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URL: http://www.bailii.org/ie/cases/IESC/2008/S38.html
Cite as: [2008] 4 IR 780, [2008] IESC 38

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Judgment Title: Bolger -v- O'Toole & Bolger -v- Judge Haughton

Neutral Citation: [2008] IESC 38

Supreme Court Record Number: 461/05 & 47/06

High Court Record Number: 2004 232 SP & 2004 888 JR

Date of Delivery: 17 June 2008

Court: Supreme Court

Composition of Court: Denham J., Hardiman J., Fennelly J.

Judgment by: Fennelly J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Fennelly J.	Other (see notes)	Denham J., Hardiman J.

Outcome: Allow appeal in 461/0. Dismiss 47/06

Notes on Memo: Allow s.50 appeal - 461/05
Dismiss JR appeal - 47/06

THE SUPREME COURT

IN THE MATTER OF THE EXTRADITION ACT 1965 AS AMENDED

Supreme Court Record No. 461/05

Denham J.
Hardiman J.
Fennelly J.

BETWEEN

PETER BOLGER

Plaintiff/Respondent

AND

PATRICK O’TOOLE

Defendant/Appellant

JUDICIAL REVIEW
Supreme Court Record No. 47/06

BETWEEN

PETER BOLGER

Applicant/Appellant

AND
JUDGE GERARD HAUGHTON
IRELAND AND
THE ATTORNEY GENERAL

Respondents

JUDGMENT of Mr. Justice Fennelly delivered the 17th day of June, 2008.

1. This judgment concerns two sets of proceedings related to an attempt to extradite Mr Peter Bolger to serve sentences in England. The warrants were issued and endorsed before the coming into force of the European Arrest Warrant. Part III of the Extradition Act 1965 (“the Act of 1965”) applies.

2. Firstly, the State, in the form of the Assistant Commissioner of the Garda Siochána, appeals against a High Court order that the above-named respondent (Mr Bolger) be released by reason of lapse of time pursuant to section 50(2)(bbb)) of the Extradition Act, 1965, as amended.

3. Secondly, Mr Bolger appeals against the dismissal of an application for judicial review of the decision of the District Court directing his delivery to England and Wales.

The procedure to date

4. On the 25th of June 1998 a Stipendiary Magistrate and Justice for the Inner London Area, issued fourteen warrants seeking the arrest of Mr Bolger in relation to offences for which he had been convicted and sentenced by the Southwark Crown Court. These Warrants were sent to this State and endorsed by Assistant Commissioner O’Toole on the 19th October 1998. Mr Bolger was arrested and brought before the Metropolitan District Court on the 20th October 1998 where he was initially remanded in custody, but later released on bail.

5. On the 15th of June 2004 District Judge Gerard Haughton made orders under Section 47 of the Extradition Act, 1965 directing Mr Bolger’s delivery into the custody of the London Metropolitan Police.

6. Mr. Bolger challenged the District Court decision in two High Court proceedings. Firstly, he applied by Special Summons to the High Court in June 2004 for a direction for his release pursuant to Section 50 of the Act of 1965 as amended on two grounds:

· Lapse of time pursuant to section 50(2)(bbb) of the Act of 1965, inserted by section 2(1)(b) of the Extradition (Amendment) Act, 1987 (hereinafter “paragraph (bbb)”;

· Absence of correspondence between certain of the offences of which Mr Bolger had been convicted (forgery) and any offence under the law of the State, as required by section 50(2)(c) of the Act of 1965.

7. Secondly, Mr Bolger obtained leave to apply for judicial review of the decision of Judge Haughton in the District Court, principally on the ground that his extradition would constitute a breach of his fundamental and constitutional rights.

8. These two sets of High Court proceedings were heard in July 2005. On 28th October 2005, Peart J delivered a single judgment for the two sets of proceedings. He dismissed the application for judicial review. However, he granted a direction for the release of Mr Bolger on the ground of lapse of time pursuant to paragraph (bbb), while rejecting his argument based on paragraph (c).

9. The Assistant Commissioner has appealed against the High Court order for Mr Bolger’s release pursuant to section 50. Mr Bolger, in that appeal, submits that the learned High Court judge erred in refusing him relief pursuant to paragraph (c).

10. Mr Bolger has appealed against the judgment and order of Peart J, dismissing his application for judicial review of the District Court order.

11. Paragraph (bbb) requires the Court to have regard to all the circumstances when considering whether it would be “unjust, oppressive or invidious to deliver [a person] up under section 47.” Accordingly, I will commence by outlining the chronology of Mr Bolger’s prosecution in England and the various proceedings which have taken place in this jurisdiction.

Chronological history

12. The offences the subject of the extradition warrants are alleged to have been committed between 1st January 1991 and 16th July 1991. The charges allege the stealing of cheques and money, carrying on business with intent to defraud, and forgery.

13. Mr Bolger was arrested and questioned by police in the course of their investigations on 15th July 1992. He was charged on 20th April 1994. He was released on unconditional bail with an obligation to attend at Bow Street Magistrates Court. Following preliminary hearings, he was committed on bail to stand trial in the Southwark Crown Court in June of 1994.

14. The trial of Mr Bolger and a co-accused commenced at Southwark Crown Court before His Honour Judge Watts and a Jury on the 13th of March 1995. Mr Bolger attended at his trial each day until Monday the 3rd of April 1995. During the trial, he had returned to Ireland at week-ends. On 3rd April 1995 he failed to attend on the ground of illness.

15. By that time all evidence had been heard in the criminal trial and both prosecuting and defending counsel had made closing submissions to the Jury. The trial judge decided to continue the trial in Mr Bolger’s absence. Mr. Bolger continued to be represented in the trial by counsel and solicitor and the jury was informed that he was absent, that a medical certificate had been received and that they should not draw any inference adverse to Mr Bolger from his absence.

16. The trial Judge issued a bench warrant on the 3rd of April 1995 which directed his arrest ‘for breaching his conditions to surrender to bail at Southwark Crown Court’.

17. Mr Bolger was convicted by the jury on the 6th and 7th April 1995 of the fourteen offences specified in the warrants received from the United Kingdom being:-

(i) 10 offences of Theft contrary to Section 1(1) of the Theft Act, 1968;

(ii) 3 offences of Making a False Document With Intent contrary to Section 1 of the Forgery and Counterfeiting Act, 1981; and

(iii) 1 offence of knowingly carrying on the business of a limited company for a fraudulent purpose contrary to Section 458 of the Companies Act, 1985.

18. Sentencing was adjourned on a number of occasions. The plaintiff submitted medical evidence in the form of medical certificates to the Court in relation to his medical condition and initially indicated a willingness to be examined by a doctor instructed by the Crown Prosecution Service. A suggestion that independent medical examination take place was ultimately rejected by Mr Bolger.

19. The Trial Judge thereafter proceeded to sentence Mr. Bolger, in his absence, on 2nd June 1995. He imposed sentences of two years imprisonment to run concurrently on the theft charges and one year to run consecutively on each of the forgery charges.

20. Mr Bolger has not appealed his conviction or sentence. Nor has he sought judicial review of any of the decisions of the Crown Court.

21. Warrants were issued on 27th December 1995 for the purpose of seeking the extradition of Mr Bolger to serve the sentences imposed on him. These warrants were endorsed for execution on 15th February 1996. Mr Bolger was arrested and brought before the District Court. The application was heard on 23rd May 1996, 23rd July and 10th October 1996. District Judge Windle declined to make the order for the surrender of Mr Bolger and ordered his release for reasons which have no bearing on subsequent events.

22. New extradition warrants were not issued until 25th June 1998. They were endorsed for execution by the Assistant Commissioner on 19th October 1998. Mr Bolger was arrested and brought before the District Court on 20th October 1998.

23. On the same day, Mr Bolger applied to the High Court for his release pursuant to Article 40.4.3 of the Constitution. Laffoy J ruled that the certificate on which he was detained was valid and declined his application for release. He appealed that order of refusal to the Supreme Court, which dismissed his appeal on 2nd November 1998.

24. On 2nd November 1998, Mr Bolger applied for leave to apply for judicial review, seeking orders of prohibition and certiorari preventing any further steps being taken by the District Court and quashing the endorsement of those warrants by the Assistant Commissioner. He alleged that the extradition proceedings were an abuse of the process of the Court and/or unlawful as being an attempt at retrial of the earlier application and accordingly res judicata. O’Higgins J made an order granting leave limited to that ground but refused leave in respect of an allegation of conspiracy between the Criminal Assets Bureau and the London Metropolitan Police. O’Higgins J remarked that “that the allegations made [by Mr Bolger] are simply allegations of a general nature unsupported by any firm evidence and that therefore it is not a proper case to bring Judicial Review…” Mr Bolger appealed the decision refusing him leave on the second ground. His appeal to the Supreme Court was dismissed.

25. On 8th November 1998, Mr Bolger sought a declaratory order that he was not in lawful custody on the ground that there was no extant order remanding him in custody. On 15th December 1998, O’Higgins acceded to an application by the Attorney General that those proceedings be dismissed. Mr Bolger appealed to the Supreme Court against that order. The Supreme Court dismissed his appeal on 8th July 1999.

26. His substantive application for Judicial Review was dismissed by the High Court on 8th June 2000. He appealed to the Supreme Court, not lodging his books of appeal until mid-2002. His appeal was heard on 2nd December 2002 and judgment was given dismissing it on the same day.

27. The application for his delivery was re-listed in the District Court on 9th April 2003. It was heard in November 2003. On 15th June 2004, the relevant orders were made in the District Court pursuant to section 47 of the Act of 1965.

The health issue

28. The issue of Mr Bolger’s health figures prominently both in his claim for relief pursuant to paragraph (bbb), as an “exceptional circumstance” and his application for judicial review, where it is part of his case for infringement of fundamental rights.

29. The evidence concerning Mr Bolger’s health is contained, in part, in the transcript of proceedings in the District Court and, in part, in medical certificates produced for the Crown Court.

30. The place to begin is the trial at Southwark Crown Court. Mr Bolger had spent week-ends at his home in Dublin during the trial. He says that he was not required to remain in the UK. He travelled to Dublin for the week-end on 31st March 1995. He did not appear for his resumed trial on 3rd April 1995. He claims that he was unable, due to illness, to do so.

31. It is clear that Mr Bolger’s poor health pre-dated his trial. Dr O’Sullivan, his general practitioner, gave evidence in the District Court that Mr Bolger had had a right inguinal hernia operation in April 1993 at St James’s Hospital. Mr Bolger gave evidence that, even after the operation, he was unwell. He had also been feeling terribly ill during the trial. He had asked the judge to facilitate him in leaving court to go to the toilet. He had attended Chelsea and Westminster Hospital, where it was suspected that he had a hernia.

32. During the week-end of 31st March to 2nd April, in Ireland, he was in great pain. Dr O’Sullivan was unavailable. He contacted another GP, Dr Collis, on Sunday 2nd April. Dr Collis suggested he go to the casualty department at the Adelaide Hospital, but it was closed. He prescribed painkillers. Dr Collis wrote a medical certificate, which stated that he was very seriously ill with an acute inguinal hernia on his right side, which would need surgical repair: he could have a bowel obstruction at any time. He also said that he had a severe asthmatic bronchitis and was “stressed out.”

33. Dr O’Sullivan saw Mr Bolger on 3rd April and reported to similar effect. He advised attendance on a surgeon which he arranged for Thursday 6th April. He certified him unfit to travel.

34. Professor Tanner, Director of Surgery at the Royal College of Surgeons in Ireland saw him on 6th April and confirmed that he had both quite a serious condition and a relatively minor one. He had inflammatory bowel disease and the recurrent hernia already mentioned. The bowel problem was the more urgent. He was admitted to the Meath Hospital for a colonoscopy. The results showed on 27th April that he possibly had Crohn’s disease or ulcerative colitis. This condition was, however, not a matter for surgery, but for management by a physician. Mr Bolger was referred to Mr O’Morain, who took over care for Mr Bolger. He did not have the corrective hernia operation until May 1996.

35. The Crown Court was provided with certificates from Dr Collis and from a doctor at the Meath Hospital to the effect that Mr Bolger was suffering from a hernia and was unfit for travel. Other than these certificates, no evidence was provided to that court concerning Mr Bolger’s medical condition. The Crown Court decided that the trial could continue in the absence of Mr Bolger. Following the jury verdict convicting Mr Bolger, the court was kept informed of developments concerning his medical condition. There was discussion between the London Metropolitan Police and Mr Bolger concerning the possibility of arranging an independent medical examination. Mr Bolger’s solicitors wrote on 27th April to the Police inviting the nomination of “a doctor in Dublin who would be prepared to examine our client on behalf of the Crown.” Ultimately, Mr Bolger caused his solicitors in England to write to the Police saying: “Mr Bolger withdraws his consent to be examined by an independent doctor.”

36. Mr Bolger continued to require medical care both for recurrent right inguinal hernia and for the developing condition of Crohn’s disease. Although there was much controversy at the hearing of the appeal concerning the manner in which the Crown Court handled the evidence of his condition and as to Mr Bolger’s own lack of co-operation, there is no doubt that he has suffered very significant illness for a number of years and nobody has challenged the medical opinion that he was unfit to travel back to London for the continuance of his trial in April 1995.

Section 50: the issue of correspondence

37. The learned trial judge made an order directing Mr Bolger’s release pursuant to paragraph (bbb) on the ground of lapse of time. On the other hand, he rejected, without giving specific reasons, the argument based on alleged lack of correspondence.

38. On the appeal, Mr Bolger has confined his argument of lack of correspondence to the forgery offences. The judge at the Crown Court imposed consecutive sentences in respect of these offences, so that they have an important effect on the total period of imprisonment to be served if Mr Bolger is returned to England. I will, consider this argument first.

39. Section 47(2), addressed to the District Court, and section 50(2)(c) of the Act of 1965, addressed to the High Court, make correspondence of offences an essential component of an order for extradition made under Part III of the Act. The latter provision, which is relevant for present purposes, provides that an order shall be made for release of a person, arrested under Part III, where:

“the offence specified in the warrant does not correspond with any offence under the law of the State which is an indictable offence or is punishable on summary conviction by imprisonment for a maximum period of at least six months.”

40. By virtue of section 42 of the Act of 1965, the focus is on the acts alleged in the warrant issued in the requesting state. Subsections (2) and (3) of section 42, inserted by section 26 of the Extradition (European Union Conventions) Act, 2001, provide:

“(2) For the purposes of this Part an offence under the law of a place to which this Part applies corresponds to an offence under the law of the State where the act constituting the offence under the law of that place would, if done in the State, constitute an offence under the law of the State punishable—

(a) on indictment, or

(b) on summary conviction by imprisonment for a maximum term of not less than 6 months or by a more severe penalty.

(3) For the purposes of this Part, an offence specified in a warrant corresponds with an offence under the law of the State if—

(a) the act constituting the offence so specified would, if done in the State on the day the warrant is produced under section 43(1)(b), constitute an offence under the law of the State, or

(b) in the case of an offence so specified consisting of one or more acts including any act committed in the State, such act constituted an offence under the law of the State on the day on which it was committed or alleged to have been committed.”.

41. This statutory provision reflects the test laid down by this Court in Wyatt v McLoughlin [1974] 1 I.R. 378. As Walsh J explained in his judgment in that case (at page 398):

“…

the Courts of this State, when dealing with warrants endorsed for execution in accordance with Part III of the Act of 1965, must be satisfied that the acts constituting the particular offence for which extradition is sought are acts which, if committed within this jurisdiction, would constitute a criminal offence…….

[I]

t is necessary that either the warrant or some other document accompanying it should set out sufficient information as to these acts to enable the courts of the State to identify the corresponding offence, if any, in our law.”

42. By virtue of section 2(2) of the Act of 2001, the amendments thereby effected apply “in relation to an offence, whether committed or alleged to have been committed before or after the passing” of the Act.

43. Mr Bolger has been convicted of three offences of making a false document with intent contrary to Section 1 of the Forgery and Counterfeiting Act, 1981. Each of the three offences is alleged to have consisted of “making,” that is forging, a specified false instrument. The intent specified is that Mr Bolger (and another person) “should use it to induce somebody to accept it as genuine and, by reason of so accepting, to do some act to his own or any other person’s prejudice.”

44. The Forgery Act, 1913 is the relevant statute in force in this jurisdiction. Mr Patrick McCarthy, Senior Counsel, submitted on behalf of the appellant that the corresponding offence, for the purposes of the present case, is section 4 of that Act, which makes it an offence to forge any document “with intent to defraud.” The Act of 1913 recognises a distinction between an intent to defraud and an intent merely to deceive. Using or making a document with intent to deceive is made an offence in the case of a number of specified forged documents. None of those documents is mentioned in the warrants. The issue of correspondence must be decided by reference to the offence, under the Act of 1913, of forgery with intent to defraud.

45. Mr Bolger has not been convicted by the English court of an offence of making or forging a document with intent to defraud. The intention to use a false document to induce a person “to do some act to his own or any other person’s prejudice” is of a more general kind. It does not necessarily involve fraud.

46. It follows that correspondence is lacking in respect of the three offences of making a false document with intent. Therefore, Mr Bolger cannot be delivered pursuant to Part III of the Act of 1965 to serve the sentences imposed on him for forgery.

47. It is necessary then to consider the decision of the High Court in that light.

Lapse of time: paragraph (bbb)

48. It is unnecessary to recount the very detailed reasons given by Peart J for his decision to make the order for release pursuant to paragraph (bbb), since this Court must, according to the authorities, consider that matter independently and form its own view as to whether the facts justify a conclusion that it would be unjust, oppressive or invidious to deliver Mr Bolger.

49. The learned judge held that the total lapse of time was “exceptional,” attaching particular importance to the period of more than three years which elapsed between Mr Bolger’s failure to appear for the continuance of his trial in April 1995 and his arrest in October 1998 on foot of the endorsement of the second set of warrants issued in England. He criticised the English authorities for dilatoriness and lack of urgency. On the other hand, he ascribed most of the balance of the delay, after October 1998, to Mr Bolger’s various unsuccessful legal proceedings. Following a most detailed and exacting consideration of Mr Bolger’s illness, he accepted that it qualified as an “exceptional” circumstance, but, on the other hand, did not accept that it rendered it unjust or invidious to deliver him pursuant to the Act. In the final analysis, Peart J attached crucial weight to the comparatively short period of the sentence to be served by Mr Bolger, if returned, when set against the total period of lapse of time.

50. In order to obtain an order for his release pursuant to section 50(2)(paragraph (bbb), Mr Bolger must show that:

“…by reason of the lapse of time since the commission of the offence specified in the warrant or the conviction of the person named or described therein of that offence and other exceptional circumstances, it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under section 47…”

51. The principal cases referred to in argument in which this Court has considered the interpretation and application of paragraph (bbb) are: Fusco v O’Dea (no. 2) [1998] 3 I.R. 470; Kwok Min Wan v Conroy [1998] 3 I.R. 527; M.B. v Conroy [2001] 2 ILRM 311; Coleman v O’Toole [2003] 4 IR 222; Carne v O’Toole [2005] IESC 22.

52. The essence of paragraph (bbb) was succinctly distilled by Hardiman J in his judgment in Coleman v O’Toole, cited above, at page 228 as follows:

“It will be observed that para. (bbb) involves the following concepts:-

1. (a) the lapse of time;
2. (b) and other exceptional circumstances;
3. (c) such that having regard to all the circumstances;
4. (d) it would be unjust, oppressive or invidious to deliver up the plaintiff under s.47.

The first two concepts are conjunctively, not disjunctively, expressed. As a result of this, in my view, the lapse of time must itself be exceptional

and

there must be other circumstances, themselves exceptional, available to be considered under the section. These circumstances, of lapse of time and otherwise, must be placed in the context of the entire circumstances of the case. Thus considered, they must be such as render it unjust, oppressive or invidious to deliver up the plaintiff, before relief can be granted.”

53. The first hurdle is “lapse of time,” not, as Keane CJ observed in his judgment in M.B. v Conroy, cited above at page 317, “delay.” Responsibility for delay, a matter to which I will return, may be highly relevant to the ultimate question of whether it would be unjust, oppressive or invidious to deliver the person. But, to begin with, the question is simply whether the “lapse,” that is the period of time, taken in its conjunctive context, is itself exceptional. Is it an exceptionally long period?

54. A further point, potentially relevant in the present case, is whether that lapse should be measured from the date of “the commission of the offence specified in the warrant or the conviction…” The expression, “as the case may be” is, as noted by Peart J, absent. Normally, I would have thought that in a conviction case, such as the present, time should be measured from the date of the conviction. That seems, at least implicitly to have been the approach of Keane CJ in M.B. v Conroy. The plaintiff had been convicted before Manchester Crown Court on 9th November 1992 of an offence committed in between 1988 and 1990. In fact, Keane CJ measured the lapse of time from 7th December 1992, the date when the plaintiff had failed to appear for sentence. While I would not entirely rule out the possible relevance in a future case of a long prior interval between offence and conviction on the question of oppression , injustice or invidiousness, I have no doubt that the appropriate date in the present case is 6th April 1995, when Mr Bolger was convicted by the jury.

55. The total lapse in the present case between April 1995 and the commencement of the present proceedings in the High Court in June 2004 was nine years. The hearing in the High Court commenced on 12th July 2005. Peart J delivered his judgment on 28th October 2005. In M.B. v Conroy, Keane CJ recorded that the High Court judge in that case had measured the period up to the commencement of the hearing, whereas, in Fusco v O’Dea, cited above, Denham J had run it only to the date of issue of proceedings. Keane CJ appears to have chosen the latter date as the end of the period in the case before him. His reason was that the delay of three years that had occurred in that case was largely due to the illness of the plaintiff and not the responsibility of the prosecuting authorities. However, the cases recognise a distinction throughout between the length of the lapse of time itself and responsibility for it. Responsibility or blame has to be addressed at the final stage, not when considering whether the lapse is itself exceptional. Responsibility or blame is not relevant to the question of whether there has been an exceptional lapse of time. The purpose of the section is a broadly humane one. It allows the Court to make an order protecting a person, whose delivery is justified in all other respects, from being in fact delivered. He must, however, prove the combined presence of exceptional lapse of time and other exceptional circumstances with the proven fact that it would be unjust, oppressive or invidious to continue with his delivery. It would not be consistent with that purpose to exclude consideration of the entire period up to, at least, the hearing in the High Court. In the present case, therefore, the period is ten years.

56. The first other exceptional circumstance alleged in the present case is the delay or dilatoriness of the English authorities, principally by reference to the period between April 1995, when Mr Bolger failed to appear at Southwark Crown Court (or perhaps June 1995 when sentence was imposed) and 19th October 1998 when the warrants were endorsed for execution by the Assistance Commissioner. Within this period, there was a delay to December 1995 in seeking any warrants, in circumstances where there was no doubt, unlike in some of the other cases, as to the whereabouts of Mr Bolger. A further element is that the first set of warrants was held to be invalid by the District Court on 10th October 1996. This Court has not been asked to express any opinion on that District Court decision and I do not do so. Of more significance is the period from that date and the issue of fresh warrants on 25th June 1998. Those warrants were not endorsed until 19th October 1998.

57. I am satisfied that the combined events summarised in the preceding paragraph amount to other exceptional circumstances. They include significant periods of completely unexplained delay and the objective fact, even if it is not established that there was fault on the part of the English authorities, that Mr Bolger was subject to an earlier unsuccessful application for his delivery. I would like to comment, however, on the following observation of Peart J regarding this period of some three years and eight months:

“I am of the view that for the purpose of the section, this factor – the length of the delay in the context of the length of the sentence – is sufficient to render the lapse of time exceptional for the purpose of triggering the next step in the section, namely to see if there can be identified “other exceptional circumstances”

58. I am satisfied that this is a mistaken approach. The initial question is whether the total lapse of time which the learned judge correctly found to be ten years is exceptional. In the above passage, he was setting the sentence imposed against the period of three years and four months. That may amount to an other exceptional circumstance. It is not the “lapse of time,” identified by him as the “trigger.”

59. The most difficult aspect of the case concerns Mr Bolger’s illness. Two of the cited cases contain quite strong indications that illness cannot normally be accepted as constituting an exceptional circumstance.
60. In M.B. v Conroy, the plaintiff had suffered for many years from chronic life-threatening conditions of severe steroid-dependant asthma and insulin-dependant diabetes mellitus. Counsel for the Assistant Commissioner submitted that, since the plaintiff’s state of health would not be a relevant consideration in determining whether he should stand trial in this jurisdiction, it followed logically that it could not be considered as an exceptional circumstance. Keane CJ appears to have accepted this submission, though he merely said that “it would not be ‘unjust’ in the circumstances of the present case to permit the plaintiff’s extradition.” On the other hand, he did take the plaintiff’s illness into account when ultimately ruling that his surrender would, “in all the circumstances be oppressive and invidious.”

61. In the more recent case of Carne v O’Toole, Geoghegan J held that the quite severe illness alleged in that case did not “in fact constitute exceptional circumstances on the existing evidence.” He thought: “There would have to be much more traumatic and devastating evidence of ill health before the courts would regard a medical condition as providing exceptional circumstances.”

62. There is no doubt that Mr Bolger has suffered from quite severe long-term ill-health. His hernia problems pre-dated his trial at Southwark Crown Court, where he says that the judge facilitated him. He has not clearly established whether his condition of Crohn’s disease was diagnosed for the first time in April 1995, though this appears unlikely. Peart J referred to the paucity of evidence before him with regard to the medical condition of Mr Bolger at the time of the High Court hearing. It is notable that the doctor most concerned with his treatment for Crohn’s disease was Dr O’Moráin, who has furnished no report, statement or affidavit. For these reasons, having regard to the judicial pronouncements mentioned, I do not think Mr Bolger’s illness is an exceptional circumstance.

63. The deciding factor in the High Court decision to make an order for release under paragraph (bbb) was the relationship between the length of the sentence Mr Bolger would have to serve and the culpable delay of three years and four months between April 1995 and October 1998. Peart J was influenced by the following passage from the judgment of Barron J in Kwok Min Wan v Conroy, at page 541:

“The sentence which the plaintiff would be required to serve would be four years. The length of the sentence must be a consideration. The shorter the sentence, the more compelling the delay and other exceptional circumstances would be to retain him within the jurisdiction. The longer the sentence the less compelling such circumstances would be.”

64. It should be mentioned that the majority judgment was delivered by Hamilton CJ. Barron J delivered a concurring judgment. The other judgment does not refer to the length of the sentence. I would not demur from the proposition that the shortness of the sentence could be a material consideration, though Barron J refers incorrectly to what “other exceptional circumstances would be to retain him within the jurisdiction.” That is the obverse of what must be shown. In my view, the shortness of the sentence cannot be an exceptional circumstance. Once the statutory requirments of showing correspondence and other matters have been met, the order for delivery will normally be made.

65. Thus, the only exceptional circumstance demonstrated on behalf of Mr Bolger is the culpable delay or dilatoriness of the English authorities in the period from 1995 to 1998. My approach is different from the learned trial judge on this point. The three-year period must not be viewed entirely on its own. Indeed, the learned judge said as much at one point in his judgment. It forms part of the total period or lapse of time of ten years. The authorities establish clearly that a person cannot complain about a period of delay for which he bears the responsibility. Hamilton CJ, in his judgment in Kwok Min Wan v Conroy, at page 535 quoted with approval the following passage from the speech of Lord Diplock in Kakis v. Republic of Cyprus [1978] 1 W.L.R. 779, at page 733:

“Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them.”

66. Paragraph (bbb) enjoins consideration of “all the circumstances.” These must necessarily encompass the entire of the period of lapse of time. The applicant is not entitled to cherry-pick, to say that the authorities are to blame for part of the period and to ignore the rest. The learned trial judge correctly found that the greater portion of the balance of the period of ten years was due to the various legal proceedings taken by Mr Bolger.

67. Put simply, it can be said that, during the period of more than four years from 20th October 1998 to 2nd December 2002, the High Court and the Supreme Court were preoccupied with his various proceedings and appeals, all of them unsuccessful. There were four appeals to the Supreme Court. Mr Bolger’s counsel has severely criticised the delays in the system following the dismissal of the final appeal to the Supreme Court in having the case listed and fully heard in the District Court. No doubt, there was a significant element of unnecessary delay, but what is required is an appraisal of the entire period as part of the entire of the circumstances.

68. In the final analysis, it is necessary to stand back and consider the entire history in accordance with the correct application of paragraph (bbb). I accept that the lapse of time of ten years qualifies as sufficiently exceptional to satisfy the first requirement. I have also indicated that the delays between 1995 and 1998 constitute another exceptional circumstance, but have come to the conclusion that it is to be considered against the contribution of Mr Bolger himself to the total period. The ultimate question is whether, in all the circumstances, it would be unjust, oppressive or invidious to deliver Mr Bolger to the authorities in the United Kingdom. For that purpose, both his illness and the length of the sentence to be served have to be put in the balance. The decisions of this Court in M.B. v Conroy and Carne v O’Toole strongly suggest that his illness would not justify making an order for release. In the former case, the decisive element was that the illness appeared to have supervened after the plaintiff’s return to Ireland. The Chief Justice there accepted that it would not be logical to refuse delivery to another country to stand trial on the ground of an illness which would not prevent a trial here. Similar considerations apply where his delivery is required in order to serve a sentence.

69. The length of the sentence (which must now be limited to two years) is not an exceptional circumstance. It could be considered, if it tended to show that delivery would be unjust, invidious or oppressive, but I cannot see how that is so in this case. However, when appraising all the circumstances, Mr Bolger’s own behaviour is material. It cannot be ignored that Mr Bolger failed to attend the balance of his trial and that the only evidence he produced for the English court took the form of two medical certificates. Like Peart J, I cannot escape the impression that he refused cooperation with an independent medical examination. He has greatly added to the length of the proceedings as a whole by the pursuit of utterly unmeritorious legal proceedings.

70. I am satisfied that it would not be unjust, oppressive or invidious to deliver Mr Bolger pursuant to the orders of the District Court. I would allow the appeal from the order of the High Court directing his release.

The Judicial Review proceedings

71. Mr Bolger applied for leave to apply for judicial review of the decision of District Judge Gerard Haughton made on15th of June 2004 directing the delivery of Mr Bolger into the custody of the London Metropolitan Police on a number of grounds. The substantive application for judicial review was rejected by Peart J. Only two grounds are pursued on this appeal:

· that the rendition of Mr Bolger to England and Wales pursuant to Part III of the Act of 1965 would be in breach of his constitutional rights and/or alternatively his rights under the European Convention of Human Rights, by virtue of the fact that, at the time of his conviction Mr Bolger was medically unfit to attend his trial;

· there was a breach of his right to trial of his extradition proceedings within a reasonable time as required by the Constitution.

72. It must be emphasised at once that these proceedings are an attempt to review the decision of the District Court, which reached a considered conclusion based on oral evidence. The District Court had evidence before it concerning the medical condition of Mr Bolger both at the time of his trial in the Crown Court and subsequently. Accordingly, Peart J approached the case on the following basis:

“Evidence about this was before the District Judge. He had evidence that the trial judge was apprised of the nature of the illness. Efforts were made by the prosecution to clarify the precise nature of the illness and its effect on the applicant's ability to attend court. The applicant is critical of the extent of the efforts made by the prosecution to pursue those enquiries, but be that as it may, the trial judge concluded that the trial could proceed to conclusion and he allowed the jury to retire and reach its verdict in the absence of the applicant, but while his solicitor and counsel were still instructed and present. I cannot see that this amounted to an unconstitutional unfairness.”

73. The situation before the Crown Court was that all of the evidence, examination and cross-examination had concluded before the non-appearance of Mr Bolger on Monday 3rd April 1995. The judge was satisfied that it was fair to proceed with the trial to conclusion. The jury were informed of Mr Bolger’s absence, that a medical certificate had been received and that they were not to draw any adverse inferences.

74. Peart J further referred to the procedures before the Crown Court in great detail. He commented:

“Without going into it in any great detail, it seems clear that the applicant was not fully co-operative with regard to the further investigation of his medical condition by the prosecution. He appears to have not been agreeable, by the beginning of June 1995, to be examined by a doctor here who was nominated by the prosecution, having at an earlier point in time agreed to this.”

75. The onus is on Mr Bolger to establish the unfairness of the trial procedures by clear evidence. The conclusion of Peart J was well justified on the evidence. Furthermore, I regard as crucial the fact that Mr Bolger, having originally instructed his solicitors to appeal against his conviction in the Crown Court, decided not to proceed. He was represented by solicitor and counsel right up to the conclusion of his trial and sentence. He has not appealed or sought judicial review of the conviction or sentence. He has not asked his English solicitors to swear that the procedures were unfair in any way.

76. The complaint based on delay must completely fail in limine. The District Court had no jurisdiction to entertain an argument based on delay. Since the enactment of paragraph (bbb) the High Court has the power granted to it by that provision. There is not and never has been any power in the District Court to refuse to make an order for delivery pursuant to Part III of the 1965 Act on the ground of delay. The matter is governed by a judgment of Henchy J delivered prior to the enactment of paragraph (bbb). In Hanlon v Fleming [1981] 489 at 494 he responded to a submission that that the right to extradite the accused had been lost by reason of the inordinate length of time that had passed since the specified offence was said to have been committed and, particularly, since the High Court proceedings had heard in the following terms:

“As to the first point, the delay has been inordinate and it is in part unexplained; but I do not think it is in itself a good ground for refusing extradition. The failure to have the charge against the accused tried in due time in London has been the accused's own fault primarily. Such evasion of a trial is usually the reason for extradition proceedings. If the accused had not broken bail and fled to Ireland, the charge against him would have been tried and disposed of long since. If the superimposed delay, due to the extraordinary lapse of time between the hearing in the High Court and the delivery of the reserved judgment, could be said to imperil or render impossible a fair trial, that would be a matter which would have to be raised in the first instance in an English court. But the scheme of reciprocal extradition between Ireland and The United Kingdom, represented on the Irish side by the Extradition Act, 1965, does not recognise delay as a ground for refusing extradition. For the Courts in this State to recognise delay as such a ground, it would be necessary to read into the statute something that has been omitted, presumably, on purpose. Therefore, I would reject this ground of appeal.”

77. Since the District Court had no jurisdiction to entertain an argument based on delay, its decision cannot be questioned for that reason.

78. I would dismiss the appeal from the judgment and order of the High Court in the judicial review proceedings and affirm the order of the High Court.

79. However, I would make an order for the release of Mr Bolger insofar as his extradition has been ordered in respect of the three forgery offences.