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Bolger v. O'Toole [2000] IEHC 125 (8th June, 2000)

THE HIGH COURT

JUDICIAL REVIEW

Record No. 419 of 1998

BETWEEN

PETER BOLGER

APPLICANT

AND

PATRICK O’TOOLE, THE CRIMINAL ASSETS BUREAU, LONDON

METROPOLITAN POLICE COMMISSIONER, DISTRICT JUSTICE

BRIAN KIRBY, THE DISTRICT COURT AND PATRICK BYRNE

RESPONDENTS

Judgment of Mr. Justice O’Neill delivered the 8th day of June, 2000.

1. These Judicial Review proceedings arise out of the arrest of the Applicant in the early hours of Tuesday, 20th October, 1998 on fourteen extradition warrants obtained on the 25th June, 1998 in Bow Street Magistrates Court, London by Detective Constable Malcolm Jennings. These warrants were endorsed by the First named Respondent, an Assistant Commissioner of the Garda Siochana on the 19th October, 1998. The warrants state that on the 3rd April, 1995 during the course of the trial of the Applicant on certain charges at Southwark Crown Court, London, the Applicant failed to surrender as required to the custody of the said Court. On the 6th and 7th April, 1995 the Applicant was convicted in his absence at Southwark Crown Court of fourteen offences, namely, ten offences of theft, three offences of forgery and one offence of fraudulent trading. In respect of the ten offences of theft and the offence of fraudulent trading the Applicant was sentenced in his absence by the Court to a term of imprisonment for two years upon each, to run concurrently with each other. In respect of the three offences of forgery the Applicant was sentenced in his absence to a term of imprisonment of twelve months upon each to run concurrently with each other, but to run consecutively to the aforementioned concurrent terms of two years imprisonment.

2. This is the second attempt to extradite the Applicant on foot of extradition warrants.

3. The events surrounding the first attempt are as follows:-

4. On the 21st December, 1995 Detective Constable Jennings obtained arrest warrants from Bow Street’s Magistrates Court with a view to securing the Applicant’s extradition to England. The warrants were endorsed by an Assistant Commissioner of the Garda Siochana on the 15th February, 1996 and the Applicant was arrested under them and brought before the Dublin Metropolitan District Court with a view to his extradition being ordered under Part 3 of the Extradition Act, 1965.

5. The attempt to extradite the Applicant on foot of the warrants obtained by Detective Constable Jennings on the 25th June, 1998 has provoked much litigation on the part of the Applicant. The present matters come before the Court as results of the Order of O’Higgins J dated 2nd November, 1998 whereby he granted leave to the Applicant to apply for Judicial Review on one ground, that of res judicata and refused it on another ground, namely, that the attempted extradition was unlawful and/or an abuse of process being the result of a conspiracy of officers of the Second named Respondent (Criminal Assets Bureau) and Detective Constable Jennings, inter alia, to frustrate and impede his ability to defend himself in certain proceedings between the Applicant and the Criminal Assets Bureau.

6. The operative part of the Order of O’Higgins J. granting leave to apply for Judicial Review was in the following terms:-

“1. That the Applicant have leave to apply by way of application for Judicial Review for an Order of Prohibition against District Justice Brian Kirby or any other Judge of the Dublin Metropolitan District Court and the District Court forbidding them to take any further steps in the extradition proceedings initiated by D.C. Jennings on foot of warrants obtained on the 25th June, 1998 in Bow Street Magistrates Court on the grounds that the attempted extradition of the Applicant on foot of the said warrants which were indorsed by the First named Respondent on the 19th October, 1998 were unlawful being an attempt at retrial of the previous extradition application.”

7. Following upon the making of the said Order on 2nd November, 1998 the Applicant appealed against that part of the Judgment and Order of O’Higgins J which refused leave to the Applicant to apply for Judicial Review on the aforesaid ground of engaging in a conspiracy constituting an abuse of the process of the Court. On the 8th July, 1999 Barrington J in an ex tempore judgment with which the other members of the Supreme Court agreed, dismissed the appeal and affirmed the Order of O’Higgins J.

8. Following upon same, the Applicant served a Notice of Motion seeking the relief in respect of which O’Higgins J gave leave, but curiously the Notice of Motion, notwithstanding that a variety of ancillary reliefs are sought in it, does not expressly or in any specific way set out the main relief in respect of which leave was obtained. I do not propose to attach any significance to this procedural deficiency.

9. Paragraphs 1, 6, 8 and 9 of the Applicant's Statement of Grounds appear to bear directly and peripherally on the matter in respect of which leave was granted.

10. These read as follows:-

“1. In 1996, extradition proceedings initiated on behalf of the Third named Respondent acting through Detective Constable Jennings against the Applicant were dismissed in the Dublin Metropolitan District Court following a lengthy hearing. The garda authorities were ordered by the District Court dismissing the application to pay to the Applicant, Peter Bolger, £3,500 towards his costs of the extradition hearing. That decision was never appealed by the garda authorities despite the terms of the said Order have failed, neglect and refused to make the said payments of £3,500 and are currently in breach of the terms and conditions of the said Order.”

“6. The application by Detective Constable Jennings for the issue of the warrants from Bow Street Magistrates Courts upon which the present extradition application is found and was and is an abuse of the process of that Court in that inter alia the Magistrate to whom the application was made was misled by having concealed from him the fact that the previous extradition attempt in respect of the very same matters had been dismissed with costs by the District Court and that the Sixth named Respondent his servants or agents who propounded the application pursuant to the provisions of the Extradition Act were in default of the terms of the Order dismissing the extradition application. These matters ought to have been disclosed and not concealed from the Magistrate to whom the application for the warrants was made.”

“8. As a matter of law once there has been a full judicial hearing in and determination by the District Court (or equivalent Court) of an extradition application, the matter becomes res judicata and cannot be revived.”

11. The Applicant swore on the 2nd November, 1998 a lengthy Affidavit in support of his application which does not contain the usual averment verifying the contents of the Statement of Grounds. Out of an Affidavit of some 24 paragraphs, only paragraphs 2, 3, 4, 5, 6, 7, 8 and 21 have any relevance to the present application.

12. These read as follows:-

“CONVICTIONS;

2. On the 6th and 7th of April, 1995 I was convicted in my absence at Southwark Crown Court of several offences. I beg to refer to a true copy of the extradition warrants exhibited therein which contain the details of our exhibit ‘A’ upon which I signed by name prior to surrender hereof.

3. The circumstances of those convictions being made in absentia will be set out on Affidavit herein in due course.

4. I have engaged solicitors and counsel to prepare an appeal and the present position in that regard will be set out in affidavit in due course.

FAILED EXTRADITION ATTEMPT

5. On the 25th December, 1995 the police constable who was charged with the prosecution that led to the aforesaid convictions, Detective Constable Andrew Malcolm Jennings of the ‘MET’ Fraud Department obtained arrest warrants from Bow Street Magistrate Court with a view to securing my extradition to England.

6. These warrants were duly indorsed in Dublin by the Assistant Commissioner of An Garda Siochana and I was arrested under them and brought before the Dublin Metropolitan District Court, with a view to my extradition being ordered under Part 3 of the Extradition Act, 1965.

7. In the event the District Judge refused to order my extradition, as sought, and awarded me costs against the requesting authorities. That Order was not appealed to the High Court, although it would seem that there was no good reason why it could not have been appealed. Nor, indeed were the costs awarded paid.

8. Neither I nor my solicitor heard any more about extradition in respect of those matters and we were of the view that insofar as extradition was concerned the file was closed and no further steps in that regard would be taken.”

“21. On the 25th June last Detective Inspector Jennings applied in Bow Street Magistrate Court for warrants to secure my extradition from Ireland in respect of these very same matters. It seems very likely that the magistrate in question was not informed of the earlier failed extradition attempt and if that is indeed so and is confirmed in the discovery that will be sought herein, the magistrate would have been grievously misled and the warrants would have been obtained on foot of a highly material misrepresentation. I beg to refer to a true copy of the revised warrants marked exhibit ‘E’ upon which I signed by name prior to the swearing here.”

13. In the Statement of Opposition of the Sixth named Respondent the following inter alia is said at paragraphs 2 and 5:-

“2. The extradition proceedings initiated on behalf of the Third named Respondent before the Dublin Metropolitan District Court in 1996 were not dismissed. In the course of the said proceedings it was argued on behalf of the Applicant that the warrants upon which his extradition was sought were defective upon two grounds: firstly, they did not specify the location of the offences; and secondly, they asserted that the Applicant was unlawfully at large from Brixton prison when the evidence given was that he had absconded while on bail and had not been in Brixton prison. At the conclusion of the proceedings by reason of these defects the learned Judge of the District Court was not satisfied that the Applicant should be extradited and, accordingly, made an Order discharging the Applicant pursuant to the provisions of Section 47 of the Extradition Act, 1965.

5. It is denied that as a matter of law once there has been a full judicial hearing in and determination by the District Court (or equivalent Court) of an extradition application the matter becomes res judicata and cannot be revived. It was always open to the Applicant to make a fresh application. In the alternative where there are formal defects in an extradition application such as the respondent is discharged as occurred in this case there is no bar to the application being revived. In the extradition application before the learned Judge of the District in 1996 there were alleged defects in the warrants and the Court was not satisfied that those defects were cured by evidence before the Court. The warrants obtained on the 25th June, 1998 upon which the fresh application for extradition is based do not contain the defects upon which the previous application was refused and, in the premises, are unaffected by the decision of the learned District Court Judge to discharge the Applicant in 1996.”

14. An Affidavit was sworn by one Liam Mulholland on the 5th of March, 1999 for the purposes of verifying the facts relied upon in the Statement of Opposition. Mr. Mulholland as is deposed to in paragraph 5 of that Affidavit was the Solicitor acting on behalf of the Garda Siochana and the Attorney General in the application for extradition in this matter which came before Judge Windle in the District Court on the 23rd May, 1996.

15. Mr. Mulholland says the following at paragraphs 5, 6, 7 and 8 of his Affidavit:-

“5. I was the Solicitor acting on behalf of the Garda Siochana and Attorney General in the application which came before Judge Windle. Its first hearing date was the 23rd May, 1996 when two issues were brought up by the Counsel on behalf of Mr. Bolger. These were: firstly, that the warrants were invalid in that they did not specify the location of the offence; and secondly, that the recitals in the warrant said that Peter Bolger was ‘an offender unlawfully at large from Her Majesty’s Prison, Brixton’ whereas the evidence from the police constable from England was that Mr. Bolger had absconded whilst on bail. In the light of these two submissions, Judge Windle stated that he required expert evidence on English law and he granted an adjournment for that purpose.

6. On the 23rd July, 1996 evidence was called in relation to the two matters arising out of the warrants raised on the previous occasion. This evidence was that under English law it was not necessary to state the location in which an offence had taken place on the warrant. The witness was unable to give admissible evidence as to how Mr. Bolger who had never physically been in Brixton prison could be said to be unlawfully at large from that prison.

7. A further adjournment was allowed in order that the possibility of calling additional evidence would be considered. When the matter came on for hearing on the 10th October, 1996 no further evidence was adduced. Judge Windle then made an Order discharging Mr. Bolger on the grounds that he was not satisfied as to the two matters which had been raised previously.

8. As appears from the foregoing the evidence adduced at the hearing of the District Court concerning the geographical location of the offence and the reference in the warrants to Mr. Bolger being at large from Brixton prison was directed to whether extradition should be ordered upon the said warrants. It was evidence adduced for the purpose of clarifying and explaining the warrants and not for any other purpose. In the premise I say and believe that the decision of the learned Judge of the District Court discharged Mr. Bolger on the previous occasion was on the grounds that he was not satisfied the warrants were in a form which satisfied the necessary proofs for the extradition of Mr. Bolger.”

16. Mr. Mulholland was cross-examined before me on foot of a notice to that effect. I accept Mr. Mulholland’s evidence of what transpired in the District Court on the 23rd May, 1996, 23rd July, 1996 and on the 10th October, 1996.

17. It would appear to me that the dispute which arose and was litigated in the District Court concerned the lawfulness of the arrest of the Applicant and was based on the assertion by the Applicant that the warrants on foot of which he was arrested were defective in two respects and as a consequence his arrest was unlawful and hence in the words of McCarthy J in McMahon -v- Leahy , (1984) IR 525 at 547 “ essentially the extradition application was never properly launched ”.

18. It is common case that arising from this, Judge Windle made an Order under Section 47, subsection (3) discharging the Applicant.

19. I further accept that the two matters which were litigated before Judge Windle were as is deposed to at paragraph 5 of the Affidavit of Mr. Mulholland, namely, that the warrants did not specify the location of the offence and that the recitals in all of the warrants said that Peter Bolger was “an offender unlawfully at large from Her Majesty's Prison, Brixton” and that this was contradicted by the evidence from the police constable from England to the effect that Mr. Bolger had absconded whilst on bail in the course of his trial, a fact which has never been in dispute.

20. Thus, Judge Windle being satisfied as he must have been, that the warrants as is clear from them did not specify the location of the offence and as it was equally clear that the evidence of the police constable contradicted another material content of the warrant, he was necessarily driven to the conclusion that the warrants were bad and hence the arrest unlawful and consequentially that the Applicant must be discharged.

21. As is apparent from the new warrants, that is to say the warrants obtained from Bow Street Magistrates Court on the 25th June, 1998, both of these two issues are addressed in that in respect of the location of the offence the words “within the jurisdiction of the said Crown Court” are added to each of the warrants thereby establishing the location of the offence, and the following is substituted in the new warrants for paragraph 6 of the old warrants “the said Peter Edward Bolger also known as Peter Bolger having been convicted of and sentenced for the said offence is required to be detained in a prison to which the Prison Act, 1952 applies and therefore is an offender unlawfully at large from such prison” thereby correcting the contradiction between the undoubted facts and the contents of paragraph 6 of the warrants which were the subject matter of the hearings in the District Court in 1996.

22. Thus the issue for determination in this hearing is whether the issues which are sought to be tried and determined before the District Court in the intended extradition proceedings on foot of the warrants obtained on the 25th June, 1998 are the same issues which were heard and determined by Judge Windle finally on the 10th October, 1996.

23. In approaching the resolution of this issue I note initially that on behalf of the Respondents, Mr. Charlton conceded that the jurisdiction exercised by a District Judge under Section 47 of the Extradition Act, 1965 involved a function which was judicial rather than administrative in nature. Thus an estoppel either of the cause of action type or issue estoppel could arise as between one proceeding and another taken under Section 47 of this Act.

24. On behalf of the Applicant it was conceded in reply by Mr. Humphries that a lawful arrest could be made after an invalid arrest and indeed this proposition is amply illustrated in the authorities and in particular in the cases of Hegarty -v- The Governor of Limerick Prison , (1998) IR Vol. 1 412, Duncan -v- The Governor of Portlaoise Prison (No. 2), (1998) IR Vol. 1 at 433, Collie -v- The Governor of Portlaoise Prison , (1998) IR Vol. 1 443 and finally Quinlivan -v- The Governor of Portlaoise Prison , (1998) IR Vol. 1 at 456.

25. It necessarily follows from the fact that there can be a lawful re-arrest following an unlawful one, that the indorsing by the First named Respondent of the warrants obtained from Bow Street Magistrates Court on the 25th June, 1998 and the subsequent arrest of the Applicant on foot of those warrants was permissible. That then necessarily precipitated the bringing before the District Court of the Applicant pursuant to Section 45(2) of the Extradition Act, 1965.

26. Upon being brought before the District Court it would be open to the Applicant to raise any matter which might impinge on the lawfulness of his arrest and upon so doing it would be necessary for the District Judge pursuant to his obligation to vindicate the constitutional rights of the Applicant, to hear and determine such issues as were raised by the Applicant which would necessarily impinge on his right to liberty.

27. Having regard to the fact that the two matters which were raised in the District Court proceedings in 1996 and led to the Applicant’s discharge at that time, have been corrected in the warrants which were issued on the 26th June, 1998, it would seem unlikely that these issues would arise for determination again.

28. It may very well be that the Applicant may discover other defects in the process not hitherto raised and if that be the case there can be no doubt that these would be issues which had not heretofore been heard or determined and no question of res judicata could arise.

29. It would seem to me that if it is accepted that there can be a lawful subsequent arrest with the necessary consequence of initiating the procedure under Section 45(2) of the Extradition Act, 1965, the Applicant’s primary submission to the effect that there is an estoppel which prevents the re-initiation of failed extradition proceedings, must be rejected.

30. It then remains to be decided, whether in the course of the proceedings which follow upon the Applicant being taken before the District Court pursuant to Section 45(2), there will arise an issue in respect of which issue estoppel could arise, namely, whether that issue had been determined between the same parties in the previous proceedings. As it is not yet apparent what issues will arise in the District Court proceedings now initiated, it is manifestly premature to say whether any issue estoppel will arise.

31. In these circumstances the Applicant's claim in these proceedings must be dismissed.