) was a breach of Article 5 of the E.C.H.R. in that it would amount to a deprivation of liberty other than in accordance with law. In this context it was argued that “law” must be understood to include a requirement that any such laws should be accessible, relying in this regard on the decision of McCloskey J. in the North of Ireland High Court in Chaos v Spain [2010] N.I.Q.B. 68. Moving from this proposition it was argued therefore that the warrant which authorised the deprivation of Mr. Tobin’s liberty was endorsed at a time when there was no “law” in the sense of a provision which was generally accessible and a warrant endorsed in such circumstances must be understood therefore as being itself a breach of Article 5. If so, to surrender Mr. Tobin on foot of such a warrant would also be a breach of his rights under the Convention, and therefore prohibited under s.37 of the Act of 2003.
20 This argument turns upon the contention that the accessibility of the law is an essential component of its validity and its status as law. Counsel pointed out that when Professor Lon Fuller sought to identify eight essential elements in the rule of law, in his important work The Morality of Law, he identified as the second element the requirement that “laws must be published” (The Morality of Law: Yale University Press, 2nd Ed. 1969, 49). The reference to Professor Fuller’s well known work is particularly apposite since it can be said that his attempt to discern an irreducible moral content to which any system of law had to conform in order to be valid, was influenced by the same reaction to the excesses of totalitarian regimes which gave rise to the demand for entrenched declarations of rights and which led inter alia to the European Convention on Human Rights. The importance of accessibility of law as an essential component of a valid or at least respectable, legal system, and has occupied writers from Roman times to St. Thomas Aquinas, Blackstone, Austin and others. The present situation is of course very far removed from the trick ascribed by Blackstone to Caligula, of complying with the formal requirements of promulgation by publishing laws in small letters on tablets attached to the top of high pillars, but the principle itself is of such fundamental importance to a functioning legal system that even the outer limits of the principle must be carefully respected.
21 There is no doubt that the ideal situation is when the legislative process is thoroughly transparent, and accessible to any interested observer, and where the outcome of that process is immediately and readily available to those affected by it. In a modern digital age that desideratum should be more easily achieved than when paper printing was the accepted method of publication. However, the fact that a more perfect and immediate system of promulgation of law could be readily envisaged than the situation which obtained when the warrant for Mr. Tobin was issued and endorsed, does not mean that an order of surrender of Mr. Tobin would offend Article 5 of the E.C.H.R.
22 There are a number of weak points in the argument, attractively formulated though it was. Most obviously, the E.C.H.R., like the fundamental rights provisions of the Irish Constitution, exists to provide real protection to individual rights. Here the relevant right asserted was that of liberty. That right is infringed by the detention of a person in circumstances not authorised by law. By the time Mr. Tobin’s liberty was interfered with by the execution of the warrant the relevant law was undoubtedly accessible. Indeed, it might be said that the law permitting Mr. Tobin’s arrest had always been accessible since at least 2004. Mr. Tobin’s complaint was with the removal of the provision which would have given him a good basis for resisting ultimate surrender. Furthermore, s.37 is concerned with circumstances in which surrender would itself be a breach of the convention. While that may be related to the circumstances in which he is detained, or more remotely, which prevailed when his detention is authorised, it is not necessarily always the case. I conclude that there was here no breach of Mr. Tobin’s Article 5 rights so as to render his surrender a breach of s.37. In so concluding I have not had to consider, and therefore do not decide, that the fact that legislation when enacted is not immediately available in its enacted form would mean that during that time such legislation could not be “law” for the purpose of Article 5 of the Convention. There is a high degree of transparency in the Irish legislative process. Any interested observer can ascertain the terms of the provision being put to the legislature and the terms of any amendments proposed and indeed the outcome of that process. Prior to the digital age it was commonplace for courts to be referred to copies of the Bill “as enacted” prior to a printed copy of the Act becoming available. In truth the present position has a higher degree of transparency and accessibility and a shorter gap between formal enactment and general publication than existed at the time at which Ireland acceded to the Convention. Notwithstanding the great importance which is and should be attached to ensuring that the law is generally accessible, it might be surprising if the present position in Irish law while falling short of the ideal, was nevertheless found to offend against the Convention. However, that would depend upon a precise analysis of the accessibility of the legislative process in any particular case where that issue was critical to the court’s decision.
Pre-accession Offences
23 Counsel for Mr. Tobin pointed to the fact that the offence of which Mr. Tobin had been found guilty and also his conviction and the confirmation of that decision on appeal, all pre-dated Hungary’s succession to the European Union and accordingly the date upon which it became a party to the Framework Decision and therefore a designated country for other members of the European Union. He argued that the entire Framework Decision was explicitly predicated upon the close ties and mutual trust and confidence between member states which justified the more streamlined surrender process introduced by the Framework Decision. Such trust and confidence between member states was justified in respect of post-accession convictions, because not only had the existing member states accepted the new member but the application process necessarily involved satisfying the European Union that any applicant was suitable for membership and in particular that their legal system was compatible with the shared system of values underpinning the European Union. There was however no basis he said for extending such trust and confidence to the pre-accession legal systems of relevant states. Indeed, in the case of many former communist countries, it might be said that the whole process of accession was itself a positive reason not to extend such trust and confidence since one of the requirements of accession would normally be that member states would adopt legal systems which were compatible with the shared systems of western democracies. Acknowledging in advance the hyperbole involved, counsel nevertheless pointed out that if there was no temporal limit on convictions which could be enforced under the Framework Decision, then in theory, the process could require an Irish court to surrender a person in respect of convictions obtained under Stalinist or Nazi legal regimes. In such circumstances the Irish courts would be required to repose trust and confidence in convictions obtained under legal systems repellent to the essence of their own legal system. Accordingly he argued that it was implicit in the Framework Decision that it only applied to legal proceedings and convictions which post-dated the accession of the relevant country to the European Union. In that regard he relied on cases such as Andersson v Sweden (C-321/97) [1999] All E.R. (D) 620, where the European Court of Justice held consistently, that it did not have jurisdiction to examine events that occurred prior to member states accession to the European Union. During argument, counsel were referred by a member of the court to a recent decision of the Court of Justice of the European Union in the case of C17/10 Toshiba Corporation v. Urad pro ochranu hospodarske souteze (14th February, 2012) to like effect, and supplemental submissions on the point were delivered by both sides.
24 The proposition, for which counsel contends, is closely related to the presumption in favour of prospective operation of legislation particularly in matters affecting criminal law. In my view however there is an important distinction between the cases which would involve the application of substantive European law to events pre-dating accession, and the application of the Framework Decision to request for surrender post-dating accession. There is no question here, of the application of European Union law to events predating accession; indeed the substantive law involved is a matter of domestic law. Union law in the shape of the Framework Decision is being applied here to a post-accession event, which in this case, is the request for surrender. Furthermore, this is consistent with the underlying theory. The legal system in which the courts of the requested state is required to repose trust and confidence under the system is the legal system making the request, not necessarily the system imposing the conviction. If a member state requests surrender it is because its present legal system has considered it appropriate to do so. That is the relevant judgment in which other states are required to repose confidence. Furthermore, the fact that the European Court of Human Rights is applicable both in the requesting member state and the executing member state, means that if the underlying conviction was achieved by a procedure which infringed the rights of the individual under the Convention, then a remedy is available in the courts of both the executing and the requesting state. Of course it should be emphasised that the argument here was advanced simply at the level of theory: it was not suggested that the legal system under which Mr. Tobin was convicted, was one which was not worthy of trust or confidence. Indeed the very fact that Ireland had its own extradition agreement with Hungary prior to its accession to the European Union, shows that Ireland was prepared to extradite persons who were subject to the pre-accession legal system.
25 If counsel’s arguments were correct, then on the entry into force of the Framework Decision and indeed on accession of new member states, it would be necessary to make provisions for very detailed and complex transitional provisions. Otherwise many pre-accession convictions would be in a limbo where they could not be the subject of a surrender request under the Framework Decision, or extradition under the pre-existing code. It is striking that the Framework Decision, which is intended to be the exclusive method of enforcing surrender between member states, does not contemplate such elaborate transitional arrangements. It is true that Article 32 permits member states to indicate at the time of adoption of the Framework Decision that they would continue to deal with requests relating to acts committed before a specified date in accordance with the system applicable before the coming into force of the Framework Decision. However that date could not be later than the 7th August, 2002. Furthermore Article 32 only operates as of the date of adoption at the Framework Decision and not otherwise, and expressly does not extend to acts committed between August, 2002 and the coming into force of the Framework Decision in January, 2004. While Article 31 does permit parties to adopt further bilateral and multilateral agreements in relation to surrender after the coming into force of the Framework Decision, such agreements appear only to be permissible where they further simplify the process of surrender. It seems obvious therefore that if the Framework Decision only applies to post-accession acts there could be a very large lacuna in relation to surrender between friendly states, even where there was no reason to doubt either the fairness and integrity of the system in general or the specific proceedings in particular. This would be completely inconsistent with the entire thrust of the Framework Decision. This consideration supports the conclusion that the Framework Decision applies to pre-accession acts, if made the subject of post-accession requests. As was pointed out by counsel for the Minister, it is a well-known feature of extradition procedures that they apply to post-agreement requests which may relate to pre-agreement acts. This is indeed reflected in the decision of the European Court of Justice in case C296/08 PPU Criminal proceedings of extradition v. Ignacio Pedro Santesteban Goicoechea at para.88 of the judgment:
“According to settled case law, procedural rules are generally held to apply to all proceedings pending at the time when they entered into force, whereas substantive rules are usually interpreted as not applying to situations existing before their entry into force (Dell’ Orto para.48) Article 18(5) of the 1996 convention provides that that Convention is to apply to requests submitted after the date on which it is applied as between the requested member state and the requesting member state. Article 32 of the Framework Decision for its part provides that requests received after 1st January 2004 would be governed by the European arrest warrant rules. While in both cases the new rules apply not to pending requests but to those made after a specified date, they have in common that they apply to requests relating to acts prior to the date of application with the new rules.” (Emphasis added)
Accordingly, I am unable to accept the argument that the Framework Decision and any domestic implementing legislation is not applicable to offences occurring before the accession of Hungary to the European Union.
Fair Procedures
26 A closely related argument is that the proceedings under which Mr. Tobin was convicted were themselves in breach of fair procedures, with the consequence that it was said it would be a breach of the constitutional rights of Mr. Tobin to be surrendered to serve a sentence imposed following such proceedings. In this regard, counsel relied upon what he characterised as the failure of the Hungarian authorities to preserve evidence. This related to the fact that although Mr. Tobin had suggested that his car had failed to respond to the brakes at the time of the accident, the car was returned to the garage by the Hungarian authorities. Counsel also referred to the fact that the statements made by Mr. Tobin and his witnesses had been ruled inadmissible by the Hungarian court. It was not suggested however that this ruling came as a surprise, or was in any way discordant with the existing law in Hungary. Indeed, the statements were ruled inadmissible in their entirety, and accordingly could not be relied on by the prosecution or the defence. Any difficulties the ruling posed for the defence of the case, were a consequence of Mr. Tobin’s voluntary decision not to return to Hungary for the purposes of the trial and not to ensure that his witnesses attended the trial so that they could give evidence in person. While it has been determined that Mr. Tobin did not flee from Hungary it is equally the case that he did not voluntarily return.
27 Mr. Tobin’s case in this regard was wholly dependent on the facts and the argument made by counsel in reliance on existing Irish law. There was no attempt to adduce any expert evidence on the status of the Hungarian legal system and its rules in the years between 2000 and 2002, and no reference made to any review of that system by a respected international body. In my judgment, it is entirely insufficient to seek to persuade an Irish court that the rules of procedure of another country’s legal systems are not merely defective, but a breach of the Irish constitutional rights of the citizen by pointing to features of that system which may differ from the procedures of a criminal trial as conducted in Ireland. As Murray C.J. said in Minister for Justice v. Brennan [2007] 3 I.R. 732 at p.744:
“That is not by any means to say that a court, in considering an application to surrender, has no jurisdiction to consider the circumstances where it is established that surrender would lead to a denial of fundamental or human rights. There may well be egregious circumstances such as a clearly established and fundamental defect in the system of justice of a requesting state, where a refusal of an application for surrender may be necessary to protect such rights. It would not be appropriate in this case to examine further possible or hypothetical situations where this might arise. The sole matter which I wish to make clear here is that the mere fact that a trial or sentence may take place in a requesting state according to procedures or principles which differ from those which apply, even if constitutionally guaranteed, in relation to a criminal trial in this country, does not of itself mean that an application for surrender should be refused pursuant to s.37(2) of the Act”.
The Transfer of Execution of Sentences Act 2005.
28 Counsel on behalf of Mr. Tobin pointed to the form of catch 22 situation in which he said his client had found himself. His very success in Tobin (No. 1) in determining that he had not fled from Hungary was now invoked to prevent him from being allowed to serve the Hungarian sentence in Ireland because fleeing was a requirement of the Act of 2005. He argued that if the fleeing requirement was to be removed from the Act of 2003 the Oireachtas should also have removed it from the Act of 2005 to ensure symmetry between the legislation. Counsel also referred to the Court to the exchange of correspondence in which Mr. Tobin had offered to serve his sentence in Ireland if he could be reassured that he would not be required to return to Hungary because of his fears for his safety there.
29 At a human level it is certainly more than frustrating that when Mr. Tobin evinced a willingness to serve his sentence in Ireland – a solution which had been sought by the Hungarian authorities – that much greater effort was not made at an administrative level to bring that situation about. This was an occasion on which some flexibility and effort at national level might have avoided much of the stress and anxieties for all parties involved in these proceedings and produced an outcome that might have been acceptable to all the protagonists including perhaps the family of the unfortunate victims of the accident. The response of the Department of Justice was disappointingly bureaucratic and that opportunity was lost. In the event Mr. Tobin has voluntarily surrendered his bail and has now served almost eight months in prison.
30 While it is easy to understand the frustration experienced by Mr. Tobin and his advisors, it is rather more difficult to identify the legal objection to the stance taken by the Department. It is argued however that the current legal situation was in breach of Article 40.1 of the Constitution in that persons who had fled were being treated differently, and better, than persons who had not done so, since persons fleeing the administration of justice in other states had the possibility of serving their sentence in Ireland. Counsel for the Minister pointed out however that the fleeing requirement in the Act of 2005 was not linked in any way with the provisions of the Act of 2003. Instead, it could be traced directly to the provisions of Article 2 of the additional protocol to the Convention on the Transfer of Prisoners of the 18th December 1997 which was headed “Persons having fled from the sentencing state”. There was no sense in which it can be contended that Mr. Tobin or any one else has a right to have the Act of 2005 amended. I agree. I cannot accept that Article 40.1 was infringed in this case. That Article does not require the Court to seek to value how different people are treated under different pieces of legislation. Between 2003 and 2009 people who had not fled but whose surrender was sought under the European arrest warrant were treated differently, and better, than those who had fled justice. As Tobin (No. 1) established, people who had not fled could not be surrendered. Nor could they be required to serve the foreign sentence here. That was not a breach to the rights of equality of a person who had fled justice during that period. Indeed the fact that Mr Tobin had no interest during that time in seeing the Act of 2005 amended (and indeed had a positive interest in it remaining in its original form) at least until the European Arrest Warrant Act 2003 was amended, is one illustration of the difficulty of the argument here. The different origins of the legislation explains why the Act of 2005 was framed in the way it was, and provides a rational justification for it. The fact that the provisions for service of a foreign sentence under the Act of 2005 could be extended to cover Mr. Tobin’s situation does not give rise to any entitlement to resist the application to him of the Act of 2003 as amended, if that Act on its true construction applies to him.
31 I should say however that while these matters do not in my judgment give rise to a legal ground for refusing surrender, they are not by any means irrelevant. Mr. Tobin is a married man with a family, and with a previously blameless record. He was convicted and sentenced in his absence in circumstances where the Department of Justice sought an assurance (which in the event could not be provided) that if surrendered he would have the possibility of a retrial. A Hungarian citizen facing similar charges in Ireland would not be surrendered but would be allowed serve his sentence in Hungary, and would not therefore suffer the additional significant punishment of serving a sentence in a foreign country far from his family and friends. The Department of Justice’s approach to the question of any transfer under the 1995 Act, namely that the transfer could only be considered once the subject had been returned and commenced serving his sentence and furthermore that the process would take on average anything between twelve and eighteen months, was decidedly unhelpful, particularly in the light of the fact that Mr. Tobin had volunteered to serve his sentence in Ireland, and under that sentence imposed it appears that he would at least be eligible for consideration of his release after the same period of eighteen months and therefore on the Departmental timescale could be released in Hungary before his transfer application had even been processed. I hope that this response was merely a product of the paralysing caution that is sometimes engendered by active litigation. If the litigation had concluded in an order of the Court requiring the surrender of Mr. Tobin, I would hope, and expect, that steps would have been taken by the relevant authorities as a matter of urgency to expedite a consideration of his application and to deal with it promptly and sympathetically not only in the interests of Mr. Tobin, who is and remains an Irish citizen, but also and perhaps more importantly, the interests of his wife and family.
Abuse of Process, Separation of Powers, & Section 27 of the Interpretation Act 2005.
32 It is a measure of the unique problems posed by this case, that the issues under these separate headings, which lay at the core of the case and attracted most of the argument, can conveniently be dealt with together. At the heart of Mr. Tobin’s case is the fact that he was the subject of an earlier application for surrender in respect of this offence and this sentence, and which resulted in a Supreme Court decision in his favour. That decision was the product of an analysis of the provisions of the Act of 2003. Accordingly, so long as surrender was governed by the provisions of that Act the Supreme Court decision was a complete bar to Mr. Tobin’s surrender to Hungary to serve the sentence imposed upon him by the Hungarian court, and Mr. Tobin was correct in his belief that the proceedings for his surrender were as he put it, all over after the Supreme Court. However, the Act of 2003 has been amended and the provision upon which Mr. Tobin’s success depended, has been repealed and is no longer in force. Is the Supreme Court decision still a bar to surrender even though the legislation it interpreted and applied is no longer the law? This was the question posed by this case and to which counsel readily acknowledged that the decided cases provided no clear cut answer but only clues. It was necessary therefore to argue the case not simply by reference to dicta or decisions in prior cases, but by seeking to construct a coherent principle which could be said to be deduced from dicta from cases in sometimes disparate areas. The obvious difficulty for the argument on Mr. Tobin’s behalf that the decision of the Supreme Court in Tobin (No.1) barred a further application for surrender even after the change in the relevant law, was the fact, readily acknowledged by counsel, that it was an established feature of the law of extradition, and of surrender under the European arrest warrant regime, that a decision refusing surrender or extradition on the grounds for example of a defect in the warrant, was not a bar to the issuance of a further warrant and a successful application thereon. The difficulty for Mr. Tobin’s case therefore was to identify a principle upon which he could succeed, but which was not inconsistent with the decided cases which established the lawfulness of successive applications for extradition/surrender. Counsel sought to advance three different, though related, arguments to this end.
Abuse of Process
33 The last three points argued by counsel on behalf of Mr. Tobin sought to address in different ways what were contended were the legal consequences of the decision in Mr. Tobin’s favour, in Tobin (No. 1). It was argued firstly, that the well established jurisdiction to dismiss proceedings, whether civil or criminal, as an abuse of process, was of particular application here. The starting point for this argument was the candid recognition that the doctrine of res judicata did not apply to proceedings such as this. This point was made clearly at paragraph 63 of the admirably lucid written submissions made on behalf of Mr. Tobin:
“It may be helpful at the outset to emphasise the precise grounds on which the appellant’s appeal on this point is based. In particular it should be noted that the appellant does not argue that the doctrine of res judicata applies to the second set of proceedings. It is evident the precise legal issue which was determined in the first set of proceedings – whether Mr. Tobin had fled from Hungary and could not therefore be surrendered under s.10 – does not arise for determination in this set of proceedings, following the enactment of the 2009 Act. Strictly speaking therefore, no issue of res judicata applies.”
34 This concession was wisely made. It was almost inevitable in the light of the decided authority. It has been repeatedly decided that where there has been a prior refusal of extradition on grounds such as insufficient evidence (Bolger v. O’Toole (Unreported, Supreme Court, 2nd December, 2002, Denham, J.)) or where proceedings were struck out on consent following identification of a defect in the warrant (MJELR v O’Fallúin [2010] I.E.S.C. 37 (Unreported, Supreme Court, Finnegan J., 19th May, 2010)) there could nevertheless be further successful proceedings and an order for extradition of surrender made. The position is perhaps encapsulated in the ex tempore judgment delivered by Keane C.J. in the Attorney General v Peter Jeffrey Gibson (otherwise Peter Jeffrey Valentine) (Unreported, Supreme Court, 10th June, 2004):
“It is necessary to say at the outset, that, in my view, it is clear beyond argument that in extradition cases, the mere fact that a warrant has been issued and application made arising out of the warrant to the court for an order for extradition, and that a warrant has been issued on an earlier occasion arising out of precisely the same alleged offence, and has been adjudicated on by the District Court or any court of competent jurisdiction, that fact does not, of itself and by itself, preclude a subsequent application to a court of competent jurisdiction. If there were any doubts that that is the state of the law they were, in my view, laid to rest by the decision of this court in Bolger v O’Toole … .”
35 Counsel sought to distinguish this line of authority by suggesting that there were particular features of this case which meant that while the case could not be said to be res judicata, it was nevertheless a case where a further application for surrender would be an abuse of process. In particular counsel sought to rely on what he described as the general principle of finality illustrated in the decision of Re Greendale Developments (No.3) [2000] 2 I.R. 514, where Hamilton C.J. said that “public policy requires a definite and decisive end to litigation”. In particular, counsel sought to bring this case within a principle he sought to distil from the recent decision of this Court in Re Vantive Holdings [2010] 1 I.R.118 where this court held that it was not permissible in the particular case, to renew an application for examinership. At paragraph 89 of the decision, Denham, J. said “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 that parties should not be exposed to multiple litigation and should have closure on an issue. Also there is a public interest that the limited resources of the court should be used justly and with economy”.
36 Re Vantive Holdings is a decision which follows in a line of authority through A.A. v. The Medical Council [2002] 3 IR 1, to the well known case of Henderson v. Henderson. It is implicit in this line of authority that a litigant may be precluded from pursuing a relief to which he or she might otherwise be entitled, because, to put it perhaps at its broadest, of some culpable failure on their part, most normally, to include that point in earlier litigation brought by them arising out of the same matter. It is self-evident however that the particular point sought to be addressed in this case could not have been addressed in Tobin (No.1) simply because the Act of 2009 had not been enacted. However, the argument advanced was that the Minister in his submissions in the High Court in this case had acknowledged that the reference to fleeing in s.10 of the Act of 2003 was included “in error”, and that “it should not have been there in the first place and had the Framework Decision been correctly given effect to in Act of 2003 … the respondent would have been a person in respect of whom an order for surrender had been made”. Once that mistake was identified by the appellant in his point of objections in Tobin (No.1), the Minster chose not to respond by for example withdrawing the proceedings, or bringing forward an amendment to the legislation. Rather he chose to proceed with the first set of proceedings and then, even after a clear determination in the High Court appealed to the Supreme Court. It was said that this provided a close analogy with the Re Vantive Holdings line of authority, and would be just as much an abuse of the process to permit the Minister to initiate a second set of proceedings to obtain the objective of the surrender of Mr. Tobin to Hungary to serve the sentence imposed upon him, as it was for Dr. A.A. to issue a further set of proceedings to challenge the procedures of the Medical Council, or for Re Vantive Holdings to issue a further application for the benefit of examinership. What the three situations had in common, it was argued, was that while there might well be merit in the legal points sought to be addressed, that it was an abuse of process of the court to have let an earlier set of proceedings to run to finality without raising or addressing the issue sought to be advanced in the subsequent set of proceedings.
37 In the course of argument counsel agreed that the argument made was in one way analogous to the important case of the State (O’Callaghan) v. Ó hUadhaigh [1977] I.R. 42. In that case, the prosecutor was returned by the District Court to the Circuit Court for trial on eight charges. The Director of Public Prosecutions lodged an indictment originally containing one count and the trial was transferred to the Central Criminal Court under the then applicable provisions for transfer of trial. Subsequently an indictment was lodged containing ten counts. At the outset of the case there was legal argument, and the trial judge ruled that the only indictment properly before the court was the original single count indictment. At that point the D.P.P. entered a nolle prosequi in regard to all of the counts and informed the court that the prosecutor when discharged would be rearrested and charged again with the same offences. The prosecutor had been remanded in custody for six months and was released. Subsequently he was rearrested and charged in the District Court. He sought prohibition of the charges. While it was accepted that as a matter of law, s.12 of the Criminal Justice (Administration) Act 1924 permitted the prosecutor to enter a nolle prosequi “at any time after the indictment was preferred to the jury” it was nevertheless contended that in the particular circumstances of the case the prosecution of the renewed charges would not accord with the standard of fair procedures required by the courts and guaranteed by the Constitution. While that case was not put on the explicit basis of abuse of process, the case has obvious parallels with that jurisdiction as it has subsequently developed. Any procedure which would be inconsistent with such guaranteed fair procedures, would be a breach of the constitutional rights of the individual, and therefore a ground for refusal of surrender pursuant to s.37 of the Act of 2003.
38 The case of State (O’Callaghan) v. Ó hUadhaigh was decided in the High Court and no appeal brought to this court. Nevertheless, the decision of Finlay P. (as he then was) has stood the test of time. It was a significant determination that the compliance with statutorily prescribed procedures did not exhaust the constitutional obligation of fairness, and a recognition that there may be circumstances where a course of action while within the legal powers of a body, may nevertheless be precluded because in the particular circumstances it would be unfair. In State (O’Callaghan) v Ó hUadhaigh, the accused had won a significant legal victory in his argument before the Central Criminal Court. As Finlay P. pointed out, it was not necessary that the decision made by the trial judge be correct: it was enough that it had been made. He continued at p.52:
“If the contention of the respondent is correct, the prosecutor, 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 a statutory power on the part of the Director of Public Prosecutions. In this way the prosecutor 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 appeal from the Central Criminal Court or by appeal or review in the case of an inferior court.
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 which signally failed to import fairness and fair procedure.”
I accept this unhesitatingly. However the question remains, whether in the particular circumstances of this case, the further proceedings for surrender, although legally permissible pursuant to the principle established in cases such as Bolger v. O’Toole and Attorney General v. Gibson, would nevertheless be a breach of fair procedures or, as counsel for Mr. Tobin puts it, an abuse of process.
39 Counsel referred to recent English authority of the Hamburg Public Prosecutors Office v. Altun [2011] EWHC 397 (Admin). There a Mr. Altun who was a Kurd born in Turkey, and at the time of the case a refugee living in England, was the subject of an application for surrender brought on behalf of the Hamburg Public Prosecutors Office. The offences in respect of which he was sought consisted of armed robberies carried out in Germany in 1996. Mr. Altun had fled Germany to Turkey. Turkey did not permit the extradition of its nationals but was willing to prosecute its nationals for offences committed abroad. Germany requested Turkey to adopt this procedure. The proceedings were however further complicated by the fact that Turkish law limited any penalty for such an offence to the maximum that could be imposed by the foreign state. Mr. Altun admitted the offences but it was argued on his behalf that as a consequence of new Turkish sentencing provisions colloquially described as an amnesty, that he would have to be released immediately. In circumstance of some confusion which were never completely clarified, Mr. Altun was released in 2001 having spent fourteen months in custody. He moved to the United Kingdom and obtained refugee status there.
40 The Hamburg Public Prosecutors Office issued a European arrest warrant requesting surrender from the United Kingdom, for the purposes of trial in Germany on the original charges. There was a hearing before a District judge who considered that the information, while confusing, nevertheless led to a conclusion that the sentence had been fully executed in Turkey and therefore that surrender was barred on grounds of double jeopardy. The crucial issue was the interpretation of Turkish procedure, and the judicial authority (which it should be remembered was the German prosecutor) had not been in a position to address the factual argument as to the consequences of the Turkish procedure within the time that was set by the court. Counsel for the judicial authority accepted that it was not then in a position to counter the defendant’s submissions within the timeframe permitted, and in the circumstances did not oppose discharge but expressly reserved the right of the judicial authority to issue a further European arrest warrant when all the information was to hand. Subsequently, a fresh warrant was issued and the District judge considered the matter afresh and decided that even on the full information that surrender was barred on the grounds of double jeopardy. However he rejected an argument that the renewed application was an abuse of process.
41 In the High Court on the appeal by the Hamburg Prosecutor, Ouseley J. affirmed the District judge’s conclusion that surrender was barred on grounds of double jeopardy. However noting that the issue had not been addressed by the judicial authority in argument he nevertheless expressed a “provisional view” that although “the concept of res judicata does not apply to extradition proceedings” nevertheless to further proceed in respect of the matter which had already been dealt with in the first proceedings constituted an abuse of process. Ouseley, J. stated:
“There are limitations to the way in which that principle [abuse of process] applies to extradition where one warrant may be defective and lead to discharge, lawfully to be replaced by another; and where it may be quite unnecessary for the all the arguments which may arise in a warrant in proper form to be deployed against the defective warrant.
But on the basis that that is the relevant principle to apply to the sort of issue and circumstances here, as I believe it to be, I consider that it was satisfied here. The issue of double jeopardy was before the District judge in 2006. It was for the defendant to prove on the balance of probabilities. If 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 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.”
42 Finally, reference was also made to the decision of Moses L.J. sitting in the English High Court in Office of the Prosecutor General of Turin v Barone [2010] E.W.H.C. 3004. Again the facts of that case were rather complex. Mr. Barone was the subject of a European arrest warrant issued in 2008 and certified in 2010 for the purposes of executing a 21 year term of imprisonment for three offences of aggravated murder, attempted robbery and illegal possession and carrying of firearms in 1976. In 1997 his extradition was sought to serve the sentence which had been imposed upon him in proceedings held in his absence. Under the then applicable provisions of the United Kingdom Extradition Act of 1989 a court could refuse to return a person to a foreign state if convicted in his absence and “it would not be in the interests of justice to return him on the ground of that conviction”. The Divisional Court decided that it was not in the interests of justice to return Mr. Barone, and the House of Lords subsequently refused an application for permission to appeal.
43 The basis of the Divisional Court’s conclusion was that Mr. Barone’s trial had been conducted under the then applicable provisions of the Italian code of 1930. Under that code the prosecution was able to rely on statements made by a co-accused to an investigating judge and Mr. Barone had no possibility, either by himself or through his lawyer, of properly challenging the evidence. The accomplice did not have to be called to give evidence, and if called could not be directly cross-examined. Furthermore, if Mr. Barone had given evidence himself, his evidence would not have been regarded as of equal standing with other evidence available to the court. Those provisions, it should be said, no longer applied as part of Italian law. The Divisional Court concluded it would not be in the interests of justice to extradite Mr. Barone for two reasons. First, in the light of the evidence and procedure the conviction would require to be reviewed. Second, there was no possibility of such a review.
44 When the European arrest warrant procedure was subsequently incorporated in English law, a further request for extradition of Mr. Barone was made. Under the English Act, it was no longer possible to refuse surrender on the grounds that it was not in the interests of justice to do so. In the circumstances, no attempt was made on behalf of the Italian prosecutor to address the issues which had concerned the divisional court. Instead it was said that according to the procedure under the Act of 2003 it was enough that an application for surrender was made. The District judge held that the application constituted a collateral attack on the decision of the Divisional Court and constituted an abuse of process.
45 On appeal, Moses L.J. upheld the decision of the District judge, but on somewhat different grounds. He held that in the unusual circumstances of this case the failure of the Italian authorities to seek to demonstrate that the conviction was compliant with Article 6 of the Convention or to otherwise address the matter of concern to the Divisional Court in the 1997 decision, was an abuse of the process. At paragraph 39 Moses L.J. stated the conclusion to which he had come:
“I conclude that the response to the ruling of the Divisional Court which amounts to an attempt to ignore it merely on the basis of the Framework Decision and it does amount to an abuse of process and I uphold the decision of the District judge on that basis.”
46 It might be noted that this decision while helpful to the appellant in this case in providing one further example of the exercise of an abuse of process jurisdiction in European arrest warrant cases, is nevertheless unhelpful in that the court did not hold that the fact that a decision refusing extradition had been made was itself a bar to a further application under the Act of 2003. Similarly, in Hamburg Public Prosecutors Office v. Altun, Ouseley J. acknowledged that where one warrant was defective and led to discharge, it could lawfully be replaced by another. It should also be said that while interesting and informative both these cases are decisions of first instance and cannot be said to establish any clearly discernible principle.
47 The Minister responded to these arguments by observing first that there may be some difficulty in reconciling a wide-ranging abuse of process of jurisdiction with the provisions of the Framework Decision and the European Arrest Warrant Act 2003, and the fact that those provisions set out the exclusive grounds for refusal of surrender. However, taking the argument at its height, it was submitted that it provided no satisfactory principle which could reconcile this case with the acknowledgement that a determination of an extradition request did not normally bar further application for surrender. The argument that the inclusion of the fleeing requirement was mistaken could not be said to render the subsequent proceedings an abuse of process. To rely on that mistake as bringing the case within the principle established in cases such as Vantive where a party deliberately failed to bring forward a case that could and should have been brought in the first proceedings, was to blur important distinctions of fact, law, and constitutional status. The requesting judicial authority here, being the Hungarian courts, had no responsibility whatsoever for the form of the Irish legislation. On the other hand, it was a legal obligation on the part of the Minister as a matter of domestic law (and arguably on the part of the Executive as a matter of international law) to make an application pursuant to the warrant once it was issued. The Oireachtas which enacted the law had however no responsibility for the manner in which a relevant application was made. To acknowledge as the Minister did, that the fleeing requirement should not have been included in the Act of 2003 was to do no more than to state the obvious in light of the decision of this Court that that requirement was something which was not required by the Framework Decision. To suggest that bringing the original application was wrongful ignored these important distinctions, and the fact that to have commenced proceedings which determined the legality of the request in accordance with law was both a performance of the Minister’s obligations in law, and itself a vindication of the right of a requested person such as Mr. Tobin to have the legality of that request determined. The suggestion that the bringing of an appeal against the High Court decision was the point of abuse was particularly unfair when a party making a decision on that appeal could have no idea that it might later be argued and determined that such a decision constituted an abuse of process. If there had been no appeal the same argument would still have been made on foot of the High Court determination. Indeed, even if the application had been withdrawn in the face of the points of objections raised on behalf of Mr. Tobin, that decision could equally have been subjected to criticism, and in any event might have given rise to an application by Mr. Tobin pursuant to the principle established in State (O’Callaghan) v. Ó hUadhaigh.
48 Counsel on behalf of the Minister also argued, that if the case could not be fitted easily with the Vantive Holdings analysis then the court was left with an argument dependent on an abuse of process jurisdiction which was no more than a generalised and unprincipled assertion of unfairness, impossible to reconcile with the acceptance that a prior proceeding was normally no bar to a subsequent and successful application for extradition or surrender. To apply such a non-specific concept of abuse in such circumstances, would risk introducing very considerable uncertainty, itself inconsistent with the requirement that law should be of general application, intelligible, and predictable. In my judgment it is sufficient to say that even assuming for the moment that the court’s jurisdiction to prevent abuse of process can apply in a context such as the present I am satisfied that the matters relied upon on behalf of Mr. Tobin cannot either individually or cumulatively constitute such abuse.
Separation of Powers
49 The second way in which counsel for Mr. Tobin formulated his argument on foot of the Supreme Court decision, may in part have been an attempt to avoid the difficulties posed by the force of the observations made on behalf of the Minister on the abuse of process point. Counsel argued that the repeal of s.10 of the Act of 2003 in so much as it removed the fleeing requirement, was at least in respect of Mr. Tobin, an unconstitutional interference with the separation of powers since it sought in effect to deprive Mr. Tobin of the fruits of the victory he had obtained by his proceedings in Tobin (No.1). This was as much interference with the judicial domain as the provisions of the Sinn Féin Funds Act 1947 which were struck down in Buckley v. Attorney General [1947] I.R. 67.
50 In this regard counsel placed particular reliance on the decision of this Court in the complex case of Pine Valley Developments v. Minister for the Environment [1987] I.R. 23. There, it may be recalled, Pine Valley and a number of individuals had purchased land to develop it with outline planning permission which had been granted on appeal by the Minister of Local Government in circumstances where the development contravened the provisions of the county council development plan. Dublin County Council in due course refused to grant full planning permission. Pine Valley sought and obtained an order of mandamus in the High Court. However that decision was overturned on appeal in part on the grounds that the power to grant outline planning permission for a development that was not within the development plan was ultra vires the Minister. This decision was not only disappointing to the plaintiffs, but also uncovered a significant flaw in planning permissions which had been granted prior to 1977 and before the jurisdiction conferred upon the Minister was transferred to An Bord Pleanála. The State moved therefore to remedy that lacuna by retrospective validating permissions granted by the Minister pursuant to s.6 of the Local Government Planning and Development Act 1982. However that provision was itself subject to a saver that it did not apply where such validation would conflict with the constitutional rights of any person. That provision was understood to apply to Pine Valley and the other plaintiffs since they had exercised their constitutional right to litigate, even though the result may not have been to their liking. Therefore the case proceeded on the basis that Pine Valley’s permission had not been validated by the Act of 1982.
51 Pine Valley and the other plaintiffs sued for damages in the diminution of the value of the land. The decision of the Supreme Court is important in addressing the question of the circumstances in which any liability in damages will arise for invalid administrative action. However, the plaintiffs also attacked their exclusion from the Act of 1982 as a discrimination contrary to Article 40.1 of the Constitution. Henchy J. rejected that argument in a very short passage at the end of this judgment at p.43:
Lardner J. who was sitting as a member of that Court went further, and at page 46 said of s.6 that:
“No doubt it was apprehended that section 6 subsection 1 of the Local Government (Planning and Development) Act 1982, might operate to reverse retrospectively this court’s decision and this might constitute an unwarrantable interference by the legislature in the decision of the courts. It seems probable that it was in these circumstances that section 6 subsection 2 was enacted with a view to avoiding such interference.”
Implicit in the decision in Pine Valley was, it was argued, is a validation of a view taken by the drafter of the Act, that this State could not by legislation affect the outcome of a final judicial decision, even when that outcome was harmful rather than beneficial to the citizen involved. This showed, it was argued, that legislation could not deprive a litigant of the benefit of a decision in a dispute which had been determined by the judicial branch of government.
52 It should be said however, that this issue was by no means the subject of elaborate scrutiny in the decision of the Supreme Court in Pine Valley which was principally directed towards the claim for damages. The point was a subsidiary one, and the reasoning itself is somewhat indirect since it flows from a view attributed to the drafter of the legislation, rather than being a specific decision on an issue that was itself the subject of detailed and focussed argument. I should say in passing, that I doubt for my part, that it would have been absolutely constitutionally impermissible to validate the planning permission granted in Pine Valley’s case. Indeed, it is noteworthy that subsequently Pine Valley succeeded in obtaining compensation in the European Court of Human Rights on the grounds that their exclusion from the validating provision was a breach of their rights under the Convention: see Pine Valley Developments Ltd. v. Ireland (1992) 14 E.H.R.R. 319. Nevertheless these portions of the decision in Pine Valley do provide some support for the appellant’s arguments, and suggest that a final decision by a court is a matter which carries a constitutional weight.
53 During the course of argument reference was made to a further case which, it was said by implication at least, supported the plaintiff’s arguments. In McMahon v. Leahy [1984] I.R. 525 the Supreme Court dealt with the consequences of the change in the law in the interpretation of the political offences exception which had been effected by the then recent decision in McGlinchey v. Wren [1982] I.R. 154. The effect of that decision was that persons who asserted that the offences in respect of which their extradition was sought were of a political nature, but who belonged to unlawful organisations whose aims included the overthrow of the system of government within the State, were not entitled to claim the benefit of the political offences exception. In McMahon’s case the applicant’s extradition was sought to Northern Ireland inter alia to face charges connected with an escape from lawful custody. He had escaped from the court house with four other prisoners and crossed the border. The four co-escapers had been arrested and been the subject of extradition applications under the law prior to McGlinchey v. Wren. It was established in the Supreme Court that in two of those actions the claim of the escaper to exemption from extradition on the ground of the political nature of the escape was not opposed, and in the case of the other two the claim was opposed, but unsuccessfully. Therefore none of the four had been extradited to Northern Ireland. The Supreme Court held, that notwithstanding the change in the law consequent on the decision in McGlinchey v Wren, it would be a breach of Mr. McMahon’s constitutional rights to extradite him to Northern Ireland because to do so would result in unequal treatment contrary to Article 40.1 because the four fellow escapers had been judicially held (with at least the tacit approval of the State) to be entitled to escape extradition on the ground of political offences exception.
54 For present purposes what is significant in McMahon v. Leahy is that the argument upon which the plaintiff succeeded in that case was itself dependent upon the assumption that four co-escapers could not have been successfully extradited notwithstanding the change in the law effected by McGlinchey v. Wren. If it had been possible to renew the application for their extradition it would not have been possible for the plaintiff in McMahon’s case to argue that his treatment was invidious discrimination. Therefore it can be said that McMahon’s case itself rests upon at least an assumption that notwithstanding a change in the law, it was not possible to revisit the question of the extradition of persons who had been the subject of a final binding judicial determination on a matter of substantive law. Of course to derive that conclusion from McMahon was to lay considerable weight on what was no more than an assumption, but this led to a more general discussion of the impact of changes of the law relating to surrender and extradition. Extradition has been a contentious topic especially in recent Irish history. It is noteworthy, that since the Extradition Act of 1965 there have been a number of significant changes to the extradition regime: first, the change in the interpretation of the political offence doctrine contained in McGlinchey v. Wren; second, the statutory limitation of that exception effected by the Extradition (European Convention on the Suppression of Terrorism) Act 1987 discussed in Sloan v. Culligan [1992] 1 I.R. 233, and more recently of course the regime introduced by the European Arrest Warrant Act 2003. While it was clear that in each case the new regime was capable of being applied to offences occurring before the change in the law, it did appear there was no recorded incidence, prior at least to the jurisprudence under the European Arrest Warrant Act 2003 of any attempt being made to make a further application for the extradition of a person whose extradition had been refused under the previous legal regime. These considerations led counsel to argue that the effect of a judicial determination, and perhaps a fortiori one arrived at after the process of appeal had been exhausted, was to create a judicial determination with which as a matter of high constitutional principle the Oireachtas could not interfere.
55 Counsel also sought to advance an argument with more general application, based on the finality of the decisions of the courts. There is no doubt that important values are invested in the finality of judicial proceedings and that some at least of these values are engaged in these proceedings. The stresses on individuals and costs in terms of time and energy, which are demanded by litigation are not themselves particularly dependent upon whether that litigation is considered to be on a procedural matter, or one of substance particularly when the outcome of the proceedings may well be the same. The significance which a legal system must accord to final determinations by a court, is perhaps best illustrated by the well known case of A. v. The Governor of Arbour Hill Prison [2006] 4 I.R. 88. That is a case in which this court was required to consider in some detail the consequences of a determination that legislation under which a person had been convicted was unconstitutional, and therefore, at least in legal theory, void and of no effect. The conclusion that the continued detention of persons on foot of final convictions arrived at on the basis of the now invalid law is perhaps the most vivid illustration of the importance the legal system accords to final judicial determinations. As Murray, C.J. pointed out that is also the position at common law at p.116:
“The common law has never conceived as consistent with any ordered administration of justice that previously decided and finally determined cases that should necessarily be set aside or reopened in the light of a new precedent …
Judicial decisions which set a precedent in law do have retrospective effect. First of all the case which decides the point applies it retrospectively in the case being decided because obviously the wrong being remedied occurred before the case was brought. A decision in principle applies retrospectively to all persons who, prior to this decision, suffer the same or similar wrong, whether as a result of the application of an invalid statute or otherwise, provided of course they are entitled to bring proceedings seeking the remedy in accordance with the ordinary rules of law, such as a statute of limitations. It will also apply to cases pending before the courts. That is to say that a judicial decision may be relied upon in matters or cases not yet finally determined. But the retrospective effect of a judicial decision is excluded from cases already finally determined. This is the common law position.”
56 Counsel sought to argue therefore that the perceived exception to the principle of res judicata in extradition matters, should be looked at more narrowly. While it was true that a decision based on a defect on the warrant was no bar to a subsequent issuing of a warrant and surrender on foot of it, that was not the case for the decision related to a principle of substantive law where the objection was based on a matter of law. That he said stood as a bar to any further application, at least unless the law was changed. That was the position in Mr. Tobin’s case. He had secured a determination, which would have precluded any surrender to Hungary while the provisions of the Act of 2003 remained in place. That was a binding and final decision and the Oireachtas could not interfere with it by subsequent legislation.
57 To this argument, counsel for the Minister responded that once again it proved too much. If it was correct that the Oireachtas could not deprive someone of the fruits of their judicial success, then at least in that respect there was no basis for distinguishing between judicial decisions on matters which were described as procedural, and those which were described as substantive. In each case there has been a final determination by a court on the issue, and the consequence was, that so long as the decision remained unchanged, a person could not be surrendered. If the Oireachtas was precluded from interfering with the final determination of a case, how was it, that an anonymous official issuing a fresh warrant in a member state could nevertheless achieve that result? Again, another well known case illustrates the point. In the State (Trimbole) v. Governor of Mountjoy Prison [1985] I.R. 550, the prosecutor was arrested under the Offences Against the State Act 1939, for the purposes of making him available for an extradition warrant to Australia. The government applied Part II of the Extradition Act to Australia on the same day, and later that day a provisional warrant pursuant to the Extradition Act 1965 was issued. Mr. Trimbole challenged the validity of his arrest and in what was a landmark case, both the High Court and the Supreme Court held that the arrest amounted to a deliberate and conscious violation of his constitutional rights and that he was entitled to be immediately released. The Supreme Court observed, pertinently for the purposes of this case, that the well recognised jurisdiction of the courts at common law to prevent abuse of their own process was amplified and reinforced by the decision of the courts within the framework of the Constitution. However, the Court also made it clear that this dramatic legal battle culminating as it did in a determination of the Supreme Court on a matter of major constitutional importance, did not preclude the possibility of future extradition. McCarthy J. recorded Mr. Trimbole’s counsel’s express concession that arrest on a fresh warrant or set of warrants would be valid. McCarthy J. concluded his judgment with the following observation at p.585:
“That is not to say that such an arrest might not be challenged; for myself, however, I would like to make it clear that the views I have expressed are not to be taken as any indication that the prosecutor is now seven weeks after his release free from extradition from this country.”
58 Counsel for the Minister laid heavy reliance on the decision of the High Court in Howard v. The Commissioner for Public Works [1994] 3 I.R. 394. In the early 1990’s there had been considerable controversy about the State’s plans to commence the construction of visitors’ centres in areas of scenic and environmental importance. One such proposal was a visitors’ centre in the Burren, County Clare. Concerned residents and others commenced proceedings to restrain the construction of the visitors centre. One issue raised, upon which they succeeded in the High Court, was their contention that The Commissioners for Public Works had no power to develop such a centre and accordingly the development was ultra vires the Commissioners. (See Howard v. The Commissioners for Public Works [1994] 1 I.R. 101). Six days after the judgment was delivered by Costello J. the Oireachtas enacted the State Authorities (Development and Management) Act 1993. That Act provided by s.2 that a State authority “shall have, and been deemed always to have had, power to carry out and procure the carrying out of development …”. The Commissioners then sought to restart the works at the Burren Visitors Centre.
59 The plaintiffs who had been successful in Howard v. The Commissioners for Public Works (No. 1) commenced proceedings seeking a declaration that by virtue of the judgment and order of the High Court already obtained by them the Commissioners had no power whether by virtue of the Act of 1993 or otherwise to proceed with the construction of the visitors centre and alternatively a declaration that the section was invalid having regard to the provisions of the Constitution of Ireland. Lynch J. refused the relief sought. He held that the Oireachtas did not have power to alter or reverse the determination of the High Court and that accordingly the Act must at least in application to the Commissioners power to carry out the particular proposed development, be read as if the words “and be deemed always to have had” were omitted from the Act. However he held that while an unconstitutional Act could not be retrospectively validated by legislation there was no reason why the Oireachtas could not now confer upon the Commissioners the powers which it was determined by the High Court that it lacked and accordingly that the Act was not an interference with the constitutional separation of powers, and the Commissioners were fully entitled to build the visitors centre in the contested location.
60 Counsel for the Minister urged on the Court that this case aptly illustrated the correct distinction. It was impermissible to seek to reverse the decision actually made. The plaintiffs had the benefit of the declaration and injunction for so long as the law remained unchanged, and that consequence could not be altered by legislation deeming the Commissioners to have had the powers which they had been found to lack. But the existence of that determination did not preclude an alteration of the law for the future. By analogy therefore, for so long as the law remained unchanged, Mr. Tobin was entitled to the benefit of the determination of the Supreme Court, which during that time was a complete bar to his surrender under the Act of 2003. The legal position which obtained during that period could not be altered by subsequent legislation. However, once the law was changed prospectively, it was said there was no bar to a fresh application to seek Mr. Tobin’s surrender.
61 I am satisfied that the decision of the Court in Tobin (No.1) does not mean that an amendment to s.10 removing the fleeing requirement and making it clear that Mr. Tobin and anyone else who had successfully relied on it could now be surrendered would be an unconstitutional interference with the separation of powers either generally or in respect of Mr. Tobin. Nor do I consider that to surrender Mr. Tobin would necessarily offend the separation of powers simply by virtue of the fact that Tobin (No. 1) was decided. The Act of 2009 did not in its terms seek to overturn the decision in Tobin (No.1): that decision controlled Mr. Tobin’s legal situation at least between July, 2007 and 27th August, 2009, when the Act of 2009 came into force. Nothing in the Act of 2009 affects the legal position during that period. To hold that Mr. Tobin could never be the subject of a request for surrender would be to treat a successful decision in his favour as creating almost a permanent immunity, and would run counter to the established case law that there can be repeated applications for extradition and/or surrender. Cases such as McMahon v. Leahy and Pine Valley are consistent perhaps with a view that the determination of a court of competent jurisdiction is a matter of some legal significance, but they fall well short of establishing a principle that success on a point of law brings with it a form of permanent immunity from surrender.
Section 27 of the Interpretation Act 2005
62 The third and related basis upon which it was argued that the decision in Tobin (No.1) had the effect of preventing his surrender under the amended provisions of the Act of 2003, was by reference to s.27 of the Interpretation Act 2005, provides that:
“(1) Where an enactment is repealed the repeal does not –
…
(c) effect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment …”
This provision does not stand alone. It must be read alongside the provisions of s.4 of the Act of 2005 which make it clear that the presumptions and rules set out under that Act apply to any 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”. Accordingly s.27(1)(c) creates a presumption against the removal of any right, privilege, obligation or liability, which presumption can be rebutted by demonstrating that the Oireachtas did indeed intend to remove the right, privilege, or obligation in question.
63 It was argued that the decision of the Supreme Court refusing Mr. Tobin’s surrender in Tobin (No.1) if not an absolute bar to surrender, was certainly a right acquired, accrued or incurred under the provisions of the Act of 2003, and the amendment effected by the Act of 2009 did not demonstrate any clear intention to remove that right from Mr. Tobin. This is a noticeably narrower claim than that advanced under the previous two headings. On this argument the effect of the decision in Mr. Tobin’s favour is not an absolute bar to any subsequent extradition but rather merely conferred a right which had not been removed by clear words under the Act of 2009.
64 It is quite clear that the language of s.6(c)(ii) of the Act of 2009 was a legislative response to the decision in Tobin (No.1). It is equally clear that language used is of general application and does not specifically address Mr. Tobin’s very particular, if not indeed unique situation in that he is, it appears, the only person in Ireland who successfully resisted surrender on the grounds that he had not “fled” and whose claim had been the subject of a determination by the Superior Courts. Indeed counsel for the Minister was understandably anxious to reject any suggestion that the amendment was targeted at Mr. Tobin personally. Had that been the case then different and no less important constitutional issues would arise. But this only illustrates the narrow line the legislation had to walk. Accordingly it was forcefully submitted on behalf of the Minister that the provision was quite general in its formulation and applied equally to each and every warrant issued after the Act of 2009 came into force. However, it followed as a consequence of this argument, that it could not be suggested that if the outcome of Tobin (No.1) could be said to have vested a right in Mr. Tobin within the meaning of s.27 of the Interpretation Act 2005, that the amending section could be said to contain any clear words or embody an intention to remove that specific right. The fundamental question therefore was whether indeed, the outcome of Tobin (No.1) could be said to be a right within the meaning of s.27, or as it is sometimes referred to in the case law, a vested right.
65 This is an issue which was considered in the recent decision of this Court in Minister for Justice Equality and Law Reform v. Bailey (Unreported, Supreme Court, 1st March, 2012). In that case it will be recalled, Mr. Bailey’s surrender was sought by French authorities in respect of an offence committed in Ireland in 1996, and in respect of which the D.P.P. had decided on a number of occasions between 1997 and 2001, not to commence any prosecution in Ireland. Under the terms of s.42(c) of the Act of 2003 this was a ground for refusal of surrender. However s.42(c) was repealed by s.83 of the Criminal Justice (Terrorist Offences) Act 2005. The relevant request for surrender was made in 2011, long after the repeal of s.42(c). It was however argued on Mr. Bailey’s behalf that the existence of s.42(c) during the time in which it was enforced, conferred upon Mr. Bailey (being a person in respect of whom the DPP had made a decision not to prosecute) a right not to be surrendered and that the subsequent repeal of s.42(c) was not to be construed as affecting or removing that right. This Court concluded unanimously, following in this regard the reasoning in Sloan v. Culligan [1992] 1 I.R. 223 that the mere existence of legislation which could be invoked to resist surrender if a request was made at a particular time did not itself constitute a vested right or acquired right, so as to trigger the presumption embodied in s.27(1)(c) of the Interpretation Act 2005.
66 In the judgment I delivered in that case I observed that the provisions of s.27(1)(c) of the Act of 2005 were in a form which could be traced back at least as far as the Interpretation Act 1889, and that a considerable body of case law had built up on the interpretation to be applied to those provisions. I referred to the judgment of Lord Rodger in the United Kingdom House of Lords in the case of Wilson v. First County Trust Limited (No.2) [2004] 1 A.C. 816, and the decision of the Court of Appeal of England and Wales in Chief Adjudication Officer v. Maguire [1999] 1 W.L.R. 1778. It is apparent from these cases that while there has been extensive consideration of the presumption now contained in s.27(1)(c), that case law is not necessarily easy to reconcile. In particular, as Lord Rodger observed, at paragraph 196 of his judgment, “The courts have tried, without conspicuous success, to define what is meant by “vested rights” for this purpose”. Indeed Lord Roger observed that the difficulty in reconciling the case law lent some weight to the criticism that the reasoning in those cases was essentially circular and, that courts were inclined to attach the label “vested” to those rights which they conclude should be protected from the effect of the new legislation. I suggested that there seemed to be a dual inquiry, first whether it appeared at the time the right was granted that it was intended to be temporary or more permanent; and second, a closely related inquiry as to whether it was unfair now to remove it even for future events. Due to the assistance the court was able to derive from the reasoning in the decision in Sloan v Culligan, it was not necessary to pursue that issue further in Bailey. It does however arise on this appeal.
67 It is important to remind ourselves that we are dealing with a right at common law, and no issue of any constitutionally protected right arises. In that sense, a right can be said to be the entitlement of a person to do something which is not itself specifically prohibited, and which a court will enforce as a matter of entitlement and not merely as a matter of discretion. To some extent therefore it can be said much legislation interferes with existing rights in that sense, and indeed is intended to do so. In identifying what can be said to be “vested” rights which trigger the presumption in s.27 there is I think much useful guidance to be gained in Bennion, Statutory Interpretation (4th Ed. Butterworths, 2002) which states that “the right must have become in some way vested by the date of a repeal, i.e. it must not have been a mere right to take advantage of the enactment now repealed”. A similar point was made in the 9th edition of Craies on Legislation (Sweet & Maxwell 2008) at para. 14.4.12:-
“The notion of a right accrued in s.16(1)(c) requires a little exposition. In particular the saving does not apply to a mere right to take advantage of a repealed enactment (clearly since that would deprive the notion of a repeal of much of its obvious significance). Something must have been done or occurred to cause of a particular right to accrue under a repealed enactment.”
68 The outcome of the Bailey case on this point neatly illustrated the distinction made in these texts. Mr. Bailey’s right during the currency of the Act of 2003 could properly be described as a “mere right to take advantage of a repealed enactment”. In his case nothing had been done to cause a particular right to accrue under that enactment. The question then raised on this appeal was whether the decision of the Supreme Court in favour of Mr. Tobin in Tobin (No.1) was something which had been done or occurred which caused a particular right to accrue under and by virtue of the repealed enactment. Counsel on behalf of Mr. Tobin asserted that it did. The right he identified was the right to resist surrender to Hungary in respect of these offences and this sentence for so long as the Act remained in force. On behalf of the Minister it was said that if the right was formulated as a right to resist surrender while the Act remained in force, then the Act of 2009 did not affect that right since it was an inherently limited right i.e. a right only for so long as the law remained in the form contained in the Act of 2003. To this counsel for Mr. Tobin responded that this for once was an argument on behalf of the Minister which itself proved too much. It begged the question in this case, since in all cases to which s.27 applies, the right in question arises under legislation which is subsequently repealed. Every such right can be said to be inherently limited, since it can be removed by statute: the question is whether it was intended to remove the right intended. The purpose of s.27 is to deal with the consequence of repeal of the underlying legislation, and it did so by requiring that a clear intention should be demonstrated to remove the right in question. Whether such intention was apparent in the general words of the Act of 2009 was the issue in this case.
Decision
69 In my view this case cannot be decided by an appeal to some sweeping constitutional principle of uncertain extent, or invocations of generalised statements of law. In particular the statement that “res judicata is not applicable to extradition” is one that while perhaps unremarkable as a rule of thumb, requires closer scrutiny. It suggests on the one hand that the application of the law in relation to extradition is an exception to a general rule and ought therefore to be narrowly construed. In fact, it may be that there is nothing unique about the law of extradition in this regard. The feature identified – that a fresh warrant can always be issued and executed after a court has refused to enforce an earlier warrant on the grounds of some defect – is common to any warrant whether for arrest or for search. It is a feature therefore of the law of warrants rather than the law of extradition. It is relatively unusual that the validity of a search warrant would be considered outside the context of an argument as to the admissibility of evidence in a trial, but where it is such as in the case of Simple Imports Ltd. v. Revenue Commissioners [2000] 2 I.R. 243, there seems little doubt that if a new warrant was issued, and the material was still available, it could be seized on foot of the new warrant. It is a common place of the law of habeas corpus and Article 40.4 inquiries, that warrants or arrests may be held invalid, and a person released, but arrangements can lawfully be put in place to effect an immediate re-arrest. In the somewhat different circumstances of Curtin v Dáil Éireann [2006] 2 I.R. 556 it was held that where a computer had been seized on foot of a search warrant unlawfully and in breach of the applicant’s constitutional rights, the evidence was declared inadmissible at the trial and he was acquitted on those charges and could not be prosecuted again. However, a subsequent direction given by an Oireachtas committee for production of the computer was held to be valid, Murray C.J. observing at page 166, “If the computer could have been and had been returned to his possession it could not be said that the exclusionary rule means that it was forever immune, in all circumstances, from a lawful seizure or order for production”. Therefore, whether the determination that a warrant is invalid has a temporary or permanent consequence depends upon other factors such as whether it occurs in the context of a trial and results in an acquittal, or whether it is or remains possible to issue and execute a fresh and valid warrant.
70 These considerations lead me to the conclusion that it is not only desirable, but also perhaps particularly appropriate, to consider the narrow argument advanced in relation to s.27 of the Interpretation Act 2005 . The fundamental issue here is whether the outcome of Tobin (No.1) is a “right” and more importantly a “vested right” so that it is proper to presume that the Oireachtas did not intend to interfere with that right unless the contrary intention clearly appears either from the text of amending legislation, or its context, or both. On this argument, it is not necessary to go so far as to hold that the decision in Tobin (No. 1) could not lawfully have been interfered with by subsequent legislation, or indeed that there had been conduct which amounted to an abuse of the process: it is sufficient that Mr. Tobin should be in a particular class of person who was entitled to have his case the subject of specific consideration by any amending legislation. As the quotation from Craies indicates, the question is whether something had happened which means that Mr. Tobin’s entitlement was something more than to take advantage of the repealed legislation. In this regard, his case can usefully be contrasted with the decisions in Sloan v. Culligan and in the recent case of MJELR v. Bailey. In each of those cases, it was determined in effect, that nothing had happened during the currency of the repealed legislation to give the individuals concerned any vested right which required to be specifically addressed to any subsequent repealing legislation. Here however something has happened. There was an application for surrender hearing and a determination both by the High Court and this Court on appeal. The question therefore is whether that can be said to be “something” for the purpose of the law so as to trigger the provisions of s.27.
71 It is here that the discussion on abuse of the process and separation of powers becomes helpful. I have no doubt that a full hearing and determination of a request for surrender is certainly something. I think it can also be properly said that the outcome of Tobin (No. 1) was to confer or create a right. In the aftermath of Tobin (No.1) Mr. Tobin could not have been extradited or surrendered to Hungary in respect of this sentence, so long as Irish law retained the fleeing requirement. That was a right, and not a privilege. For example, if Mr. Tobin had been arrested immediately after the Supreme Court decision on foot of a warrant seeking his surrender to Hungary to serve this sentence, I consider it arguable he would have been entitled to seek release from custody under Article 40.4 without having to proceed to a hearing in the High Court or Supreme Court on the warrant. Certainly he would have to have succeeded in any hearing on the warrant. His entitlement not to be surrendered having been conclusively determined by the existing law, then I think it could be said he would have a right to be released, and certainly a right to resist surrender, which once established a court would be bound to uphold. Indeed, as the discussion in A. v. The Governor of Arbour Hill Prison shows, such a final determination would be proof against even a change in the common law in the shape perhaps of the subsequent Supreme Court determination which overturned the holding in Tobin (No.1) and determined that a person leaving in similar circumstances would be held to have fled. Such a determination might overturn the law established in Tobin (No.1) but would not effect the outcome of Mr. Tobin’s own case. The final determination of his case, even if subsequently considered erroneous in law, would still be a bar to further proceedings. Indeed, it seems that even if the fleeing requirement was held to be repugnant to the Constitution and therefore was prima facie never a part of the legislation, the final determination of Mr. Tobin’s case would, as I apprehend it, still act to prevent surrender just as surely as the conviction in the case of Mr. A. prevented his release from imprisonment notwithstanding the finding that the Act creating the offence of which he was convicted was, at least in one respect, inconsistent with the Constitution and deemed not to have survived the coming into force of the Constitution.
72 It is in this context that some of the fragmentary pieces of evidence amassed to support the different and more expansive arguments advanced, may have their best effect. The fact, if it be so, that notwithstanding two significant changes of the law relating to political offences, that no person who had been previously determined to be entitled to the political offence defence was subsequently the subject of any application for extradition, is itself at least suggestive of the high value attached to a final determination by a court on the state of the then existing law so that it was then not necessarily affected by a subsequent change in legislation which on its face was of general application. Similarly the decision in McMahon v. Leahy seems to proceed on the implicit assumption that the co-accused could not themselves have been the subject of a renewed application for surrender. Finally, the unusual shape of the legislation in issue in Pine Valley appears to have been dictated by a view of the significance of a determination, even in that case an adverse determination, by the court. These separate instances all support the conclusion that when a binding judicial determination is made by reference to the law then in force, something of legal significance happens and a right is acquired or accrues within the meaning of s.27 Accordingly, I have no doubt that what Mr. Tobin had acquired as a result of the decision in Tobin (No.1) and can properly be described as a right acquired or accrued for the purposes of s.21 of the Interpretation Act 2005. This is consistent with the decision of the Privy Council for example in the important case of Abbot v. The Minister for Lands [1895] A.C. 425, where Lord Herschell, L.C. stated at p.430:
“It may be, as Windeyer, J. observes, that the power to take advantage of an enactment may without impropriety be termed a “right”. But the question is whether it is a “right accrued” within the meaning of the enactment which has to be construed. Their lordships think not, and they are confirming this opinion by the fact that the words relied on are found in conjunction with the words “obligation incurred or imposed”. They think that the mere right (assuming it is properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed to right a “right accrued” within the meaning of the enactment”. (Emphasis added)
Although here the act done to avail Mr. Tobin of a right is not done by Mr. Tobin himself, but rather is a consequence of proceedings in which he was a reluctant participant, the conclusion is in my view the same, and if anything stronger. By the same token it is useful to consider the status of the High Courts rejection in Tobin (No.1) of a number of grounds advanced by Mr. Tobin, such as lack of correspondence. While it was not argued on this appeal, (perhaps for reasons of prudence as much as legal theory) it would seem that it would be arguable that those determinations created a res judicata against Mr. Tobin on those issues. In the circumstances, I have no doubt that the determination of Tobin (No.1) was an event by virtue of which a right was acquired or accrued.
73 That however is not the end of the inquiry. The right that Mr. Tobin had acquired or which had accrued after Tobin (No.1) was a right not to be surrendered. However, that right could be taken away by a change in the law. Here the law had changed, and the specific question which had to be addressed, and for which s.27 of the Interpretation Act 2005 provides guidance, is whether that change in the law was intended to merely remedy prospectively the legal flaw identified by the decision in Tobin, or to go further and ensure Mr. Tobin himself was to be subject to the possibility of future surrender for the offences which had been the subject of the request in Tobin (No.1).
74 The mere existence of a right does not preclude statutory interference with that right. Indeed, it may be relatively easy to infer such an intention in many cases. As Lord Rodger observed in Wilson v. First County Trust the presumption is a weak one and easily rebutted. All that the presumption requires is that the intention clearly appear either from the text of the specific words used, or from the context of the amending legislation. Thus to take for example a case of a company which had successfully established that its business of ripening fruit was manufacturing for the purposes of the tax code. A subsequent amendment of general application would normally be held to apply just as much to that company as to all others. This would not require any specific words in the section. It would arguably follow from the structure of the Finance Acts which introduce a new tax code each year, the strong presumption that taxation provisions are of general application, and the fact that there is a fresh collection of tax each year. By the same token the fact that a decision such as that in Howard related not so much to the rights of the plaintiff, as to the powers of the defendants, would make it relatively easy to assume that any general amendment of the powers of a public body would be as applicable in respect of developments objected to by individuals who had succeeded in the previous case, just as much as to any other developments. Indeed the absurdity that would ensue if the only place in Ireland where the Commissioners of Public Works could not carry out works would be the very specific site involved in that case (and then only in respect of the individual plaintiffs) would make it plain that an amendment in general terms would operate prospectively, to give to the Commissioners powers to carry out works in relation to that site. A slightly different approach is illustrated by the decision in L.M. v. Devally [1997] 2 I.L.R.M. 369 where Carroll J. held that the immunity under future proceedings acquired under s.10(4) of the Illegitimate Children (Affiliation) Orders Act 1930, only existed in respect of further proceedings under that Act, and accordingly was not carried over by virtue of the provisions of s.21(1)(c) of the Interpretation Act 1937.
75 It may however be the case that in a case involving personal liberty greater care, and specificity, may be required. But it seems entirely consistent with principle, and indeed with the respect which is owed by one organ of the State to the other, to inquire first if an advertent decision is made by the Oireachtas to ensure that Mr. Tobin (and anyone else who had succeed on the fled point) was to be surrendered notwithstanding the general reluctance, which both the Oireachtas and the Executive have shown as a matter of history to interfere with the outcome of final decisions of the courts in a particular case, even when altering the general law determined in that case. The very fact that the Minister properly insisted on this appeal that the legislation was not targeted at Mr. Tobin personally, illustrates the sensitivity of the issues involved, and the fineness of the constitutional distinction in issue. Once it is recognised that at the very least different considerations apply in the case of someone such as Mr. Tobin, than those which arise in the case of another person who has not been the subject of any determination, then it is an entirely legitimate question to ask whether the Oireachtas intended that Mr. Tobin (and anyone in a similar situation) should be exposed to a further application for surrender. It is for the Oireachtas in the first place to decide whether it is fair in all the circumstances that the new rule should also apply to a person such as Mr Tobin, before any court considers any question of constitutional fairness. In this case of the Act of 2009, language of general application is used. No differentiation is made between the different classes of person who might conceivably be subject to the now amended legislation. In such circumstances it cannot be said that a specific intention can be discerned from the legislation that, while eschewing any intention to target Mr. Tobin personally, it was intended that Mr. Tobin should be subject to surrender. In such circumstances it is the proper application of the presumption contained in s.27(1)(c) of the Interpretation Act 2005, (itself a recognition of the proper interaction of the different organs of government in the making and interpretation of legislation), to hold that it has not been demonstrated that the Oireachtas has expressed any clear intention that the right which was acquired by or accrued to Mr. Tobin on the decision in Tobin (No.1) was to be removed.
Conforming Interpretation
76 It remains to consider whether the result arrived at by the application of domestic principles of interpretation is affected by the obligation of conforming interpretation, which this Court must apply since this the Irish legislation implementing a Framework Decision. The manner in which this obligation is applied, and the limitations upon it have been addressed most recently in the judgment of Fennelly J. in MJELR v Bailey [2012] IESC 16 at paragraphs at paragraphs 52-67 of his judgment. As is so clearly set out there, the obligation is not to interpret a domestic provision by reference to an asserted general purpose of the Framework Decision, but rather to consider the purpose of the specific provision of the Decision sought to be implemented by the section or sections of the domestic act which is to be interpreted. Here section 6(c)(ii) of the Act of 2009 was introduced to bring Irish law into conformity with the Framework Decision. However that obligation, and the interpretive obligation is a general one, it is to ensure that the domestic law conforms to the European Framework. The issue here is not general but specific: in so amending the Irish law did the Oireachtas intend that anyone who had succeeded in resisting surrender on the now repealed provision should be subject to surrender? The Framework Decision says nothing about that issue, or indeed about the status of a prior judicial refusal. Accordingly there is no provision of the Framework Decision embodying a purpose to which section 6(c)(ii) must be interested conformably.
77 Reference was made in the course of the judgment of the High Court and in argument in this Court to the decision in M.J.E.L.R. v. Aamand [2006] IEHC 382, in which Peart J. held that the fact that the Respondent there had successfully resisted extradition under the Extradition Act 1965 ([1995] 1 ILRM 1) did not bar his surrender under the regime created by the Act of 2003. However that case observation was strictly speaking obiter since the respondent in that case was successful in resisting surrender on another ground, and furthermore there was no appeal and therefore no consideration of the issue in this court. However it should be observed that the subject matter of that decision differs from the issue in this case. Here we are concerned with a single amending provision in the Act of 2009. Aamand concerned the interpretation of the entire regime introduced by the Act of 2003 Act. It follows from the principle of interpretation applied in this case that there can be no a priori rule that any subsequent legislative change must render persons available for surrender, any more than there is a rule that a prior judicial refusal of surrender immunises a person for all time. It is a question, at least in the first place, of the interpretation to be applied to each piece of legislation and the intention of the Oireachtas as expressed therein or to be deduced therefrom.
78 It is apparent that the point from which I differ from some of my colleagues is a narrow question of whether a sufficient intention appears from the Act of 2009 that Mr. Tobin, and anyone who had succeeded on the same point, should nevertheless be subject to surrender. Since the Act of 2009 amendment is expressed in entirely general terms I accept that that is a matter of interpretation, and at bottom, a matter of impression. I fully understand the basis upon which other members of the Court have to come to a different conclusion albeit, that I respectfully consider that the reasoning of the majority does not significantly explain the significance of cases such as State (O’Callaghan) v. O’hUadhaigh, Pine Valley and McMahon v. Leahy and others. I conclude that the decision in Tobin (No.1) vested in Mr. Tobin a right which the provisions of s.6 of the Act of 2009 have not shown a clear intention to remove or alter, and accordingly I would allow the appeal on this narrow ground.