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Cite as: [2012] IESC 37

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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: 19/06/2012

Court: Supreme Court

Composition of Court: Denham C.J., Murray J., Hardiman J., Fennelly J., O'Donnell J.

Judgment by: Hardiman J.

Status of Judgment: Approved


Judgments by	Link to Judgment	Result
Hardiman J.	Link	Appeal allowed - set aside High Court Order
Fennelly J.	Link	Appeal allowed - set aside High Court Order
O'Donnell J.	Link	Appeal allowed - set aside High Court Order
Denham C.J.	Link	Appeal dismissed - affirm High Court Order
Murray J.	Link	Appeal dismissed - affirm High Court Order

Outcome: Allow And Set Aside

THE SUPREME COURT

Denham C.J. 98/11
Murray J.
Hardiman J.
Fennelly J.
O’Donnell J.

Between:

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

Applicant/Respondent

and
CIARÁN TOBIN

Respondent/Appellant

JUDGMENT of Mr. Justice Hardiman delivered the
19^th day of June, 2012.
This is a unique and unprecedented case under the European Arrest Warrant procedure. The Minister for Justice, as Central Authority, seeks the surrender of Mr. Tobin to Hungary, there to serve a sentence said to be of three years duration (but this is uncertain: see below) imposed on him in respect of a road traffic offence arising out of a tragic accident in which he was involved, on the 9^th April, 2000.

The appellant, Mr. Tobin, is an Irish citizen of unblemished character who not merely has no previous convictions, but has had a distinguished career in an Irish public company. At the time of the traffic accident referred to he was in Hungary seeking to develop the business of the Irish public company.

Many criminal issues that come before the Courts reveal facts that seem remote from the concerns of ordinary people who do not commit crime and are not likely to be suspected of having done so. This case is not in that category. Firstly, it has its origins in an appalling tragedy in which two Hungarian children lost their lives in a road traffic accident. The case illustrates how a perfectly ordinary person, of good character, can in a moment, and without any intentional or malicious act on his part, become first a suspect, then a convict sentenced to three years in a foreign jail, and then be pursued for many years on a number of inconsistent grounds. The case, accordingly, is not without relevance to anyone who travels abroad, and especially to anyone who drives a car when abroad.

It must be said at the outset that the combined effect of the tragedy, and the impossibility of life as a fugitive for a respectable person has led the appellant to offer actually to serve the sentence, whose justice - and that of the underlying conviction - he has never accepted, provided he could do so in Ireland. But this offer was rejected on the basis that there was no provision for it in Irish law.

The respect in which the case is unprecedented is that it represents the second attempt by the Central Authority to secure the delivery of Mr. Tobin to Hungary to serve this sentence. The first attempt, initiated in 2004, was heard and determined by the High Court in December, 2006. The application was refused. The Central Authority appealed to this Court where he was equally unsuccessful. The judgment of this Court was delivered on 25^th February, 2008. The Oireachtas then changed the law and the Central Authority claims to be entitled to seek Mr. Tobin’s surrender as though the first case had never happened. This is acknowledged, very realistically, to be “terribly harsh” on Mr. Tobin and his family but that is said to be irrelevant.

It may also be noted that if a Hungarian citizen were to be convicted of a serious road traffic offence in Ireland and sentenced to imprisonment, Ireland would not be in a position to seek his delivery from Hungary to serve this sentence. This is because the Hungarian government has availed of provisions in the Framework Decision on the European Arrest Warrant. These enable a Hungarian citizen in similar circumstances to serve his or her sentence in Hungary. In the present case, Mr. Tobin offered to serve the sentence in Ireland, but this offer was refused. There was no legal provision for it. When the Central Authority launched this second attempt, Mr. Tobin felt he had no option but to surrender his bail and go into custody in a convict prison, to mitigate the period he would spend in a Hungarian jail if the Courts gave him no relief. He went into custody in November 2011.

Outline Chronology.
As will appear in this judgment, I have several very grave concerns about the Central Authority’s application in the present case. One of these concerns relates to the grossly abnormal period of time during which Mr. Tobin, the father of a young family, has been under the threat of forcible separation from his family. A detailed chronology appears later in this judgment and it is discreditable both to this State and to the requesting State, in my opinion.
The tragic accident in which Mr. Tobin was involved, and which will be discussed in some detail below, took place in April, 2000.

The Hungarian trial on a road traffic charge, which was initiated in June 2001, took place in May 2002. An “International Arrest Warrant” (not now relied upon) was issued in 2004 and a European Arrest Warrant in 2005. The first attempt by the Central Authority to have Mr. Tobin forcibly delivered to Hungary on foot of a European Arrest Warrant took place between 2005 and 2008. These proceedings are now admitted to have been flawed. It was specifically contended by the State on the hearing of this appeal that Mr. Tobin had been correctly successful in resisting his surrender. In the State’s view, the problem related to a provision of the European Arrest Warrant Act, 2004 which “should never have been in the Act in the first place”. But this was scarcely Mr. Tobin’s fault. He fought the case on the law as it stood. After he won, the law was changed and the State started all over again, taking years in the process. Mr. Tobin, like any citizen in his position, cannot change the law and demand a re-match. But the Central Authority is doing just that.

By the time the State’s misconceived proceedings had been finally dismissed in February 2008, a period of eight years less two months had elapsed since the accident. The next step in this tangled history was the enactment of the Criminal Justice (Miscellaneous Provisions) Act, 2009. The effect of this Act was to delete from the Act of 2003 the provision which enabled Mr. Tobin to be successful in the previous proceedings.

On the 17^th September, 2009, 9½ years after the accident, the Hungarian authorities issued a further European Arrest Warrant seeking the surrender of Mr. Tobin. When the latter was arrested under this warrant, he, not surprisingly, replied:

“I thought it was all over after the Supreme Court”.

I agree with the statement of O’Donnell J. in his judgment in this case that “to a large extent, the question on this appeal is whether Mr. Tobin’s immediate and understandable reaction to arrest and caution was correct as a matter of law”.

The Accident and the Hungarian Proceedings.

The appellant, Ciaran Tobin, is an official of an Irish Public Company in which he has worked since he left school. While working full time with that Company he qualified first as a Certified Chartered Accountant (FCCA) and subsequently proceeded to the degree of Master of Business Administration (MBA). These are coveted qualifications, not achieved without serious and sustained endeavour and ambition by a person working full time. He has achieved a position of considerable seniority in his official career. He is married with two children and lives in Dublin. He is acknowledged to be a person of excellent character.

In 1997 Mr. Tobin was sent by his employer to Hungary to manage and develop a business which his employer had acquired in that country. He was to work in Hungary for a period of three years, from 30 November, 1997. He was accompanied in Hungary by his wife and later an infant son. A further child, a daughter, was subsequently born: his wife was expecting this second child at the time of the accident described below.

In the month of April, 2000, the appellant was still on his posting to Hungary. He and his wife had been visited there by an Irish couple with whom they were friendly. On the 9

^th

April, 2000, the appellant, his pregnant wife, their child, and their Irish guests, were doing some sightseeing in the area of Visegrad, Hungary. The weather was good and traffic was light.

The account of events which follows is taken from the appellant’s affidavit. It is important to note that this affidavit has not been challenged or contradicted in any way at all by or on behalf of the State or the Hungarian authorities. Its contents are therefore presumptively true. His evidential statement to the Hungarian Police is likewise uncontroverted.

On Sunday the 9

^th

day of April, 2000, the appellant was driving a Volvo 40 motor car along a public highway in the area mentioned. He had the persons mentioned above as his passengers. The street featured a raised area on which, relevantly to this case, was a bus stop and an area for people waiting for the bus to stand. This area was separated from the street by a kerb.

The car was not the appellant’s personal property but was supplied to him by the Irish public company for which he worked. Like many modern cars it was equipped with a range of electronic indicators intended to indicate malfunctions or items that needed to be adjusted. The vehicle was fully and regularly serviced at the expense of the appellant’s employers. Apart from this, the appellant had twice taken it to the garage complaining that certain indicators including that relating to the anti-lock braking system (ABS), had lit up without apparent reason. He was assured by the experts that this was an electrical fault only and did not indicate any fault in the functioning of the vehicle. It was also a feature of the vehicle, according to the appellant’s uncontradicted evidence, that airbags was programmed to deploy in the event of an impact at a speed above 50 kilometres per hour, or about 30 miles per hour.

On Sunday the 9

^th

of April, 2000, the appellant was involved in a traffic accident at the location mentioned above which, very tragically, involved the deaths of two people, children who were waiting in the vicinity of the bus stop mentioned above. The devastation caused by this tragedy cannot be understated the appellant has made no attempt to do so. But he denies that there was any criminal act or omission on his part, either in the driving of the car or in its maintenance, which caused the accident.

The appellant says that he was driving along the public highway at a speed of about 70 kilometres per hour, or about 42 miles per hour. The husband of the visiting couple was sitting beside him in the front passenger seat; their two wives and the Tobins nine month old child were sitting in the back. Mrs. Tobin, as has been mentioned, was pregnant at the time. As he drove, a car pulled out of a side street and on to the major thoroughfare along which the Tobins were driving. He thought it wise, as that car came closely in front of him, to pull into the only other available lane, that nearest the right hand kerb. This involved a movement to the right. After executing this movement, Mr. Tobin attempted to straighten up the car so that it could proceed in the normal fashion in the right hand lane. But the vehicle was suddenly and entirely unresponsive to efforts to straighten it up on the road or to apply the brakes. In an instant - motor accidents, notoriously, happen in a much shorter period of time than it takes to describe them - his car had mounted the kerb on the raised area and struck the two children standing there, with the appalling consequences already set out.

The circumstances of the accident giving rise to these proceedings, accordingly, can be briefly summarised. The driver, a man of good character, of mature years, was driving a well maintained, somewhat sedate car which is the property of his employer along a two-lane public highway in Hungary. He was accompanied by his infant child, his pregnant wife, and two friends. The

highest

speed at which the

prosecution

alleged the car was driven is 71-80 kilometres per hour or approximately 42 to 48 miles per hour. The car had been meticulously maintained at the employer’s expense. The only odd feature of its performance, the unexplained activation of certain indicators, has been drawn to the attention of the servicing garage and dismissed as insignificant in relation to the actual functioning of the car. The driver executed a normal traffic manoeuvre involving going from one lane to another, but quite suddenly the car became unresponsive both to steering and to brakes. It mounted the kerb on a reserved area with utterly tragic consequences.

Events after the accident.

Immediately after the accident the emergency services were called, including the police. Arrangements were made for the care of the appellant’s child who, because he was seated in a backwards facing child seat, had not registered the dramatic events which had occurred.

When the Hungarian police arrived they began to take statements which were clearly of a very formal nature and which indeed, in the ordinary course of events, would have been part of the criminal trial record. The appellant and his passengers were shocked and distressed. The appellant and his wife, during their stay in Hungary, had become friendly with a young English speaking Hungarian woman whose father they knew to be a lawyer. They do not appear to have been previously acquainted with the lawyer himself. But they contacted the daughter with the result that she and her father arrived at the scene. The young Hungarian lady interpreted between the police and the Tobins and their passengers. The Tobins and the police had no language in common.

After some time at the scene, and no doubt in view of the shock and distress of the Tobins and others, the police suggested that the statement taking process continue the following day at the police station. They required the attendance for that purpose of Mr. and Mrs. Tobin and their two guests. The police specifically told the lawyer’s daughter, who was acting as interpreter, to come as well.

The significance of this last detail is considerable. It transpired that, at the eventual trial of Mr. Tobin in Hungary, statements taken in the police station from the Tobins and their passengers were

excluded from evidence

on the basis that they had been translated by a person who was the daughter of a lawyer who had previously been advising the defendant. This was done notwithstanding that, having been warned of the prosecution’s attempt to exclude their accounts, the Tobins and their witnesses had reiterated their statements at the Polish Consulate in Dublin. The statements taken at the police station existed both in Hungarian and in English. This matter will be further discussed below.

It appears from the documents put before the Court that the statements of the Tobins’ and their witnesses were taken by questions and answer by a senior officer of the Hungarian Police. Mr. Tobin gave his account as summarised above. The police took possession of his car. Mr. Tobin says, without contradiction, that due to the rules of the Civil Law system as they exist in Hungary, it was not possible for him to have the vehicle examined but he requested through his lawyer, on 10 April 2000, that the police do so and in particular that they check the brakes, indicators and the speed at which the vehicle’s airbags should deploy, said by him to be 50 kilometres an hour. If they did this, it does not appear to have formed part of the record of the trial. On the formal protocol or minutes of the interrogation, Mr. Tobin is described as “Suspect”, Dr. Tibor Soós as “Defence Counsel” and Ms. Káta Soós as “Interpreter”. No objection was taken to her acting in that capacity, indeed the police required her presence for that purpose.

Hungarian proceedings.

After a significant delay, Mr. Tobin was charged with a Hungarian offence of negligent driving causing Death, In a Common Law country, such as Ireland, Britain, America, Canada, Australia etc., such a charge would involve an obligation on the person charged to attend Court. But this is not so in Hungary: a person charged with such an offence can remain away from Court and, if he wishes, can be represented by lawyers at the Court proceedings. It is now agreed by both sides that this is so, and that is what Mr. Tobin did.

The basis on which Mr. Tobin was convicted of the offence by the Hungarian Court is known to us from the warrants and the documents associated with them. As in another respect, to be discussed below, the account given in the four warrants which have been issued are not identical. But the account given in the third and fourth warrants, the latter being the one grounding these second proceedings, are identical. From this it appears that the Hungarian Court found that the defendant was guilty because:

“The accused steered to the right

for unknown reasons

and,

due to this sudden movement of the steering wheel, and due to the speed, being excessive compared to traffic conditions, the vehicle went up on the side walk which was separate from the road by a raised stone edge at a speed of 71 - 80 kilometres per hour…

”. (Emphasis supplied)

It is clear that the finding that the accused steered to the right “for unknown reasons” can only have been come to on the basis of ignoring the statement of the accused, Mr. Tobin, which gave a specific reason why he steered to the right: it was because a car from a side road had pulled out closely in front of him. But the Court had no regard to this statement apparently on the basis, as set out above, that he had been translated by a person who was the daughter of the defence counsel. The consequences of this development will be considered below. The Court did not disbelieve his account or consider it incapable of explaining the accident: it simply ignored what Mr. Tobin and his witnesses had to say. For some reason the prosecution thought it important to exclude Mr. Tobins account from being considered by the Court.

It is not clear how precisely the Hungarian Court came to its determination of the speed at which the car mounted the side walk, or how the speed is said to have contributed to this. It is a speed slightly in excess of that at which Mr. Tobin said he was driving along the road when the car pulled out in front of him. The airbags on his vehicle did not deploy and Mr. Tobin, through his lawyer, had suggested an investigation of why that was since they were meant to deploy on impact at a speed greater than 50 kilometres per hour. This does not appear to have been done, and as Mr. Tobin said without contradiction in his affidavit “I was unable to appoint my own expert to examine the car under the inquisitorial Hungarian Criminal Justice system”. This is plainly a significant matter having regard to the fact that the speed of the vehicle and the allegedly unexplained movement to the right, were the entire engine of the Court’s finding. It is important to bear in mind that the sentence was imposed for negligent driving causing death, which involved a prison sentence rather than for speeding or any purely regulatory offence.

Notwithstanding the fact that it is now agreed that Mr. Tobin was under no obligation to attend at the Court proceedings, the Central Authority’s first attempt to have him forcibly delivered to Hungary to serve a sentence pursuant to the provisions of the European Arrest Warrant Act, was taken on the absolutely specific basis that he had “fled” from Hungary. This is now admitted to be quite false. But it was the basis of the first proceedings which the State fought tooth and nail against him and, when it lost in the High Court, appealed to this Court. It is now said that this was all based on a mistake. But the mistake, manifestly, was that either of the Central Authority or of the Hungarian authorities. It was certainly not that of Mr. Tobin or his advisers. No-one has taken responsibility for the “mistake”, and therefore no-one has explained it.

In the argument on the hearing of this appeal, the State’s first set of proceedings, initiated on the 2004 Warrant, were referred to as “Tobin 1”. As the Irish law then stood, such proceedings could only have been taken on the basis that Mr. Tobin had fled from Hungary. But, as a matter of fact, he had not done so, as is now admitted. He was therefore entitled to succeed in those proceedings and did so for the reasons set out in the judgment of this Court of 25 February, 2008.

The legal consequences of the foregoing will be discussed below. But it is important to note the following uncontradicted facts. Mr. Tobin, in fact, returned twice to Ireland after the accident, once for a family wedding and then, later, because his term of secondment to the Hungarian Company was over. On the first occasion, he told the authorities he was going, asked for his passport (which he had produced to the police after the accident and had been retained by them) and was given it. After the wedding he went back to Hungary. He returned, with his family, on the second occasion because he no longer had a job in Hungary and needed to resume his employment in Ireland, and thereby support his family.

Notwithstanding the foregoing, the State, at the apparent urging of the requesting State, commenced proceedings for Mr. Tobins surrender back to Hungary on the basis that he had fled from that country. They persisted in this even after the facts set out above, clearly demonstrating that he had left Hungary quite openly and was not obliged to be present for the criminal proceedings were perfectly apparent. These “mistaken” and groundless proceedings arose from the issue of the “International Arrest Warrant” against Mr. Tobin in October 2004 and lasted until the judgment of this Court in February 2008.

By reason of the statutory machinery by which Ireland has implemented European Arrest Warrant arrangements, proceedings upon such a warrant are taken by the Central Authority. This is different, for example, from the position obtaining in England where the proceedings are taken in the name of the relevant official of the requesting State. In my opinion, however, no distinction can be made between the actions or omissions of the Central Authority and those of the requesting State. The Central Authority acts on foot of a warrant issued by the requesting State or some organ thereof, but the Central Authority itself is the moving party in the proceedings in this country. Accordingly, it appears to me that the Central Authority is fixed with knowledge both of the contents of the warrant issued in the requesting State and, of course, with the provisions of Irish law.

The purpose for which Mr. Tobins surrender to Hungary was required was to serve a sentence said to be three years imprisonment imposed upon him by the Hungarian Court. There is, as will be seen, some grave uncertainty as to the precise nature and length of that sentence, and as to whether any part of it is, as the High Court judge and the State Solicitor thought, “suspended”, but that need not detain us now. It is fully discussed below. It appears, again from the uncontradicted evidence of Mr. Tobin, that the criminal case attracted enormous publicity and excitement in Hungary, so that it was moved to a larger courtroom than that originally appointed; that there was considerable Hungarian newspaper and social media publicity about it, uniformly hostile to Mr. Tobin; that subsequently both Mr. Tobin and the Irish Public Company that employs him has received “hate mail” about him and that he has even received death threats apparently emanating from Hungary. It is greatly to the credit of his employers that they have resisted demands from anonymous sources to dismiss Mr. Tobin.

The first set of proceedings.

At the time of the first set of proceedings for Mr. Tobins surrender to Hungary, he and his family lived in County Meath. He was arrested there and held in custody until released on bail over the State’s objections. The effect of this on a perfectly respectable person, and on his family, can perhaps be imagined. The State then proceeded with the case even thought it must have been clear that the factual basis for the allegation that Mr. Tobin had fled was gravely unsound. They lost in the High Court but persisted with an appeal to this Court.

On the 27

^th

February 2008, this Court gave reasons for a judgment which dismissed the State’s appeal and affirmed the decision of the High Court. In other words, it dismissed the application to have Mr. Tobin forcibly delivered to Hungary. This must have been, and is said on affidavit to have been, a great relief to Mr. Tobin and his family. It is important to realise that legal proceedings of one sort or another had been ongoing, or in prospect, ever since the date of the accident. The terror and insecurity that this represents to Mr. Tobin and his family is easy to imagine. So is the destructive effect on his career, and the effect on his wife and children.

It is also important to re-iterate that, had these proceedings concerned a Hungarian citizen who was involved in a tragic traffic accident in Ireland, no question of his surrender to Ireland would arise. Even if he received a custodial sentence, and even if there were no substantive or procedural challenge available to it, he would be entitled to serve that sentence

in Hungary

because the Hungarians have invoked a provision to that effect in the European Arrest Warrant arrangements. Ireland has not done so.

Surrendering Irish Citizens.
In my judgment in the case of Minister for Justice v. Bailey (Supreme Court, unreported, 1 March, 2012) I compared French legislation with that existing in Ireland and pointed out that there was considerably greater scope for the French to request the surrender of a person from Ireland to France, than for Ireland to request the surrender of a French person, or a person who happened to be in France, to Ireland. This case, too, illustrates that Ireland is prepared to surrender its citizens, or the citizens of other countries who happen to be in Ireland, to countries which would not themselves deliver their own citizens or visitors to Ireland if the positions were reversed. I do not believe that this aspect of the European Arrest Warrant arrangements, which are within the control of the Irish authorities, are widely known. Nor do I believe that it is widely known that those provisions can be used forcibly to deliver a person of good character on road traffic charges.

This confusion is not surprising because when the European Arrest Warrant “Framework Document” was first drawn up in 2001 it related exclusively to Terrorist offences. It was subsequently, in the ten day period immediately after the 9/11 outrage in New York, extended to a great number of other offences many of which are not offences of specific intent at all. Again, I do not think that this aspect of the European Arrest Warrant arrangements are widely known, or were widely or clearly explained at the time.

What sentence was imposed?
Where a State requests another sovereign State to deliver one of its citizens to the requesting State for the purpose of undergoing a sentence which has been imposed upon him, it appears to me to be a very minimal and very basic requirement that the requesting State should, in the document in which it makes the request, specify the sentence which the citizen will undergo if forcibly delivered, and specify it clearly and without ambiguity.

A requirement to this effect appears to me to be imposed in any event by s.11 of the European Arrest Warrant Act, 2003.
Insofar as relevant this provides:
“11(1) A European Arrest Warrant shall, insofar as is practicable

be in the form set out in the Annex to the Framework Decision and shall specify -

…

(f)(i) The penalties to which that person would, if convicted of the offence specified in the European Arrest Warrant, be liable,

(ii) Where that person has been convicted of the offence specified in the European Arrest Warrant but has not yet been sentenced, the penalties to which he or she is liable in respect of the offence, or

(iii) Where that person has been convicted of the offence specified in the European Arrest Warrant and a sentence has been imposed in respect thereof, the penalties of which that sentence consists.”

The earlier and later provisions of subsection (1) do not appear to me to be relevant.

In my opinion, s.11 of the Act contains a mandatory requirement to state in the European Arrest Warrant, and in specific terms, “the penalties of which that sentence consists”.

In this case, however, there is a high level of confusion and actual contradiction on this vital topic. The Hungarian authorities have issued a total of no less than four European Arrest Warrants in respect of Mr. Tobin. They have also issued another document described as an “International Arrest Warrant” which is not relied upon in these proceedings.

The four separate European Arrest Warrants.
The first warrant, transmitted to the Irish authorities on the 16^th June, 2005, specifies the sentence as “three years of custodial sentence to be served in a non-high security establishment”.

The second warrant, delivered to the Irish authorities on the 26^th March, 2006, specifies the sentence as “three years imprisonment to be served in a low-level security prison”.

But the third warrant, delivered to the Irish authorities on the 13^th April, 2006, specifies the sentence as:

“Three years in a low-level security prison (Tobin Francis Ciaran may be released on parole after having served one half of his imprisonment sentence).”

The fourth warrant issued on the 14^th October, 2009, describes the sentence as “three years of imprisonment to be served in a low-level security prison”. That is, the reference in the previous warrant to release on parole after eighteen months has simply vanished.

On the hearing of this appeal, it was suggested that the variation of the statement of the sentence to be served related to an alteration or qualification of the sentence imposed by a Hungarian Court of Second Instance reviewing the decision of the Trial Court.

However, when Mr. Tobin was arrested pursuant to the European Arrest Warrant on the 11^th January, 2006, and was brought to the High Court, the State decided to oppose his release on bail, despite the fact that he was plainly a person of good character. In doing so, the State referred to the European Arrest Warrant and asserted that the custodial sentence facing Mr. Tobin in the event of his surrender was one of three years imprisonment. The State then asserted that, since he was facing custodial sentence of three years imprisonment, he was likely to seek to evade justice if admitted to bail and that accordingly bail should be refused. In supporting this objection in evidence on behalf of the Central Authority, Sergeant Anthony Lenihan of An Garda Síochána that he had no knowledge of a reduction in the term of imprisonment imposed on appeal.

In support of the application for Mr. Tobin’s surrender, a Dr. Klara Nemeth-Bokor, head of the Department of International Criminal Law in the Ministry of Justice in Hungary swore an affidavit on the 21^st July, 2006. In this she stated that following transmission of the warrant to the Irish authorities on the 16^th June, 2005 “requests for further information were received from the Central Authority between the 27^th July, 2005, and the 11^th May, 2006”.

She then went on to say, at para. 5:

“

As a result of the said requests for further information

, the issuing court considered the European Arrest Warrant, and

amended

the warrant

to reflect the findings of the Pest County Court, the Court of Second Instance

. The European Arrest Warrant as originally issued

did not state

that the sentence imposed on Mr. Tobin

had been amended

by the Pest County Court by adding the proviso that Mr. Tobin may be put on parole after serving half of his sentence. The amendment was translated and transmitted to the Minister by fax on the 29

^th

March, 2006.”

(Emphasis supplied)

But this situation was not satisfactory to the Central Authority, or became unsatisfactory to him as the detail of Mr. Tobin’s case emerged, in his points of opposition. Accordingly, on the 21^st May, 2010, a Mr. John Davis of the Department of Justice wrote to Dr. Nemeth-Bokor and said, insofar as is relevant:

“The respondent (i.e. Mr. Tobin) claims that the E.A.W. does not comply with s.11(1)(g)(iii) of the E.A.W. Act, 2003 in that it does not set out the penalties of which the sentence consists of (sic). This appears to be a reference to the fact that the E.A.W. does not record that the final eighteen months of the three year sentence were ‘suspended’ (using our terminology) by the Pest County Court of Second Instance.

The variation of sentence at Second Instance is not referred to on the face of the E.A.W. Please confirm whether the sentence was varied at Second Instance and whether this is the sentence for which the respondent’s surrender is sought?”

Mr. Davis requested a reply to his letter by the 18^th June, 2010, “at the very latest”.

On the 14^th June, 2010, Dr. Nemeth-Bokor replied as follows:

“The fact that the Pest County Court as Court of Second Instance established in its judgment that following the service of half of the sentence, Tobin may be conditionally released, means only that the earliest date of the possible release may come into light following the service of eighteen months” (sic).

“Taking into account the above it has to be stated

that the sentence has

not

been varied at Second Instance, only the earliest date of the possible release has been established and at the same time the judgment [at First Instance] passed by the Budakornveki Court on 7 May, 2002, has been approved”.

(Emphasis in original)

The learned trial judge, and the State lawyer, Mr. Davis, perhaps not surprisingly, considered that the sentence as it stood after the Second Instance hearing was one of three years with eighteen months suspended. But this not clearly not so, and that was common case on the hearing of this appeal.

From the foregoing it appears to me firstly that the four European Arrest Warrants are not internally consistent on the question of the sentence. Secondly, the affidavit of Dr. Nemeth-Bokor, quoted above, states that the Court in Hungary “amended the warrant to reflect the findings of the Pest County Court, the Court of Second Instance [which]… did not state that the sentence imposed on Mr. Tobin had been amended… by the adding the proviso that Mr. Tobin may be put on parole after serving half his sentence”.

But the same person’s letter on the 14^th June, 2010, states clearly that “the sentence has not been varied at Second Instance…”.

The legal nature of a sentence which has been amended but has not been varied, entirely eludes me. It is a contradiction in terms.

In my view, the mandatory provisions of the Irish legislation have not been complied with. Even an important Hungarian Civil Servant holding a doctorate in law appears confused as to whether the sentence imposed by the Court of First Instance has been “amended”, as she stated in her Affidavit, or has “not been varied at Second Instance” as she stated in her letter to the Irish authorities of 14 June, 2010. It does not seem to me that these statements can both be true.

If, as asserted in the third warrant issued by the Hungarian authorities “Tobin Francis Ciaran may be released on parole after having served one half of his imprisonment sentence”, that important matter is then wholly omitted in the warrant on which his surrender is now sought.

Moreover by virtue of s.2A of the European Arrest Warrant Act (inserted by s.72(a)) of the Criminal Justice (Terrorist Offences) Act, 2005, “if any of the information to which s.1A refers is not specified in the European Arrest Warrant, it may be specified in a separate document”, or otherwise. The affidavit and letter of Dr. Nemeth-Bokor are apparently produced under this section.

This means that at any time up to the close of the appeal hearing it would have been possible for the applicant to clarify this confusion which had been fully ventilated by that time. But no such clarification was offered, “in a separate document”, or at all, other than the contradictory documents discussed above.

Accordingly, to summarise: the first two warrants referred to a sentence of three years without qualification. The third permitted release on parole after half that period. This alteration was said by the Hungarian State’s expert witness to because the original warrant “did not state that the sentence imposed on Mr. Tobin had been amended by the [Court of Second Instance]”.

But if this is so, that amendment was simply deleted from the fourth warrant, issued more than four years after the first one and three years after the warrant referring to early release. No clarification of this has ever been offered except the Hungarian lawyers cryptic statement that the sentence, though “amended” had not been “varied”. These statements are inconsistent, and utterly uninformative. I do not know “the penalties of which the sentence consists”. Neither does the Irish State, or Mr. Tobin himself or his family.

Even apart from the statute I would consider this a wholly unacceptable state of vagueness. In Ireland a prisoner is entitled to know his sentence with absolute precision and on being lodged in prison is entitled to be informed of his date of release. I consider this to be, not merely a statutory requirement, but an essential incident of a deprivation of liberty in accordance with law. A specific statement of “the penalties of which that sentence consists” is required by law to be part of the European Arrest Warrant. This requirement has not been complied with. I would therefore decline forcibly to deliver Mr. Tobin to Hungary on this ground alone.
Detailed chronology.
There follows a detailed chronology of the events from the date of the accident, on the 9^th April, 2000 until the appellant felt compelled to surrender his bail on the 9^th November, 2011. This chronology, in a very similar form, was presented on the hearing of the appeal and I did not understand it to be in any way dissented from.
30 November 1997 Respondent moves to Hungary.
9 April 2000 Date of Accident.
10 April 2000 Respondent attends at Police Station and gives
statement.

28 August 2000 Respondent writes to Police seeking return of passport.
19 September 2000 Respondent departs for Ireland.
9October 2000 Respondent returns to Hungary.
November 2000 Respondent due to return to Ireland.
7 June 2001 Respondent furnished with indictment.
14 June 2001 Respondent writes letter to be passed on to Court asking that his presence be excused.

19 June 2001 Original trial date.

April 2002 New Trial date.

7 May 2002 Date trial ultimately proceeds.

8 November 2002 Appeal Court decision handed down.
1 May 2004 Hungary joins EU.
5 May 2004 Hungary designated under 2003 Act.
12 October 2004 International Arrest Warrant issues.
April 2005 (date unspecified) First Warrant issues.
16 June 2005 First Warrant transmitted to Minister.
27 April 2005 Date on face of Second Warrant.
20 December 2005 Application to endorse First Warrant.
12 January 2006 Arrest of Respondent on foot of First Warrant.
29 March 2006 Second Warrant delivered to Minister.
13^th April 2006 Third Amended Warrant delivered.
19-20 December 2006 Application for surrender heard by High Court.
12 January 2007 Application refused by High Court.
30 January 2007 Notice of appeal lodged on behalf of the Minister.
3 July 2007 Hearing of Appeal by the Supreme Court.
Application for surrender rejected.

25 February 2008 Reserved judgment delivered by Supreme Court.

21 July 2009 Criminal Justice (Miscellaneous Provisions) Act 2009
enacted by the Oireachtas.

25 August 2009 Relevant sections of 2009 Act come into force
(S.I. 330 of 2009).

17 September 2009 Date of issue on face of fourth Warrant.

14 October 2009 Warrant endorsed by High Court.

3 November 2009 Text of 2009 Act published.

10 November 2009 Respondent is arrested.

21 May 2010 Letter from Central Authority, Department of Justice
to Ministry of Justice Hungary “The Respondent claims
that the EAW does not comply with section 11 (1) (g)
(iii) of the EAW Act, 2003 in that it does not set out
the penalties of which the sentence consists of. This
appears to be a reference to the fact that the EAW
does not record that the final 18 months of the three
year sentence were “suspended” (using our
terminology) by the Pest County Court at second
instance.
The variation of sentence at second instance is not
Referred to on the face of the EAW. Please confirm
Whether the sentence was varied at second instance
And whether this is the sentence for which the
Respondent’s surrender is sought?”

14 June 2010 Letter from Ministry of Justice
Hungary to Central Authority “the duration of the
Remaining imprisonment sentence to be served is
3 years.

22 June 2010 Case at hearing in High Court.

23 June 2010 Case at hearing in High Court.
24 June 2010 Case at hearing in High Court.
22 July 2010 Case at hearing in High Court.
11 February 2011 High Court orders surrender of Respondent.
9 March 2011 High Court certifies appeal raises points of law
of importance.

9 November 2011 Respondent surrenders bail.

March 2012 Hearing of Second Appeal to Supreme Court.

Analysis of Chronology.
The extraordinary length of time this case has taken to fail to achieve finality is, in itself and as an aspect of the abuse of process which the appellant claims, one of the salient features of this case. It is important to see how the twelve years which has intervened between the accident and the present state of the case is made up.

From the accident to the trial in Hungary, a period of twenty-five months elapsed (April 2000 to May 2002). From the trial to the issue of the First European Arrest Warrant, a further period of thirty-seven months elapsed (May 2002 to June 2005). From the issue of the Arrest Warrant to the first hearing in the High Court of the application to have Mr. Tobin forcibly deported to Hungary, a period of about eighteen months elapsed (June 2005 to December 2006). The State’s application was dismissed in an ex tempore judgment subsequently reduced to writing. From the hearing in the High Court to the first appeal heard in this Court, a further seven months elapsed (December 2006 to July 2007). The appeal, too, was dismissed at the hearing and reasons were delivered in February 2008. From the dismissal of the State’s appeal to this Court to the coming into force of the new statute upon which the present application is based, a period of twenty-five months elapsed (July 2007 to August 2009). From the enactment of the new law to the second arrest of the applicant, a period of about three months elapsed (August 2009 to November 2009). From the second arrest of the appellant to the hearing of the second application for his surrender in the High Court, a period of about eight months elapsed (November 2009 to June 2010).

From the second High Court hearing of the State’s application to the judgment of the High Court, a period of about seven months elapsed (July 2010 to February 2011).

From the High Court’s certification that the appeal raised a point or points of law of exceptional public importance to the hearing of the appeal in this Court a further period of twelve months elapsed (March 2011 to March 2012).

The total period of time elapsed, as chronicled above, is 145 months, or just over twelve years. To put this in more human terms, during this time the appellant went from being a man of thirty-six to a man of forty-eight and during the whole of that time he had to deal with the trial or one stage or other of the attempts forcibly to deport him to Hungary in being or pending against him. The period represents the bulk of the duration of his marriage, which took place in 1993. It represented all but nine months of the life of his son, and the whole of the life of his daughter. It represents a quarter of the appellant’s entire life and approaching one half of his adult life. His children have spent the entire of their sentient lives under a severe threat that their father, who is greatly involved in their lives, education and recreational activities, would be led away and forcibly deported to what is to them a strange country.

It is difficult to believe that this is not a gravely disturbing experience, that it has not blighted their childhoods, and that it will not sour their recollections of childhood in the future. I hope it may have no worse consequence. But it is totally inconsistent with that sense of security which is an essential for the healthy development of children and which all parents endeavour to provide for their offspring. The authorities in this case have felt obliged to destroy the security of these childrens’ childhood. Perhaps they have good reason for doing so, as they claim.

Responsibility for delay.
None of the enormous lapse of time chronicled above can be laid at the door of the appellant. He was the defendant or respondent at all stages of all of the litigation, whose pace and repetition was dictated at all times by his opponents.

By far the single longest period of delay - forty-four months or just short of four years in aggregate - was caused by the misconceived attempt forcibly to deliver Mr. Tobin on the specious ground that he had fled from Hungary. There was never any evidential support for that proposition. If the State did not know that, such ignorance must be due to negligence of a dramatic sort. If they did know it then they maintained proceedings which they knew to be based on a falsity. While it is possible that some extraordinary degree of inattention, total failure to analyse the facts of the case, or deficient information from the requesting State may have prevented their knowing positively that Mr. Tobin did not flee from Hungary, no such excuse could be available after Mr. Tobins “Points of Opposition” and certainly, after the hearing in the High Court when the evidence established that he did not flee so clearly that the learned High Court Judge (Peart J.) dismissed the application ex tempore. Likewise, the Supreme Court announced its decision to dismiss the appeal at the conclusion of the hearing, reserving the delivery of a reasoned judgment.

On the hearing of this appeal, as stated elsewhere, the State fully acknowledged that Mr. Tobin had been entitled to win Tobin 1. This concession was naturally taken up by Mr. Brian Murray S.C. who said that it meant that “the State had put Tobin through the entire process of the law, including an appeal to this Court, in full knowledge of what the law was”. He further said that they had appealed even after the evidence heard in the High Court must have made it perfectly clear that there was no scope for the contention that Mr. Tobin had “fled” Hungary. Having lost the case, he charged, they “changed the rules and came after him again”.

Mr. Murray pointed specifically to para. 83 of the State’s written submissions on appeal, where the concession referred to above was made, and said with some emphasis and indeed some asperity that the State had not seen fit to say exactly when they had come to the conclusion that the contention they advanced in the High and Supreme Courts was unstatable. Despite the plain challenge to say when that was, the State remained at all times completely silent on the topic.

The attempt to blame the Oireachtas.
What seems to me most remarkable about this aspect of the case is that, in oral argument on the hearing of this appeal, the State (oddly and unprecedentedly) attempted to blame the legislature for the difficulty. The “fled” requirement, they said, “should never have been there in the first place”. It is not necessary or appropriate for this Court to come to any conclusion as to whether that requirement should, or should not, have been in the statute enacted in 2003 but it is plain that the State, like the Court, and like Mr. Tobin, must live with the Act as actually enacted by the Oireachtas. The plain fact is that the Central Authority initiated the proceedings in Tobin 1 fully aware of what the statute said and then, or not long afterwards, became affirmatively aware that there was no evidence whatever to ground the proposition that Mr. Tobin had “fled” from Hungary. The Authorities now accept that this is so but, despite a challenge in the plainest terms, declined to state when they came to that view. No doubt there is good reason for that reticence.

I say that the respondent attempted to blame the legislature for the difficulty which arose because, in the respondent’s submissions, the inclusion of the reference to “fled” in s.10 of the 2003 Act is said to have been included “in error”. The submissions then go on to say:

“It should not have been there in the first place and had the Framework Decision been correctly given effect to in the Act of 2003… the respondent would have been a person in respect of whom an order for surrender had been made.”

It is very important to state that the contents of s.10 of the Act of 2003 were not something which took the authorities by surprise during the hearing of their first application. On the contrary, that provision had been expressly relied upon by Mr. Tobin in his points of objection which he filed in Tobin 1. If the respondent was then of the opinion that an error had been made he could have withdrawn the proceedings and sought, if thought necessary, to amend the law. But he did not do that. The Central Authority persisted with hopeless proceedings and caused great expense to the public and distress to Mr. Tobin.

I am unhappy with the Central Authority’s attribution of this difficulty to an “error” by the legislature. This is discussed in more detail below.

Mr. Tobin, then, in 2005 and following years was confronted with proceedings for his surrender to Hungary which were at all times unstatable, and are now admitted to have been unstatable having regard to s.10 of the 2003 Act. Mr. Tobin contested those proceedings presumably because he, too, was advised that they were fatally flawed. But he did not contest them solely by relying on the absence of evidence to meet the “fled” requirement: he contested the case on other grounds as well including most of the grounds which he deployed in answer to the second proceedings. But neither the High Court nor this Court on appeal conclusively addressed those other issues because, in keeping with long standing practice, both courts decided the case on the first dispositive point, the “fled” issue.

Legal consequences of the foregoing.
It must be said that this case was argued on both sides with great legal erudition, skill, eloquence and intensity. As generally happens in a well argued case, there were important areas of agreement as well as areas of profound difference.

Thus, Mr. Brian Murray S.C., leading counsel for Mr. Tobin, did not contend that the mere fact of the proceedings and the judgments in Tobin 1 constituted a bar to the institution of further proceedings under the European Arrest Warrant Act in respect of the same Hungarian sentence. He did not, in other words, attempt to set up a res judicata. Equally, Mr. Maurice Collins S.C., leading counsel for the Central Authority, did not deny that the result which he sought would be “terribly harsh” on Mr. Tobin and his family. But he said it was required by law and specifically by the State’s international obligations expressed in Irish law by the European Arrest Warrants Act, 2003 as amended. He in effect challenged the Court - and in the circumstances of the case neither the word nor the action were inappropriate - if it was not going to deliver Mr. Tobin forcibly to Hungary on foot of the European Arrest Warrant, to provide a principled basis for declining to do so. He submitted that it was not possible to do that.

In other words, both sides acknowledged that the case was a particularly difficult one. There is no simple solution - no deus ex machina - which would allow a court easily to resolve the matter one way or another, and no precedent directly in point.

The certified questions.
In this case, after Mr. Tobin was unsuccessful in the High Court, that Court, by order of the 10^th March, 2011, certified that its decision to surrender the appellant involved a number of points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this Court.

The certified questions were:
(a) Whether it is an abuse of process and/or contrary to articles 6, 34 and/or 37 of the Constitution or otherwise impermissible pursuant to the European Arrest Warrant Act, 2003 as amended for proceedings to be instituted pursuant to that Act seeking the extradition of a person for a second time where:

(ii) The first such proceedings failed following a determination by the High Court and the Supreme Court that the appellant had not fled from the requesting State as required pursuant to the law as it stood at the time of the proceedings.

(ii) The second proceedings have been instituted following an amendment of the European Arrest Warrant Act, 2003, so as to remove the requirement that the appellant had fled from the requesting State.

(iii) The warrant on foot of which the second request was made is substantively the same as the first.

(b) Whether the provisions of the European Arrest Warrant Act, 2003 as amended, applied to convictions as imposed in States prior to their accession to the European Union.

(c) Whether s.5 of the 2003 Act as amended requires the Central Authority in establishing correspondence to demonstrate that the offence as described and identified in the warrant would in its entirety constitute an offence under Irish law and whether the offence particularised in the warrant discloses a defence under Irish law.

(d) Whether it is in breach of the right to equality under Article 40.1 of the Constitution, and family rights under Article 41 and 42 of the Constitution and Article 8 of the European Convention on Human Rights and/or otherwise contrary to the provisions of the European Arrest Warrant Act, 2003 as amended for the appellant as an Irish citizen to be extradited to Hungary in circumstances where, not having fled the jurisdiction, it is not possible to serve a sentence of imprisonment in Ireland without returning to Hungary.”

Abuse of Process.
It is fair to say that the bulk of the arguments addressed to the Court by counsel on the hearing of this appeal related to the appellant’s strong contention that the present proceedings against him are an abuse of process. The centrality of this contention was amply indicated in the appellant’s written submissions where, at para. 78, it is stated:

“It is submitted that, in the circumstances where the Minister choose to proceed with the first set of proceedings and to pursue them all the way to a final determination in this Court, in reliance on what is now argued to have been a

legislative

mistake, it would be an abuse of process to allow him to then initiate a second set of proceedings.”

The submission continued:

“It would be neither fair nor just for the Minister, having erroneously brought and maintained proceedings on foot of s.10, to be entitled to renew his application without adverse consequences or complaint of Mr. Tobin having undergone the anxiety and expense of those proceedings… being deprived of the benefit of the judicial determination he obtained from both the High Court and Supreme Court.”

Contentions of the Parties.
Mr. Tobin says that he was, to his lasting and life changing regret, involved in a traffic accident in Hungary in April, 2000 which caused the death of two children. But he maintains, and has always maintained, that this happened without any criminal act or omission or intent on his part. There was no question of drink or drugs, there was no question of very high speed, even on the prosecution version of events. There was some tentative evidence of vehicle malfunction. Mr. Tobin could not follow this up himself and his requests to the police to do so were not apparently complied with.

Mr. Tobin says he acted perfectly lawfully and in accordance with Hungarian law at all times. He says that he absented himself from the trial in Hungary in the belief that his evidence and that of his passengers provided by way of evidential statement to the Hungarian police, would be before the Court. But it was not, and the finding of the Court, set out above, demonstrates that his explanation was ignored as inadmissible.

Having perfectly legally returned openly to Ireland, he was three years later arrested, lodged in prison and had his release on bail opposed by the State (though he was in the result granted bail over the State objections).

He says that the first set of proceedings, Tobin 1, which took almost four years from start to finish were based on a proposition for which there was never any evidence - that he had “fled” from Hungary. He relies strongly on the fact that the authorities now themselves concede that they were never entitled to succeed in those proceedings. He points to the fact that they have declined to say when they became aware that they were never entitled to succeed in those proceedings, and have persisted in that significant reticence up to today.

He points to his extreme relief, and that of his family, at the successful outcome of Tobin 1. He complains that the State, quite undeterred, took two years to bring about a change in the law and then simply started all over again to seek his surrender to Hungary. He points to the extreme insecurity, anxiety and terror this has caused to him and his family. In more legal terms, he complains that this step is a mockery of his right to equality, specifically “equality of arms” since, if he had lost Tobin 1 he could not have procured a change in the law and demanded a replay. He also complains that what the State have done radically offends the notion of legal finality. He points to the extraordinary length of time that the various proceedings have taken and says that it offends his rights under the Irish Constitution and under the European Convention on Human Right. He refers to the considerable body of Irish case law on delay and to the terms of Article 6(1) of the European Convention as follows:

“In the determination of his civil rights and obligations all of any criminal charge against him, everyone is entitled to a fair and public hearing

within a reasonable time

by an independent and impartial tribunal established by law”.

(Emphasis supplied)

Mr. Tobin emphasises that, in order to protect his family and his employment (and without in any way acknowledging the justice of his conviction or sentence in Hungary), he actually offered to serve the sentence imposed on him in an Irish jail. But it transpired that, precisely because he had not “fled” Hungary this was not possible. When the State launched their second attempt, and were successful in the High Court, Mr. Tobin took the radical step of surrendering his bail and going into custody, in the hope or expectation that this period of incarceration would be taken into account in reduction of the time he would have to serve away from his family and in the (to him) strange and apparently hostile Hungarian environment if he is unsuccessful. He has been in jail since November last.

The State, on the other hand, stoutly maintain the proposition, firstly, that Mr. Tobin cannot be heard to complain about irregularity or unfairness in the Hungarian proceedings. They say that, because Hungary is a party to the European Arrest Warrant system it is to be presumed that their proceedings were fair and regular. Secondly, they say that Tobin 1 has absolutely no effect on the State’s ability to take further proceedings aimed at securing Mr. Tobin’s surrender to Hungary. They claim to be entitled to proceed as if Tobin 1 had never happened. They strongly maintain, relying on certain authorities mentioned below, that an extradition or rendition application is a procedural matter only and gives rise to no vested rights in a person who is successful in resisting such an application against him. Alternatively, they say, if such a victory does give rise to a vested right, that right is only a right not to be forcibly rendered to another country while the law which enabled one to win remains unchanged. The State does not deny the distress, grief, fear and insecurity caused to Mr. Tobin and his family but says it is legally irrelevant. Such emotions arise in every case that leads to imprisonment, they say.

The authorities very strongly and intensely argued against the application of the abuse of process doctrine to cases under the European Arrest Warrant system. Specifically, they said that “a wide ranging abuse of process jurisdiction” was difficult to reconcile with the provisions of the Framework Decision and the European Arrest Warrant Act. Mr. Maurice Collins strongly argued that no principle had been enunciated which could reconcile the exercise of an abuse of process jurisdiction with the appellant’s acknowledgement that there was no res judicata.

It is difficult to convey in a written judgment the deep and insistent intensity with which this point was argued.
Continuing, Mr. Collins said that the abuse of process argument was no more than a generalised (and legally unprincipled) assertion of ordinary unfairness. He approached making a “floodgates” argument, saying that to apply a doctrine of non-specific unfairness would risk introducing an element of uncertainty which is inconsistent with the requirement that the law should be of general application intelligible and predictable.

This latter point could be urged against the application of the abuse of process jurisdiction in any area of the law. First, as we shall see, it is well established not least in the area of commercial law. Nor, with respect, is there any question of the institution of “a wide ranging abuse of process jurisdiction”. Though recent cases clearly establish the existence of the jurisdiction and its actual use across wide variety of legal contexts, the number of applications is not large and the grounds on which the abuse of process jurisdiction can be invoked are the reverse of common or wide ranging. The authorities are considered below, and that of Bolger v. O’Toole appears clearly to have acknowledged the existence of the jurisdiction in an extradition context. The case of Johnson v.
Gore Wood, discussed below, shows clearly that “… there will rarely be a finding of abuse unless the later proceedings involve what the Courts regard as unjust harassment of a party”.
It is, I hope, not unreasonable to expect that cases where unjust harassment by a public authority can plausibly be argued will be few and far between. A jurisdiction whose exercise involves the demonstration of this rarity cannot be described as “wide ranging”. I did not understand Mr. Collins to contend for the proposition that in no circumstances whatever could the abuse of process jurisdiction be exercised in the context of a European Arrest Warrant but, if that were contended I would reject it on the grounds that this is an essential jurisdiction for the Courts to maintain at their disposal to deal with rare, but not inconceivable or unheard of, cases. It would in any event be difficult for the State to contend that no abuse of process jurisdiction whatever existed in this area because one of the cases upon which they place prime reliance specifically acknowledges the existence of this jurisdiction in Extradition cases.

The State, as we have seen, does not deny that the present proceedings, especially if they have the result intended by the Central Authority, are “terribly harsh” on Mr. Tobin and his family. But this, they say, does not entitle him to relief. He was successful in Tobin 1, according to the State, only because the legislature had quite wrongly inserted into the European Arrest Warrant Act, 2003 a provision which should never have been there (according to the State). Now that this has been removed the Central Authority is entitled again to seek Mr. Tobin’s surrender from the State, notwithstanding all that has gone on over the past one hundred and forty five months, or twelve years. There is no statute of limitations applying to applications of this sort, the State assets.

Before discussing the legal authorities on these issues it may be as well to reiterate that three years and eight months of the time elapsed was devoted to the initiation and hearing of the Tobin 1 proceedings, to include appeal. Thirty-seven months, or three years and one month, elapsed between the trial in Hungary and the issue of the first European Arrest Warrant. Twenty-five months or two years and one month elapsed between this Court’s decision in Tobin 1 and the publication of the new law under which Mr. Tobin is now pursued.

Authorities.
(i) Is abuse of Process available?
The principal authority relied upon by the State for the proposition that the dismissal of proceedings in the nature of extradition proceedings is no bar to the bringing of another such application is Bolger v. O’Toole (Supreme Court, unreported, 2^nd December, 2002).

In that case, the applicant, Mr. Bolger had been successful in the District Court in defeating an application for his extradition to England. This was because, in the words of the ex tempore judgment of Denham J. (as she then was) “technical issues were raised successfully in relation to the original set of warrants”. A new set of warrants subsequently issued and Denham J. held:

“There is now a new set of warrants for consideration by the Courts. The applicant may also raise wider issues, as he is entitled to. I am not satisfied that the case law submitted by counsel for the applicant, such as

Henderson v. Henderson

advance his case on the

res judicata

issue. As to the issue of delay, that was not a matter on the judicial review nor was it considered in the High Court. Consequently it is not a matter for consideration on this appeal”.

Amplifying this, the learned judge said:

“The warrants are new and any issues which may be raised will be different. The fact that the applicant was discharged by the District Court on foot of a previous set of warrants where there two errors does not exclude a fresh set of warrants being produced and being endorsed. New warrants which have been endorsed now arise to be considered by the District Court. It is for the District Court to exercise its jurisdiction under the Extradition Act, 1965 as amended. The fact that a previous set of warrants existed and on which the applicant was discharged does not

prima facie

exclude the production and endorsement of a second set of warrants. It may well be that for good reason, in the circumstances of a case, a court may determine that an application for rendition should be refused. Thus,

if it were an abuse of process the application

may fail. In this case the applicant has been refused the leave to make a specific application grounded on specified issues of abuse of process. However, that would not be a bar to any subsequent application for

habeas corpus

on different issues. Similarly,

issues such as delay

, which may arise in accordance with the legislation as well as the Constitution,

are separate issues which may be raised

. However these matters are not before this Court.”

(Emphasis supplied)

It thus appears that the case of Bolger v. O’Toole held only that the dismissal on “technical” grounds of an application for extradition under the 1965 Act, did not create a res judicata. Apart from this, the case is manifestly distinguishable from the present one because there was in Bolger no question of a new statutory provision, but simply of new warrants with technical defects corrected. As mentioned above, Mr. Tobin in this case does not rely on res judicata, but, primarily, on abuse of process. The passage emphasised in the longer citation above from the judgment of Denham J. specifically preserves the right to seek to defeat surrender on the ground of abuse of process, or delay.

In view of the lengths of time mentioned in the chronology of this case, set out above, it is rather ironic to consider the last paragraph of the judgment of Denham J. in Bolger. It is as follows:

“I would like to voice concern at the delay which has occurred between the granting of leave by the High Court on the 8

^th

November, 1998, the judgment of the High Court on the 8

^th

June, 2000 and the appeal from that order which has been made to this Court today”.

It would be observed that the total period described by Denham J. was of two years and one month. The time elapsed in this case extends for over twelve years, about six times as long.

Although United Kingdom authorities are not of course binding on this Court, it appears to me that the legal position which emerged have after the Bolger case is not dissimilar to that obtaining in the neighbouring jurisdiction. The issue was considered in the Court of Appeal for England and Wales in Office of the Prosecutor General of Turin v. Franco Barone [2010] EWHC 3004. There, addressing much the same issue, Lord Justice Moses said, at para. 29:

“I quite accept that the mere fact that a previous request for extradition… had failed is not of itself a basis for refusing a fresh request for surrender, as it might be more accurately described, under the new regime. It is possible to envisage just the same circumstances as occurred in

Kashamu

, in which a request failed for non-disclosure but was repeated under the new regime. But it does not follow that the previous consideration of the Court of the requested State is irrelevant.”

In that case, Lord Justice Moses discounted a complaint of delay on the grounds that the bulk of it had been brought about by the requested person, by his action in escaping from prison. The State, he said, had done nothing to foster the view that he was safe from extradition. The contrast with this case, where a much longer delay took place wholly without any fault on the part of the applicant, and where a request for his surrender was rejected by the Supreme Court, is an obvious one.

(ii) Was there an abuse of process?
Abuse of process is a many headed concept whose manifestations range from the deliberate maintenance of legal proceedings without of probable cause as in Dorene v. Suedes [1982] ILRM 126 to a ham fisted or unthought out conduct of litigation, particularly by making two or more actions where one would do, which tends to oppress the other party and to cause him expense and/or distress.

In recent years, the case of Henderson v. Henderson (1843) 3 Hare 100, has enjoyed a remarkable revival, and has probably been more cited in the past two decades than in the years immediately following its delivery. Thus, in AA v. the Medical Council [2003] 4 IR 302, an action by a doctor against the Medical Council seeking to prevent an inquiry into his conduct was dismissed on the ground that the doctor was now seeking to bring forward a point which he could have raised in previous litigation which he had undertaken against the Medical Council in relation to the same inquiry.

In that case the Court extensively discussed Henderson v. Henderson abuse of process and the principles which underlie it. There is an extensive citation from the English case of Johnson v. Gore Wood and Company [2002] 2 AC 1. The judgment is that of the late Lord Bingham, successively Lord Chief Justice and Senior Law Lord in the neighbouring jurisdiction. He said:

“

Henderson v. Henderson

abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter.”

Lord Bingham also said:

“I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceedings involve what the Court regards as unjust harassment of a party”.

In another English case from the same era, Woodhouse v. Consignia PLC [2002] 1 WLR 2258, Lord Justice Brooke discussed the concept of abuse of process in the following terms:

“… at least as important is the general need, in the interests of justice, to protect the respondents to successive applications in such circumstances from oppression. The rationale for the rule in

Henderson v. Henderson

… is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits where one would do”.

Similarly, in Gairy v. Attorney General of Granada [2002] 1 AC 167, speaking of the principle in Henderson and its offshoots Lord Bingham said, at p. 181 “these are rules of justice intended to protect a party… against oppressive and vexatious litigation”.

In my judgment in AA I refer to the assistance I had derived from an illuminating article by Mr. Justice Handley of the Court of Appeal in New South Wales, A closer look at Henderson v. Henderson (2002) 118 LQR 397. I also made the general observation that:

“Rules or principles so described cannot, in their nature, be applied in an automatic or unconsidered fashion”.

I reiterate that. In this case it cuts both ways, so to speak. It is well established that the dismissal on “technical grounds” of an application for extradition does not constitute a res judicata, so as to prevent a second application in respect of the same offence. But equally, it cannot be said that that is the whole story: as Bolger itself indicates, the question of whether or not there has been an abuse of process in an individual case remains open as does the possibility of claiming relief on the ground of delay. In a suitable case delay or sheer lapse of time may be part of what goes to make up an abuse of process.

Subsequent to the decision in AA v. The Medical Council, Henderson and Henderson principles, as subsequently interpreted, were applied in the context of an ex parte application. There are various dicta of great significance for the present case in the judgments in In Re Vantive Holdings [2009] 2 IR 118.

The context of Vantive was an application to appoint an Examiner to a company pursuant to the Companies Act, 1990. This application was made in the High Court, refused there, and appealed to the Supreme Court where the appeal was dismissed. Very shortly afterwards the petitioner sought to present a second petition to the High Court which provided a good deal of information which was not presented on the first occasion. The High Court allowed the presentation of the second petition but an affected bank appealed this to the Supreme Court. The Supreme Court noted that the Act did not prohibit the presentation of a second petition for the appointment of an Examiner. The judgments referred to the rule in Henderson v. Henderson as applying to proceedings between parties and pointed to the distinction which arose in the case of an ex parte application: the protection of a party from being harassed by successive legal proceedings does not arise in that context. However, Murray C.J. continued, at para. 24:

“Nonetheless there still remains the inherent jurisdiction of the Court to protect the integrity of the due process of the administration of justice and the finality, in principle, of a judicial decision.

Underlying the rule in

Henderson v. Henderson

is the policy of the need to protect the due and proper administration of justice from an abuse of process and to uphold the principle of finality in legal proceedings”.

Murray C.J. went on to cite the passage I have cited above from Johnson v. Gore Wood. He also cited from In Re Greendale Developments Limited [2000] 2 IR 514 the dictum of Hamilton C.J.:

“… the finality of proceedings both at the level of trial and possibly more particularly at the level of ultimate appeal is of fundamental importance to the certainty of the administration of law, and should not lightly be breached”.

Murray C.J. concluded that in the circumstances the bringing of the second petition “… constitutes an abuse of the process in relation to the appointment of examiners under the Act of 1990 and prima facie is a bar to the second petition proceeding”. (para. 30)

In her concurring judgment, Denham J. (as she then was) said at para. 89:

“There are exceptional circumstances, in the interests of justice, where a matter may be revisited. But the fundamental principle is that it is in the public interest and for the common good that there should be finality in litigation. An aspect of this principle is the party should not be exposed to multiple litigation and

should have closure on an issue

. Also there is the public interest that the limited resources of the Courts should be used justly and with economy.” (Emphasis supplied)

Expanding this, she continued:

“The interests of justice require that there be finality of litigation. If a petitioner were entitled to make a second or further petition on the general ‘overriding consideration’ of legislative policy, as referred to previously, it would commence an era where multiple petitions would become the norm. A petitioner could the regard a primary petition as a stalking ground for advice on proofs from the Court. Clearly this was not envisaged by the legislation, nor is it consistent with fundamental principles of law”. (para. 92)

The significance of Vantive is that it is an example of the application of the principles underlying the decision in Henderson, and the cases which followed it, and which were grounded on the need to protect defendants from multiple litigation, to a situation where the litigation in question was being conducted ex parte, so that there was no defendant or respondent to be protected. It was done in the interest of the integrity of the Court process, and in the interest of the need for finality in litigation, so that the litigants could have “closure” as Denham J. put it.

Since this principle applies in the interests of limited companies, their creditors, of statutory corporations and other non-human legal persons, I would consider that it applies a fortiori to a natural (as opposed to an artificial) person with all the feelings, vulnerabilities, and rights which attach to his status as a human person.

Finally, and in the specific context of proceedings under the European Arrest Warrant, I wish to refer to the recent English authority, Hamburg Public Prosecutors Office v. Altun [2011] EWHC 397. This was a case where rendition was refused on the grounds of double jeopardy. This had been raised by the defendant and it was for him to establish it. The prosecutor said that he was unable to rebut the defendant’s contentions at the time, and therefore did not oppose discharge, but reserved the right to issue a further European Arrest Warrant when it was in a better position to proceed. The United Kingdom Courts again refused to deliver the person on the ground of double jeopardy.

On appeal, Ouseley J. said:

“If [the double jeopardy point were] good as a point it was a complete bar to extradition and no fresh warrant could alter that. Only further evidence from the prosecutor could alter the decision. The issue was ruled on: the prosecutor did not take the step of withdrawing the warrant or trying to obtain a further adjournment to await what he hoped would be better evidence in due course. The prosecutor should have brought forward all the evidence which he relied on to defeat the defendant’s case; the case was bound to succeed on the then available material.

It was for the prosecutor to make sure that he had what he needed when he instituted and continued to finality those proceedings on the European Arrest Warrant. It was after all his choice to bring the proceedings when he did

. It was not open to him thereafter to issue a fresh warrant relying on new evidence to counter the defendant’s case on double jeopardy, even if that evidence was not to hand when the first warrant was discharged”.

The circumstances of that case are very different to the present one. But a number of the considerations mentioned by the learned judge are directly relevant. In particular I would refer to the statement that:

“It was for the prosecutor to make sure he had what he needed when he instituted and continued to finality [the first proceedings]. It was after all his choice to bring the proceedings when he did”.

In the present case, too, it was the applicant’s decision to institute the proceedings when they were in fact instituted, and instituted in full knowledge of the state of Irish Statute Law at that time.

I wish to emphasise certain phrases from the cases just cited, firstly the reference in Johnson v. Gore Wood, to “the underlying public interest that there should be finality in litigation and that a party should not be twice vexed in the same matter”. Secondly, the fact that it is unnecessary “before abuse may be found, to identify any additional element such as collateral attack on a previous decision, or some dishonesty…”. Thirdly, to the need “to protect the respondents to successive applications… from oppression” and fourthly, the emphasis on the desirability “… that litigation should not drag on forever and that a defendant should not be oppressed by successive suits where one would do”, and the important legal value of “finality”, so as to provide “closure” for the parties.

It appears, therefore, to be well established that abuse of process of the sort alleged here is separate and distinct from res judicata, which is not relied upon in the circumstances of this case. It is, instead, a separate but conceptually related weapon in the armoury of the Courts to protect a litigant from oppression or harassment, to use two of the words employed in the cases. It is necessary that the Court should have such powers, over and above the strict rules of res judicata, because the right to be free of harassment and vexatious litigation, and to fair procedures and equality of arms in litigation, are rights of a Constitutional nature and arise fundamentally from respect for the dignity of the human person. It is salutary to recall the important if general words spoken in this Court by
Ó Dálaigh C.J. in The State (Quinn) v. Ryan [1965] IR 70, at 122:

“It was not the intention of the Constitution in safeguarding the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary that follows no-one can within impunity set those rights at nought or circumvent them, and that the Courts powers in this regard are as ample as the defence of the Constitution requires”.

A specific application of those principles arose in The State (O’Callaghan v. h-Úadhaigh [1977] IR 42. There, Finlay P. (as he then was) was dealing with a case of a defendant who, as a result of an application for a direction at the end of his criminal trial in the Central Criminal Court, was about to succeed in relation to all but one of the numerous charges against him. This was clear from the learned trial judge’s expression of his view of the law. In that situation, the State entered a nolle prosequi bringing the trial to an end, and subsequently sought to prosecute O’Callaghan again on the same charges, hoping for a new trial before a different judge where it might be possible to avoid the consequences of the learned trial judge’s view of the law. It would have been possible to deal with that case on a purely technical basis related to the requirements for the entry of a nolle prosequi but Finlay P. addressed the issue in principle, as follows:

“If the contention of the [State] is correct, the [defendant] having undergone that form of trial (and remand awaiting trial) and having succeeded in confining the issues to be tried, would be deprived of all that advantage by the simple operation of the statutory power on the part of the Director of Public Prosecutions. In that way, the [defendant] would have the entire of his remand awaiting trial set at nought and he would have to start afresh to face a criminal prosecution in which the prosecution, by adopting a different procedure, could avoid the consequences of the learned trial judge’s view of the law. No such right exists in the accused: if the trial judge makes decisions adverse to the interests of the accused, the latter cannot obtain relief from them otherwise than by an appeal…

It seems to me that so to interpret the provisions of s.12 of the Act of 1924 as to create such an extraordinary imbalance between the rights and powers of the prosecution and those of the accused respectively, and to give the Director such a relative independence from the decision of the Court in any trial, would be to concur in a proposition of law that would singly have failed to import fairness and fair procedures”.

I regard this as an illuminating passage and would very respectfully adopt what was said by the learned judge. I would particularly emphasise his invocation of the concepts of “an extraordinary imbalance between the rights and the powers of the prosecution and those of the accused respectively”; to the necessity to avoid such an imbalance in order to ensure fairness and fair procedure. I would also adopt the emphasis on the need for parties to litigation to be in a position of equality one with the other. This is the concept referred to in the jurisprudence of the European Court on Human Rights as “egalité des armes”. It is important to bear in mind that here, too, Mr. Tobin would have no right to demand a rehearing, still less a change in the law, if he had been displeased with the result of Tobin 1.

In the cases cited above, the beneficiaries of a rule against vexatious litigation were all limited companies, Banks or statutory bodies, such as the Medical Council. In those civil cases, accordingly, the beneficiaries were all legal persons who might suffer inconvenience or expense and also, perhaps, uncertainty in their ability to carry out their functions, but could not of their nature suffer deep emotional distress, anxiety or terror, fear for family or a near relation, fear of loss of employment and other emotions which are peculiar to human persons. Emotions of this latter sort are, of course, cognisable by the law but have in fact been recognised largely in criminal cases. The policy basis for a rule against double jeopardy in such cases is in my view best expressed in an American case from 1957, Green v. United States (1957) 355 US 184.

Having described the rule, Mr. Justice Black continued, at pp 187-188:

“The underlying idea, one that is deeply engrained in at least the Anglo-American system of jurisprudence is that the State, with all its resources and power, should not be allowed to make repeated efforts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that, even though innocent, he may be found guilty”.

The Green case concerned criminal trials and the other cases cited above related to civil actions or applications. This present proceeding is, strictly speaking, neither a civil action nor a criminal trial. In its incidents however, it is much more closely akin to a criminal than to a civil proceeding. A person whose surrender is sought is arrested and lodged in prison and if he obtains his liberty on an interlocutory basis, it will be on bail. If unsuccessful, he will be committed to prison to await his involuntary departure to the requesting State and, if so rendered, he will be imprisoned. In the course of the argument on the present appeal Mr. Murray S.C. stressed that this case - Tobin 2 - was unique even amongst European Arrest Warrant cases, but it too is of course more closely akin to a criminal than to a civil proceeding.

Accordingly, and on the basis of Green, I would add to the list of topics and values to be considered in assessing whether a particular proceeding is an abuse of process the following: the massive disparity of resources and power between the State and an individual and the vulnerability of the individual and his family to embarrassment and expense; their vulnerability to “ordeal”; and the need to avoid “compelling him [and them] to live in a state of continuing anxiety and insecurity”, and instead to provide “closure” in the phrase of Denham J.

Application to the present case.
In my view, all of the considerations mentioned above are relevant to the present case. I refer particularly to the proposition that there should be finality in litigation and that a party should not be vexed twice in the same matter; that it is an abuse to subject a party to unjust harassment; that the appellant must therefore be protected from oppression; that it is important in the public interest, as well as that of the parties, that litigation should not drag on for ever; and that a defendant should not be oppressed by successive suits where one would do. Similarly, I agree that these rules are rules of justice. They arise with particular force where there is a gross disparity in resources and powers between litigants; this is seen in this case with particular force because the State waged unending litigation from a bottomless purse whereas the appellant had to fund himself. Similarly, and for the reasons set out above, I believe that the term “ordeal” is entirely apt to describe what the appellant and his family have been put through in the years since 2000, and since 2004 in particular, and that the least part of this ordeal is the embarrassment and expense to which the appellant has been put. It is, in my view, quite understandable that, after winning Tobin 1, the appellant though living in a supportive community in South County Meath, decided to move to Dublin in an attempt to provide a fresh start for his family in a new environment and to re-assure his very elderly mother who lived nearby. It requires little imagination to think of the reaction of these people to his re-arrest in 2009. It requires no imagination at all to imagine the insecurity which this caused to children of ten and nine years respectively at the time, and the unhappiness caused to the adult members of the family on that account. They were indeed, in my judgement, “compelled to live in a continuing state of anxiety and insecurity”, as it was phrased in Green v. United States above.

It is of course true to say that the operations of the law often cause distress and anxiety, not least to people who are not themselves the subject of proceedings but whose sense of family, of security, and even of basic material support, may be destroyed by the operation especially of the criminal law. In many instances, that simply cannot be helped, as Mr. Collins correctly said.

But it could have been helped in this case. There was absolutely no compulsion on the Central Authority to initiate proceedings in 2005. Any consideration of those proceedings by a competent lawyer would have led to the conclusion, which is now accepted, that they were doomed to fail. The attitude of the authorities was grounded, at best, on a failure properly to consider the case. This has caused enormous and uncompensatable “ordeal” to Mr. Tobin and his family, and is completely inconsistent with the proposition that there should be a finality in litigation. The notion that the State should be able to bring about a change in the law and simply start again as though nothing had happened is one that I regard with abhorrence. It is a negation of the notion of legal finality, and of a right to “closure”.

Judges are quite used to a situation in which, by reason of the provisions of a statute, or of binding authority, one has to decide a case contrary to one’s own intuitions of justice. Mr. Justice Scalia of the United States Supreme Court has remarked that a judge who takes his oath seriously will find himself deciding against his own preferences in a significant proportion of cases. An example of this was the case of
D.P.P. v. Esther Cullen (Court of Criminal Appeal, unreported, 15^th October, 2007) where it was necessary to uphold a sentence (the “mandatory minimum sentence”) of ten years imprisonment pursuant to s.15A of the mis-use of Drugs Act on a middle aged grandmother without previous convictions, even though the sentence seemed harsh, and “much in excess of what the Court would expect to see if the ordinary principles of sentencing were applied…”. In such circumstances one can only reflect that no doubt the legislature had some competing and superior intuitions of justice in providing as it did.

But this case is in different category. Firstly, it is an entirely unique case without precedent in this country. Secondly, it manifestly occupied a period of time which is on any view excessive. Thirdly, when the reasons for this immensely prolonged course are examined they turn out to be wholly the responsibility of the applicant for Mr. Tobin’s surrender to Hungary. The circumstances in which very lengthy proceedings were launched and continued, which are now agreed to have been unstateable having regard to the term of the Act, have not in my view been fully explained. I am sure that the authorities are not motivated by any form of personal spite or ill will against Mr. Tobin. But I cannot acquit them of a desire to be seen to be almost slavish in conforming with the obligations of a subscriber to the Framework Document, and a member of the European Union, as they conceive them to be. It is this attitude, it appears to me, that has rendered them willing to extradite or deliver Irish people, or people who happen to be in Ireland, to other countries who would not deliver their own citizens if the positions were reversed. It has also rendered them gravely insensitive to the human rights of a person in the position of Mr. Tobin and his family. I consider that these latter have been unfairly and largely unnecessarily subjected to oppression and “ordeal”, that the principal reason for this - the institution and maintenance of the Tobin 1 proceedings - has never been satisfactorily explained. These present proceedings are, in my view, an abuse of process and I would decline to order the surrender of Mr. Tobin to Hungary on that account.

The application of the 2009 Act.
It was agreed that this issue turned on the interpretation of s.27 of the Interpretation Act, 2005. Insofar as relevant to this provision it states:
“(1) Where an enactment is repealed the repeal does not

…

(2) Where an enactment is repealed, any legal proceedings (civil or criminal) in respect of a right privilege obligation or liability acquired, accrued or incurred under, or an offence against or contravention of, the enactment.

But s.4 of the same Act provides:

“(1) A provision of this Act applies to an enactment except insofar as the contrary intention appears in this Act, in the enactment itself or, where relevant, in the Act under which the enactment is made”.

In the present case, I agree that it can properly be said that the outcome of the Tobin 1 proceedings was to confer or create a right, being a right not to be extradited or surrendered to Hungary so long as Irish law retained the “fled” provision. That was a right, as opposed to a privilege or immunity. It is quite different from a right never to be forcibly rendered to Hungary, despite changes in the law: the contrary was not contended. I have read the ample discussion on this point contained in the judgment of O’Donnell J. and I agree with it.

Once the effect of Tobin 1 is established as having been to create a right, however limited or transitory, the provisions of the Interpretation Act, 2005 are of decisive importance. There is no doubt that the effect of the 2009 Act is to permit, in a future case, even a person who has not “fled” to be sent back to a jurisdiction in the position of Hungary in this case. But in relation to Mr. Tobin, who had, prior to the 2009 Act, acquired a right on the sort specified above, s.27(1)(c) of the 2005 Act provides a presumption that this right is not interfered with by new legislation.

In the course of argument on this appeal it became clear that s.6(c)(ii) of the 2009 Act was a specific response to the judgment of this Court in Tobin 1. Mr. Collins S.C. for the authorities was specifically asked whether the amendment was targeted at Mr. Tobin and he rejected that proposition. Accordingly, the provision is of general application in both wording and intent so that the section mentioned does not contain any clear expression of intention to remove the specific right acquired by Mr. Tobin. But that is what it would have to do in order to disapply the presumption contained in s.27 on the basis of the general provisions of s.4.

Accordingly, I consider that the amending statute of 2009 does not have the effect of removing the right vested in Mr. Tobin as a result of the decision in Tobin 1. In this regard I agree generally with the reasoning of O’Donnell J.

I am unhappy with the Central Authority’s blaming the difficulty which arose due to the Tobin 1 proceedings on the legislature at all. Subject only to the provisions of the Constitution, the legislature is entitled to legislate as it thinks fit. It is not for any outside body to criticise them for doing this. The Central Authority may wish they had legislated in a different way but that is not a ground of criticism. The Central Authority, like every citizen, including Mr. Tobin, is bound by the legislation as it is or was until repealed or amended. Moreover, the concept of “fleeing” is not one the legislature drew out of thin air. It is specifically referred to in the Tampere conclusions, which preceded the Framework Document on the European Arrest Warrant.

Just as Mr. Tobin cannot complain that Ireland decided to implement the European Arrest Warrant system in 2003, so the Central Authority cannot complain of the terms in which the Oireachtas enacted the Statute. But the central feature is that the Central Authority knew precisely the terms of the Statute when it instituted the proceedings in Tobin 1 and appears to me to have known, not later than the time when Mr. Tobin filed his points of objection, that those proceedings were greatly flawed.

Section 37 Objection.
As set out above, this appeal raised various issues other than those disposed of in the preceding parts of this judgment. Since the issues on which I have reached conclusions are sufficient to dispose of the case, I do not propose to express any opinion on the balance of the issues. However I propose to make an observation about one such issue.

On the hearing of this appeal, Mr. David Keane S.C., who was with Mr. Murray, advanced a number of arguments to the effect that Mr. Tobin should not be surrendered by reason of the provisions of s.37 of the 2003 Act. This, insofar as relevant provides:
“37(1) A person shall not be surrendered under this Act if

(a) his or her surrender would be incompatible with the State’s obligations under

(i) The Convention, or

(ii) The Protocols to the Convention,

(b) His or her surrender could constitute a contravention of any provision of the Constitution…”.

Under this heading, Mr. Keane advanced various alleged deficiencies in the procedures relating to the investigation and trial of Mr. Tobin in Hungary. Prominent amongst these were the exclusion from evidence of the statements of Mr. Tobin and his passengers, on the ground that they had been translated by Ms. Káta Soós, daughter of Dr. Tibor Soós, a lawyer who was advising Mr. Tobin on certain complaints about the examination or non-examination in particular respects of the vehicle involved in the accident.

I wish to say only that, if the issues resolved in favour of Mr. Tobin in this judgment had been resolved against him, I might well have felt it necessary to look into these complaints. It is, of course, entirely possible that the alleged deficiencies could be fully explained. It must also be emphasised that the Court has before it only Mr. Tobin’s account of these matters because the applicant has not filed or procured any affidavit contradicting or disputing what he says.

But I do not presently consider that any consideration arises along the lines of “mutual trust and confidence” on the basis of Hungary now subscribing to the European Arrest Warrant system or being a member of the European Union (it was not such a member at the time of the accident) to exclude such enquiry. The fact is that I (and, as far as I know, the same applies to all Irish lawyers) know nothing whatever about Hungarian law, and nothing about the manner in which it is implemented and practised, anymore than one would expect an Hungarian lawyer to have any real or useful knowledge of Irish law. In those circumstances, where a complaint is made which appears to call for comment from the opposing party, it should be enquired into. There is in my view at present no basis for prescinding from this exercise on the basis of an entirely notional respect and confidence which in practice co-exists with an absolute ignorance of the system involved. But I reserve a definitive resolution of this issue to a case where it necessarily arises.

Conclusion.
For the reasons set out in this judgment, I would decline to order the delivery of Mr. Tobin to Hungary on the grounds that:
(a) Neither in the European Arrest Warrant grounding the present application, nor anywhere else, has the requesting State complied with the mandatory terms of s.11(1)(f)(iii) of the Act. Insofar as the affidavit of Dr. Klara Nemeth-Bokor, and the same person’s letter on the 14^th June, 2010 are in the nature of “separate documents” which may compensate for the deficiency in the European Arrest Warrant, I find that these documents are contradictory and inconsistent one with the other. I am gravely concerned that the reference to release after eighteen months, which was in the Third European Arrest Warrant, has vanished from the Fourth such Warrant. In the result, I simply do not know the length of the sentence which we are asked to surrender Mr. Tobin to serve.

(b) By reason of the provisions of s.27 of the Interpretation Act, 2005, I consider that Mr. Tobin is entitled to the benefit of our presumption that the amending statute of 2009 does not disturb the right vested in him as the result of the decision of the High Court and of this Court in Tobin 1. I do not consider that s.4 of the Act of 2005 operates to displace this presumption in the present case. In this regard, I agree with the judgment of O’Donnell J. in this case.

(c) For the reasons given above I consider that this second application, which came before us some twelve years after the accident to which the sentence relates, is an abuse of process. I therefore consider that it would be unjust to deliver Mr. Tobin to Hungary.

JUDGMENT of Mr. Justice Fennelly delivered the 19th day of June, 2012.

1. I write this short concurring judgment in order to express my agreement with the judgment of Hardiman J that this Court should decline to order the surrender of the appellant to Hungary on the grounds of abuse of process. I explain that I do so because of the unique history of the case and that I do not share all the reasoning of Hardiman J.

2. This is a tragic case. It originates in a traffic accident when two children met their untimely deaths by being hit by a motor car which was being driven by the appellant. The appellant was convicted by a Hungarian Court of an offence under the law of that country.

3. It is also a unique case in the short history of the European Arrest Warrant in Ireland. The appellant successfully resisted his surrender under a warrant by a judgment of this Court interpreting the Irish law which implemented the Framework Decision. The law was changed in response to that decision and a fresh warrant was issued by a Hungarian judicial authority.

4. In my judgment in the earlier case of Minister for Justice, Equality and Law Reform v Tobin [2008] 4 IR 42 (“Tobin 1”), at page 68, I described the judgment of the Hungarian court as “detailed and meticulous.” The other members of the Court agreed with that judgment. In my view it is not open to this Court to go behind that judgment or to question its correctness. While the appellant criticises the refusal of the Hungarian court to admit his statements and those of his witnesses by reason of what certainly appears to us to be an unusual procedure, it has to be remembered in considering any question of the fairness of the procedures of the Hungarian court, that the appellant, having been permitted by the Hungarian court to leave Hungary, voluntarily decided not to return to that jurisdiction for his trial and chose to be represented by a lawyer. I have to say that I respectfully dissent from those parts of the judgment of Hardiman J which criticise the Hungarian court and suggest that the appellant was not guilty of any offence. That is not a matter for this Court. Murray C.J., in delivering judgment in Minister for Justice, Equality and Law reform v Brennan [2007] 3 IR 732 at page 741 observed:

“The manner, procedure and mechanisms according to which fundamental rights are protected in different countries will vary according to national laws and constitutional traditions. The checks and balances in national systems may vary even though they may have the same objective, such as ensuring a fair trial. There may be few, if any, legal systems which wholly comply with the precise exigencies of our Constitution with regard to these matters.”

4. He accepted that the courts have “jurisdiction to consider the circumstances where it is established that surrender would lead to a denial of fundamental or human rights.” He added that: “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.” In my view the present case goes nowhere near establishing such circumstances.

5. However, I agree with Hardiman J that the Court should, in the unique circumstances of this case, decline to surrender the appellant to Hungary on the ground of abuse of process. The essence of the abuse of process alleged is encapsulated in the following question raised by the certificate from the learned High Court judge:

"(a) Whether it is an abuse of process and/or contrary to articles 6, 34 and/or 37 of the Constitution or otherwise impermissible pursuant to the European Arrest Warrant Act, 2003 as amended for proceedings to be instituted pursuant to that Act seeking the extradition of a person for a second time where:

(iii) The second proceedings have been instituted following an amendment of the European Arrest Warrant Act, 2003, so as to remove the requirement that the appellant had fled from the requesting State.

(iv) The warrant on foot of which the second request was made is substantively the same as the first.

6. As Hardiman J says in his judgment, this is an entirely unique case without precedent in this country. The surrender of the appellant was legitimately sought by the Hungarian judicial authority on foot of a European Arrest Warrant. Hungary was not responsible for the fact that there was included in the Irish Act implementing the Framework Decision a requirement that the person whose surrender was sought should have “fled” the issuing state. That legal provision was the responsibility of this State. Counsel for the appellant strongly criticised the Minister, as Central Authority, for putting the appellant through the entire legal process of enforcing the Warrant before the High Court but especially for pursuing an appeal before this Court. Indeed particular emphasis was placed on the latter point. Hindsight is, of course, always perfect. Legal decisions carry the weight of unquestioned authority once they have been pronounced. I am not sure that I can share the heavy criticism of the State authorities expressed throughout the judgment of Hardiman J for pursuing the first warrant at least to the High Court. What was the State to do? Could it simply have informed the Hungarian judicial authority that Ireland had implemented the Framework Decision in a manner which precluded surrender where the person had not “fled?” That would have amounted to a breach of an elementary obligation under international law, where there was no suggestion that the warrant had not been properly issued.

7. Whatever about that, the resulting position was extremely unfortunate, to use no stronger expression, so far as the appellant was concerned. The State’s pursuit of the matter on appeal exposed him to additional and, as it turned out, unnecessary hardship, expense and distress.

8. Following the decision of this Court, the appellant enjoyed the status of a person who could not be surrendered to Hungary at least until the law was changed. All this has been fully and elegantly explored in the judgment delivered today by O’Donnell J. I regret that I am not, in the final analysis, convinced that the appellant acquired any right in law (for the purposes of s. 27 of the Interpretation Act, 2005) as a result of his success on appeal in Tobin 1 which survived the repeal of the “fled” requirement. However, he without any doubt enjoyed that right pending the amendment of the legislation.

9. The legislation was then amended by this State. Indeed this had to be done in order to bring Irish law into conformity with the Framework Decision. That is cold comfort for the appellant. He is the only person whose surrender had been refused by reason of the “fled” provision. The amendment, necessary as it was on general grounds, exposed him to the possibility that a second European Arrest Warrant would be issued, which is indeed what has occurred. If the legislation had been enacted originally in conformity with the Framework Decision, he would at least have had his case decided on appropriate grounds. He would either have been surrendered to Hungary or he would have succeeded on appeal on one of the other grounds advanced in Tobin 1. He would not have been subjected to the same judicial process twice.

10. The consequence of the amending legislation was that the appellant has faced a second process of arrest, objection, High Court hearing and appeal. All this is the result of what appears to have been a legislative error followed by its correction. None of this was the responsibility of the appellant. For the reasons given by Hardiman J, this is quite different from cases where an earlier proceeding has failed by reason of defects in a warrant. In those cases it will be apparent that the surrender (or extradition as the case may be) is the result of a particular defect in the warrant and that, on established principles, the error can be remedied and a new warrant can be issued without the defects.

11. These are in essence the reasons why I agree with Hardiman J that the appeal should succeed on the ground of abuse of process. The principle of national procedural autonomy permits the courts of the Member States to apply national procedural rules so long as they do not infringe either the principle of non-discrimination or of effectiveness.

12. I am not sure that it is relevant to introduce the element of inequality of arms between the appellant and the State authorities. Inequality in that sense will be present in every case under the Framework Decision or in extradition generally. I cannot see that it adds anything to the appellant’s case. Nor do I believe that delay would constitute a ground for refusing surrender on the facts of this case. This Court in its decision in Minister for Justice, Equality and Law Reform v. Stapleton [2008] 1 IR 669 considered how an issue of delay should be treated in the context of the European Arrest Warrant in the case of surrender for prosecution. The possibilities must be more limited where a conviction has already recorded.

13. I would confine the decision on abuse of process to the special and unique circumstances of this case. There was an Arrest Warrant; the appellant was arrested and taken before the Court; he opposed his surrender through the judicial process in accordance with the law. He succeeded. It was not then suggested that the law was erroneous. The appellant had no reason to expect that it would be changed, if he successfully invoked its provisions. The law was changed. His surrender was sought a second time. I would allow the appeal and decline to order the surrender of the 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 IR 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) EWHC 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] IESC 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] NIQB 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 IR 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] IESC 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] EWHC 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:

“..but in my view, while a discrimination has resulted, the primary and overriding purpose of the section was to avoid an unconstitutional invasion of the judicial domain by attempting to give validity to any planning permission which the courts may have held to be lacking in validity. It would follow that no injustice had been done to Pine Valley by s.6 of the Act of 1982 …

.. I consider that the exemption of the State from liability and damages where the Minister’s invalid planning permission is not alone not an unconstitutionality but was in harmony with the dual operation of the organs of government established under the Constitution.”

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 EHRR 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 IR 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 AC 816, and the decision of the Court of Appeal of England and Wales in Chief Adjudication Officer v. Maguire [1999] 1 WLR 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 IR 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] AC 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 ILRM 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.

Judgment delivered on the 19th day of June 2012 by Denham C.J.

1. The events leading up to this appeal commenced on the 9th April, 2000, in the city of Leányfalu, Hungary, when Ciarán Tobin was driving a car which went up on the sidewalk and two small children were killed.

2. This is an appeal by Ciarán Tobin, the respondent/appellant, referred to as “the appellant”, from the judgment of the High Court (Peart J.) delivered on the 11th February, 2011, and the order that the appellant be surrendered to Hungary, pursuant to s. 16 of the European Arrest Warrant Act, as amended.

3. The learned High Court judge was satisfied that the Court was required to order the surrender of the appellant to the authorities in Hungary.

4. By order dated the 10th March, 2011, the High Court certified that its decision to surrender the appellant involved a number of points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this Court.

Certified Questions
5. The questions certified by the High Court were:-

(a) Whether it is an abuse of process and/or contrary to Articles (6), (34) and/or (37) of the Constitution or is otherwise impermissible pursuant to the European Arrest Warrant Act, 2003 as amended for proceedings to be instituted pursuant to that Act seeking the extradition of a person for a second time where

(i) The first such proceedings failed following a determination by the High Court and Supreme Court that the appellant had not fled from the requesting State as required pursuant to the law as it stood at the time of the said proceedings.

(iii) The warrant on foot of which the second request was made is substantively the same as the first.

(b) Whether the provisions of the European Arrest Warrant Act, 2003, as amended apply to convictions imposed in States prior to their accession to the European Union.

(c) Whether s. 5 of the 2003 Act as amended requires the Minister in establishing correspondence to demonstrate that the offence as described and identified in the warrant would in its entirety constitute an offence under Irish law and whether the offence particularised in the warrant herein discloses an offence under Irish law.

(d) Whether it is a breach of the right to equality under Article 40.1 of the Constitution and family rights under Article 41 and 42 of the Constitution and Article 8 of the European Convention on Human Rights and/or otherwise contrary to the provisions of the European Arrest Warrant Act, 2003 as amended for the appellant as an Irish citizen to be extradited to Hungary in circumstances where having fled the jurisdiction it is not possible to serve his sentence of imprisonment in Ireland without returning to Hungary.

Facts
6. The appellant’s surrender is sought on a European Arrest Warrant issued by the Hungarian authorities on the 17th September, 2009, referred to as “the EAW”.

7. The offence for which the appellant was convicted and sentenced is described on the EAW as follows:-

“At around the time of 3.45 p.m. on 9th April 2000, Tobin Francis Ciarán was driving Volvo S40 car with licence plate number GJZ-5—with four passengers along Móricz Zsigmond Street within the city limits of Leányfalu (Hungary), in an inhabited area, at a speed of 75-80 kilometres per hour proceeding from the direction of Visegrád to Szentendre. The accused steered to the right for unknown reasons, and due to this sudden movement of the steering wheel, and to the speed, being excessive compared to the traffic conditions, the vehicle went up on the sidewalk, which was separated from the road by a raised stone edge, at a speed of 71-80 kph, and hit Márton Zoltai, aged 5, who was waiting on the sidewalk, and Petra Zoltai, aged 2, who was sitting in a pram. Both Márton Zoltai and Petra Zoltai died on the spot as a result of the accident.”

8. The Court in Hungary found the appellant guilty of the misdemeanour of the violation of the rules of public road traffic by negligence causing death.

9. The enforceable judgment is dated the 7th May, 2002, by the Buda Regional Court as the Court of first instance, and the order dated the 10th October, 2002, by the Pest County Court, as the Court of second instance.

10. The sentence imposed on the appellant is described on the EAW as:-

“Length of the custodial sentence or detention order imposed: 3(three) years of imprisonment to be served in a low-level security prison. Remaining sentence to be served: 3 (three) years in a low-level security prison.”

11. There is a history to his appeal, as an earlier EAW from Hungary was previously before the Irish Courts and the surrender of the appellant was refused.

12. The Minister for Justice, Equality and Law Reform, the applicant/respondent, referred to as “the Minister”, had previously sought surrender of the appellant under the European Arrest Warrant Scheme, as implemented in Ireland by the European Arrest Warrant Act, 2003, referred to as “the Act of 2003”. The appellant was arrested on the 11th January, 2006, on foot of warrants issued by the authorities in Hungary seeking his surrender. The High Court refused to order his surrender by its order on the 12th January, 2007. The Minister appealed that decision to this Court, which dismissed the appeal and refused to order the surrender of the appellant on the 3rd July, 2007: The Minister for Justice, Equality and Law Reform v. Tobin IESC 3, hereinafter referred to as Tobin (No. 1).

13. The previous proceedings were decided on the basis that the appellant could not be surrendered as s. 10 of the Act of 2003 did not apply to the appellant, as it required that the person sought had “fled” from the issuing State. As a person who had lawfully left Hungary after his passport was returned to him by the Hungarian authorities, it was held that the appellant had not “fled” Hungary and so could not be surrendered under s. 10 of the Act of 2003.

14. The Irish law was amended. Section 6 of the Criminal Justice (Miscellaneous Provisions) Act, 2009, removed the requirement of persons having “fled from the issuing State” from s. 10 of the Act of 2003.

15. Section 10 of the Act of 2003, as amended, now states, in the sections relevant to this case:-

“Where a judicial authority in an issuing state issues a European arrest warrant in respect of a person—

[…]

(d) on whom a sentence of imprisonment or detention has been imposed in that state in respect of an offence to which the European Arrest warrant relates,

that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing State.”

Issues
16. An agreed list of issues was prepared for the Court by counsel for the parties on this appeal, as follows:-

A. Given that this Court held in (Tobin No. 1) that the extradition of the appellant pursuant to the provisions of the Act of 2003 as then in force was not permissible because he had not fled Hungary, is his surrender following amendments to that Act so as to remove the requirement that a person have so fled precluded in circumstances where the warrant on foot of which the present proceedings have been brought is substantively the same as the warrant the subject of Tobin (No. 1) and having regard to:

(i) the principles governing abuse of process;

(ii) the constitutional doctrine of separation of powers;

(iii) the provisions of section 27 of the Interpretation Act 2005.

B. Given that the Transfer of Execution of Sentences Act 2005 requires the appellant to have fled in order for that Act to have effect so that that Act does not operate to permit Ireland and Hungary to agree to the appellant serving the sentence so imposed upon him in this State consequent upon his not having fled Hungary, is his surrender to Hungary to serve that sentence precluded by the provisions of the Act of 2003, and in particular section 37 thereof?

C. Does the fact that Hungary would not surrender a Hungarian citizen to Ireland in respect of offences of the kind giving rise to this request result in a lack of reciprocity having regard to which the instant request ought to be refused pursuant to section 37 of the Act of 2003, or otherwise?

D. Does the offence identified in the warrant the subject hereof – violation of the rules of public road traffic by negligence causing death – and/or the facts as alleged against the appellant correspond to an offence under Irish law?

E. Does the warrant the subject hereof comply with the provisions of s.11 of the Act of 2003, as to the manner in which the sentence imposed upon the appellant is described having regard to all the circumstances (including the various warrants the subject of and the representations made to this Court in Tobin (No. 1) as to the nature of the sentence imposed on the appellant)?

F. Do the provisions of the Act of 2003 as amended, apply so as to enable the extradition of a person to a European Union State in respect of a conviction imposed by the Courts of that State prior to its accession to the European Union?

G. Is the warrant the subject hereof and/or the proceedings brought on foot of it invalid having regard to the fact that at the time of the issuing and thereafter endorsement of the warrant the subject hereof, the provisions of the Criminal Justice (Miscellaneous Provisions) Act 2009 were not published or disseminated.

H. Ought the extradition of the appellant otherwise be refused having regard to:

(a) The period of ten years that has elapsed since the incident to which the warrant relates;

(b) An alleged lack of fair procedures attendant upon his original conviction having regard, in particular, to the exclusion of relevant statements at the trial, and failure to preserve relevant evidence;

(c) The alleged threat to the life and bodily integrity of the Appellant if he is returned to serve his sentence in that jurisdiction.

Chronology
17. As indicated earlier, this case has a history. In an appendix to this judgment a chronology is set out.

The Framework Decision
18. The Framework Decision of the 13th June, 2002, introduced a new, simplified, system of surrender of sentenced or suspected persons for the purposes of execution of a sentence or a detention order or to conduct a criminal prosecution. It was agreed to in order to remove the complexity and potential for delay inherent in the previous extradition procedures which existed between member states of the European Union. The new system is based on judicial decisions in the member states. In fact, the European arrest warrant system was the first concrete measure in the field of criminal law implementing the principle of mutual recognition, which is the cornerstone of judicial co-operation.

19. The Framework Decision established an obligation to surrender between member states. Article 1.2 provides:

“Member States shall execute any European Arrest Warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.”

However, this obligation is subject to exceptions.

20. Thus, for example, Article 3 of the Framework Decision sets out grounds for mandatory non-execution of a European Arrest Warrant.

21. Also, Article 4 provides grounds for optional non-execution of the European Arrest Warrant; for example, where the person who is the subject of the European Arrest Warrant is being prosecuted in the executing Member State for the same act as that on which the European Arrest Warrant is based.

22. In addition, Article 5 makes provision that in particular cases guarantees are to be given by the issuing member state.

23. Therefore, it may be seen that the Framework Decision provides a system of surrender, to which there are some exceptions.

24. Fundamental rights and legal principles are expressly addressed in Article 1, where it is stated that the Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.

Irish Statute
25. The Oireachtas enacted the Act of 2003 and it came into operation on the 1st January, 2004.

26. The Act of 2003 was amended by the Criminal Justice (Terrorist Offences) Act, 2005, and the Criminal Justice (Miscellaneous Provisions) Act, 2009, which together are referred to as “the Act of 2003, as amended”.

27. The mandatory nature of the system of surrender may be seen in s. 10 of the Act of 2003, as amended, which is set out earlier in this judgment.

Thus where, as here, a judicial authority of an issuing state issues a EAW a person on whom a sentence of imprisonment has been imposed in respect of an offence to which the EAW relates, that person shall be surrendered, subject to the provisions of the Act of 2003, as amended, and the Framework Decision.

27. Therefore, the issue on this appeal is whether the provisions of the Act of 2003, as amended, and the Framework Decision as applied in Ireland, make provision by which the surrender of the appellant should be refused. In essence, the query is whether any of the exceptions to the general rule, requiring that a requested person be surrendered, apply to the appellant.

28. The first, and most important, issue, as set out in the agreed list of issues, is repeated here, for ease of reference, and is:-

“Given that this Court held in Tobin (No. 1) that the extradition of the appellant pursuant to the provisions of [the Act of 2003] as then in force was not permissible because he had not fled Hungary, is his surrender following amendments to that Act so as to remove the requirement that a person have so fled precluded in circumstances where the warrant on foot of which the present proceedings have been brought is substantively the same as the warrant the subject of Tobin (No. 1) and having regard to:

(i) the principles governing abuse of process;

(ii) the constitutional doctrine of separation of powers;

(iii) the provisions of section 27 of the Interpretation Act 2005.”

Thus, there are in reality three matters to be considered under this stated issue, being in all the circumstances the application of:

(a) abuse of process;

(b) separation of powers; and

Abuse of process
29. The issue under this heading is whether, given that this Court in Tobin (No. 1) held that the surrender of the appellant pursuant to the statute then in force was not permissible because he had not “fled” Hungary, is his surrender on the amended statute, where the EAW is substantively the same as the warrant in Tobin (No. 1), prohibited by principles governing the abuse of process?

30. The historical context of the decision in Tobin (No. 1) is important. Initially under the Act of 2003, Ireland had a requirement under domestic statutory law that was not in the Framework Decision. This was an additional factor put into national law, and it was that the person sought had:

“fled from the issuing state”,

before he or she had commenced serving that sentence or completed serving that sentence.

31. In Tobin (No. 1) Fennelly J. (with whom the other members of the Court agreed) gave the reasons for the Court’s decision. He pointed out that the appeal concerned the meaning of the word “fled” in the Act of 2003, and whether the appellant had “fled” Hungary. Having reviewed the facts, Fennelly J. held that the appellant’s leaving of Hungary could not reasonably be described as “fleeing” or “flight” in accordance with any generally understood meaning of the word. Fennelly J. was satisfied that the appellant did not “flee” Hungary, and that if the Court were to hold otherwise it would be contrary to the Act of 2003, i.e. contra legem. Consequently, the appeal of the Minister was dismissed and the appellant was not ordered to be surrendered to Hungary.

32. The EAW before the Court on this appeal is substantially the same as was before the Court in Tobin (No. 1). The fundamental facts are the same, except that the national law has been altered and no longer has the requirement, (which was an additional condition to those set out in the Framework Decision), that the requested person had “fled” the requesting state. This amendment brought the national law into conformity with the Framework Decision. This was an amendment the Oireachtas was entitled to make, and was not an abuse of process by the legislature.

33. In issuing this EAW Hungary seeks the surrender of the appellant to serve the sentence imposed by the courts of Hungary. This request was in keeping with the EAW scheme and was not an abuse of process by the requesting state.

34. The Minister received this request, which on its face meets the requirements of the law. There is an obligation on the Minister to proceed with such a request. Therefore, proceeding with the request was not an abuse of process by the Minister.

35. Further, on the matter coming before the Court, the EAW being in conformity with national law and with the Framework Decision, the documents were apparently in order.

36. Thus, no party or institution acted with mala fides. This is a factor in analysing circumstances to determine whether or not there has been an abuse of process.

37. However, it is also necessary to consider whether, in all the circumstances, there has been a cumulative effect so as to render an abuse of process upon the appellant.

38. The fact that there was an earlier arrest warrant does not per se render a subsequent warrant an abuse of process. Second warrants are not an unusual occurrence in an extradition process. While the law in Ireland prior to the Act of 2003 was grounded on the Extradition Act, 1965, the fundamental principle has not altered.

39. The fundamental principle was considered in Bolger v. O’Toole & Ors (Ex tempore, Unreported, Supreme Court, 2nd December, 2002) where I stated:

“The issues before the District Court on these warrants will be different. No broad issue has been determined as to the extradition of the applicant to England. Technical issues were raised successfully in relation to the original set of warrants. There is now a new set of warrants for consideration by the courts. The applicant may also raise wider issues, as he is entitled to. I am not satisfied that the case law submitted by counsel for the applicant, such as

Henderson v. Henderson

, advance his case on the

res judicata

issue. As to the issue of delay, that was not a matter on the judicial review nor was it considered in the High Court. Consequently, it is not a matter for consideration on this appeal.

This case is being decided on all its circumstances. The decision relates to the presentation of second set of warrants to the District Court.

The warrants in issue are different from those warrants which came before the District Court in 1996. They have been endorsed. Thus it is now for the District Court to exercise its jurisdiction.

While on the one hand counsel for the applicant submitted that these warrants were res judicata, he also submitted (when addressing an issue of abandonment) that the State could have adjourned the early application in the District Court to obtain new warrants, or that it could have moved by a subsequent provisional warrant. In essence counsel was submitting that a new set of warrants should have been obtained more speedily.

I am satisfied that under the Extradition Act, 1965 the scheme of rendition by way of backing of warrants does not exclude subsequent warrants. Before the District Court in this case are a new set of warrants, the jurisdiction of the District Court may proceed. The issues before the District Court are different, it has been stated that the two issues that arose under the original warrants have been rectified.

The warrants are new and any issues which may be raised will be different. The fact that the applicant was discharged by the District Court on foot of a previous set of warrants where there were two errors does not exclude a fresh set of warrants being produced and being endorsed. New warrants which have been endorsed now arise to be considered by the District Court. It is for the District Court to exercise its jurisdiction under the Extradition Act, 1965 as amended. The fact that a previous set of warrants existed and on which the applicant was discharged does not prima facie exclude the production and endorsement of a second set of warrants. It may well be that for good reason, in the circumstances of the case, a court may determine that an application for rendition should be refused. Thus, if it were an abuse of process the application may fail. In this case the applicant has been refused leave to make a specific application grounded on specified issues of abuse of process. However, that would not be a bar to any subsequent application for habeas corpus on different issues. Similarly, issues such as delay, which may arise in accordance with the legislation as well as the Constitution, are separate issues which may be raised. However, these matters are not before this court.”

41. In Attorney General v. Gibson (Ex tempore, Unreported, Supreme Court, 10th June, 2004) Keane C.J. stated that it was clear beyond argument that:-

“In extradition cases, the mere fact that a warrant has been issued and an application made arising out of the warrant to the court for an order of extradition, that a warrant has been issued on an earlier occasion arising out of precisely the same alleged offence, and has been adjudicated upon by the District Court or any court of competent jurisdiction, that fact does not, of itself and by itself, preclude a subsequent application to a court of competent jurisdiction. If there were any doubts that that is the state of law, they were, in my view, laid to rest by the decision of this Court in

Bolger v. O’Toole

…”

42. This approach to subsequent warrants is not unique to Ireland. In Office of Public Prosecutor of Turin v. Barone EWHC 3004 (Admin) it is clear that the same principle exists in England and Wales. Lord Justice Moses stated at paragraph 29:-

“I quite accept that the mere fact that a previous request for extradition under the old regime had failed is not of itself a basis for refusing a fresh request for surrender as it might more accurately be described, under the new regime. It is possible to envisage just the same circumstances as occurred in Kashamu, in which a request failed for non disclosure but was repealed under the new regime. But it does not follow that the previous consideration of the court of the requested state is irrelevant.”

43. A request for surrender and its determination in the executing state is a matter which is sui generis. It arises in a situation where the state has entered into an agreement with other states, and there has been consequent legislation establishing a process of surrender of persons. No issue under civil or criminal law is decided. A process by which a person is surrendered by one jurisdiction to another is followed. One of the consequences of this process is that there may be subsequent requests for surrender, there may be more than one warrant seeking the requested person.

44. As Advocate General Kokott stated on the 6th August, 2008, in Case C- 296/08 PPU at paragraph 49:-

“49. As regards the principle of legal certainty, an integral part of which is the rule of

res judicata,

it is settled case-law that this is one of the general principles of law applied by the Court. (

)[Case C-2/06

Kempter

[2008] ECR 1 – 411, paragraph 37]. However,

res judicata

extends only to the matters of fact and law actually or necessarily settled by the judicial decision in question. (

) [Case C-642/05

Commission v Poland

[2008] ECR 1 – 4183, paragraph 23].

50. Here the earlier decision admittedly related to an extradition request relating to the same person and the same facts as the present one. However, the competent court did not rule on that request under the 1996 Convention, since that convention did not apply at the time. The status of res judicata of an unfavourable opinion given at that time cannot therefore prevent the present extradition request, relating to the same person and the same facts, from being dealt with under a new legal basis, namely the 1996 Convention. (40) [See also the judgments of the French Cour de Cassation, criminal division, of 15 February 2006, No. 05-86.095 Zurutuza Sara Sola; 12 May 1987, Bull. Crim. 1987, No. 194 (Dario Fantig); and 9 July 1987, Bull. Crim. 1987, No. 229 (Imaz – Martiarena)].

51. It should be remembered that the rejection of the extradition request of 11 October 2000 was based on the fact that, in French law, the offences with which Mr. Santesteban Goicoechea was charged were statute-barred. Precisely on this point the law has changed, as the 1996 Convention no longer allows the executing Member State to rely on the fact that an offence is statute-barred under its own national law. (41) [Article 8(1) of the 1996 Convention].

52. As regards the principle non bis in idem, enshrined in Article 4 of Protocol No 7 to the ECHR and Article 50 of the Charter of Fundamental Rights of the European Union, this is a fundamental principle of Community law the observance of which is guaranteed by the judicature. (42) [Case C-308/04 SGL Carbon v Commission [2006] ECR 1-5977, paragraph 26 and the case-law cited].

53. The application of the principle non bis in idem is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected. Under that principle, therefore, the same person cannot be punished (or tried 43)) [Article 50 of the Charter of Fundamental Rights of the European Union] more than once for a single unlawful course of conduct in order to protect the same legal asset. (44) [Joined Cases C-204/00P, C-205/00P, C-211/00P, C-213/00P, C-217/00P and C-219/00P Aalborg Portland and Others v Commision [2004] ECR 1-123, paragraph 338]

54. It is clear that, according to the information before the Court, Mr. Santesteban Goicoechea has not been prosecuted several times for the same offence and it is not the intention of the competent authorities to punish him several times for the same offence. (45). [Unlike the position in Case C-467/04 Gasparini and Others [2006] ECR 1-9199]. The Spanish authorities have merely made several attempts to obtain his extradition from the French Republic, all in the context of the same criminal proceedings.

55. Extradition as such is not a penalty, and the mere fact of extraditing a person does not in any way prejudge the question whether, in law, the requesting State will be able to impose a penalty on the person concerned and enforce that penalty.

56. Consequently, the principle non bis in idem does not apply to extradition proceedings themselves. It cannot therefore preclude a new request for the extradition of Mr. Santesteban Goicoechea from being made by the Kingdom of Spain and dealt with by the French Republic.”

45. Thus, on the claim that this subsequent warrant is an abuse of process, I am satisfied that a second or subsequent warrant seeking the surrender of a person is not of itself an abuse of process. To establish abuse of process there would have to be additional factors.

46. As pointed out in Bolger v. O’Toole & Ors (Ex tempore, Unreported, Supreme Court, 2nd December, 2002), if there was an abuse of process, a subsequent application may fail. Thus, even though there has been no mala fides by any person or institution, and the fact that a subsequent warrant is not per se invalid, it is necessary to consider whether there are factors, or whether the cumulative effect of all the circumstances are such that the appellant has suffered an abuse of process.

47. On analysis, it is clear that there was no issue in the first set of proceedings and in the judicial decisions which would continue to apply to this warrant and proceedings. The first proceedings were very net and related solely to the word ‘fled’ and its application. This no longer applies to the application of the appellant. In the first proceedings the appellant obtained the benefit of a technical, net issue of Irish law. I do not consider that this transforms these proceedings into an abuse of process.

48. There are many cases on the issue of an abuse of process. Of their very nature they are fact specific. A prosecution may not take a step, such as a nolle prosequi in order to mend his hand and to obtain a benefit in a subsequent prosecution. In State (O’Callaghan) v. Ó hUadhaigh I.R. 42 at p. 54 Finlay P. stated:-

“Whilst my decision, as I have already emphasised, must rely upon the facts of this particular case, it is confirmed by a consideration of the extent of the contention made on behalf of the respondent. If the Director, having entered into a nolle prosequi, is entitled to institute an entirely fresh prosecution in respect of the same alleged offence without restriction from any court then, if it appeared likely that a contention of the prosecution would fail, there would appear to be nothing to prevent the Director from entering a

nolle prosequi

and availing himself of the opportunity in a fresh prosecution, an additional or different evidence to succeed where he had been about to fail; that situation might arise in a discretionary matter involving a decision of mixed fact and law which falls to be determined by the trial judge rather than the jury – such as the admissibility of a statement alleged to have been made by the accused. Viewed in that light, the basis unfairness of such a contention appears to me to be clear. Therefore, I am satisfied on the facts of this particular case the Director of Public Prosecutions has not got a right to institute a fresh prosecution against the accused in respect of the matters which were the subject mater of the three charge sheets, and in respect of which the accused was returned to the learned District Justice for trial to the Circuit Court.”

It was submitted that the commencement of a second set of proceedings in which the surrender of the appellant under the European Arrest Warrant regime is sought must be regarded as an impermissible and unlawful attempt to interfere with the Court’s exercise of its constitutional functions. It was submitted that there was interference by the executive in the administration of justice. It was submitted that if the Court found that the second attempt to extradite the appellant and to expose him to a second extradition hearing is not an abuse of process, it was submitted that it would have been unconstitutional for the Oireachtas to amend the law so as to enable the Minister to proceed again. It was submitted that the Oireachtas is precluded from amending the law with retrospective effect so as to set aside the final determination of the High and Supreme Court in Tobin (No. 1) that the appellant cannot be surrendered under the European Arrest Warrant system.

49. The facts of this case and State (O’Callaghan) v. Ó hUadhaigh are entirely different. There is no question of a prosecutor taking a step and availing himself of the opportunity in a fresh prosecution. Neither the authorities in Hungary nor the Minister took any step of this type. The first proceedings were fought through to conclusion in this Court. This new EAW is possible because of the change in the general law and does not arise from a prosecutor or any other person seeking an advantage in proceedings by a procedural step. Thus, I would distinguish this case, it has no relevance to the facts which have arisen on this request for surrender.

50. In McMahon v. Leahy [1984] I.R. 525 at issue was equality before the law. It had been the practice and law for the High Court, influenced by the State’s attitude, to declare that escapes in Northern Ireland were political offences. A solemn declaration and direction had issued from the High Court to the effect that four escapees from Newry Courthouse on the 10th March, 1975, were political offenders. In this case the State sought the opposite result in similar proceedings and on similar facts under the same Act. O’Higgins C.J. stated, at p. 537:-

“If the State were successful in this submission, it would mean that contradicting declarations in relation to the same incident would have issued from our Courts. If such occurred, respect for the administration of justice in our Courts would surely suffer, and the Courts’ process would certainly have been abused.”

51. This appeal is entirely different.

(i) There is no question of equality as between this appeal and other persons and court orders. McMahon v. Leahy was determined on the basis of the obligation to provide equal treatment for citizens of the State in accordance with Article 40 of the Constitution. It would have been unfair if co-escapees of the applicant had the benefit of the “political offence” defence and the applicant did not.

(ii) The issue in Tobin (No. 1) was on the interpretation of “fled”, which is no longer an issue. The issue in the other cases referred to in McMahon v. Leahy was the same, the political offence defence, such an equality issue does not arise in this case.

52. Many other cases were opened to the Court, including Pine Valley Developments v. Minister for the Environment I.R. 23. However, the circumstances of those cases are not in accordance with this application before the Court under the Act of 2003, and I find no assistance, indeed to either party.

53. It was submitted on behalf of the appellant that in the circumstances where the Minister chose to proceed with the first set of proceedings and to pursue them all the way to a final determination in this Court, in reliance on what is now argued to have been a legislative mistake, it would be an abuse of process to allow the Minister then to initiate a second set of proceedings.

54. I consider this to be entirely misconceived. The legislature had placed in the law the requirement that a person had “fled”. That was the law of the land, even if it was not a condition enacted in any of the other member states who had enacted the Framework Decision into national law. The Framework Decision does not preclude national requirements, although the fundamental principle is to achieve conforming legislation. The authorities in Hungary and Ireland acted entirely within the law in bringing the “initial” application to the High Court and in appealing the issue to this Court. While it may now be regarded as a legislative mistake to have included the condition that a person had fled a requesting state, it was clearly a specific condition precedent proposed by the executive and enacted by the legislature. Thus, it was entirely appropriate for the Minister to act within the law and to seek clarification from this Court of the law. Neither a Minister nor a state authority can take the view that a law is “a mistake” and choose which law to apply or not. I do not consider that the steps taken by and on behalf of the Minister are a foundation upon which to now claim an abuse of process, as the initial warrant was refused because of a technical matter which arose under national law, requiring that the appellant had “fled” Hungary, which he had not. Subsequently, there was a change in the national law, a change in the general law, which omitted the condition of “fled” from the requirements of Irish law. The Minister was entitled to, and had a duty to, act within the law as it then stood. In those circumstances there was no evidence before the Court of abuse of process and I would dismiss this ground of appeal.

Separation of Powers
55. It was submitted that the commencement of a second set or proceedings in which the surrender of the appellant under the European Arrest Warrant regime is sought must be regarded as impermissible and unlawful attempt to interfere with the Court’s exercise of its constitutional functions. It was submitted that if the Court found that the second attempt to extradite the appellant and to expose him to a second extradition hearing is not an abuse of process, it was submitted that it would have been unconstitutional for the Oireachtas to amend the law so as to enable the Minister to proceed again. It was submitted that the Oireachtas is precluded from amending the law with retrospective effect so as to set aside the final determination of the High and Supreme Court in Tobin (No. 1) that the appellant cannot be surrendered under the European Arrest Warrant system.

56. This argument is misconceived. The earlier Tobin (No. 1) case held that the appellant had not “fled” and thus he could not be surrendered as the condition established under national law was not met. The Oireachtas is entitled to amend the law generally, as it did in this case. The amended law dropped the unique requirement of Ireland that a requested person had “fled”. The current request by Hungary for the surrender of the appellant was made after the general change in the law. The current law applies to this request.

57. This is not a situation where the Oireachtas sought to interfere with a specific case or decision of the courts. Thus, Buckley v. Attorney General [1950] I.R. 67 is not applicable. Nor is there any similarity with Costello v. Director of Public Prosecutions [1984] I.R. 436.

58. The previous decision of the Court was that the appellant had not “fled” Hungary, and that consequently under the law he could not be surrendered. It was a discrete decision, and not a general decision that the appellant could never be surrendered. As stated previously, a subsequent warrant is not of itself invalid, although all the circumstances of the case may be considered. The circumstances of the decision of Tobin (No. 1) were that it was made on a net point of national law. The fact that the general national law has been changed (indeed Irish law became more conforming with the Framework Decision) is not an interference with the administration of justice, or an abuse of process. Thus, I would dismiss this ground of appeal by the appellant.

Section 27 of the Interpretation Act, 2005
59. The appellant submitted that it is impermissible to bring this second set of proceedings on foot of the amendment in the Act of 2009 of section 10 of the Act of 2003 by reason also of s. 27 of the Interpretation Act, 2005. Section 27 of the Interpretation Act, 2005, provides:-

“(1) Where an enactment is repealed, the repeal does not—

(a) revive anything not in force or not existing immediately before the repeal,

(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment,

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence against or contravention of the enactment which was committed before the repeal, or

(e) prejudice or affect any legal proceedings (civil or criminal) pending at the time of the repeal in respect of any such right, privilege, obligation, liability, offence or contravention.

(2) Where an enactment is repealed, any legal proceedings (civil or criminal) in respect of a right, privilege, obligation or liability acquired, accrued or incurred under, or an offence against or contravention of, the enactment may be instituted, continued or enforced, and any penalty, forfeiture or punishment in respect of such offence or contravention may be imposed and carried out, as if the enactment had not been repealed.”

60. It was submitted on behalf of the appellant that s. 27 operates to prevent the retrospective application of statutory amendments to pre-existing rights, privileges, judicial proceedings, etc. In particular, reliance was placed on the prohibition of any retrospective application which would “affect the previous operation of the enactment or anything duly done or suffered under the enactment”, or which would “affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment”. It was submitted that the Minister’s application to seek the surrender of the appellant for a second time on foot of the changes introduced by the Act of 2009 is contrary to both of those provisions as liable to affect the previous operation of the Act, and the proceedings brought previously against the appellant, and is liable to deprive him of the benefit of the judicial determination acquired in those proceedings. It was submitted that this is also a basis upon which the Court should allow the appeal.

61. The issue is whether the decision in Tobin (No. 1) has given the appellant a right or a vested right so that it may be presumed that the Oireachtas did not intend to interfere with that right unless the contrary intention appears.

62. It is clear that under s. 27(1)(b) the amendment does not affect the previous operation of the previous enactment or anything duly done or suffered under the enactment. Thus, the amendment does not affect the previous decisions of the High Court or this Court in Tobin (No. 1), which held that the appellant had not “fled” Hungary. Those decisions stand unaffected.

63. The appellant obtained the benefit of those decisions. Any right accrued to the appellant is to the benefit of those decisions. The amendment does not affect any right, privilege, obligation or liability accrued or incurred under the previous statute, thus the amendment does not affect the right which the appellant has under Tobin (No. 1).

64. Section 27(1)(c) refers to a right accrued or incurred under the previous legislation. The appellant has a right which was recognised under the previous legislation, a decision that he had not “fled” Hungary and could not be surrendered because of the condition established in the statute.

65. The determination of the Irish Courts in Tobin (No. 1) was a discrete decision on the issue of whether or not he had “fled” Hungary. It was not a broad analysis and determination that he could not be surrendered to Hungary. The consequence was that the appellant could not be surrendered because of the national law requirement that he had “fled” Hungary.

66. As long as Irish national law retained the “fled” requirement, the appellant could not be surrendered to Hungary.

67. However, it is clear that the Oireachtas sought to bring Irish law into conformation with the Framework Decision by deleting the requirement that a person who is requested under the European Arrest Warrant Scheme should have “fled” the issuing state. This amending legislation is a general law, which has prospective effect, and which is consistent with the role of the legislative organ of the State. Further, it is consistent with obligations arising under the Framework Decision.

68. The situation requires to be analysed in the context of the law on extradition. The section applies to an area of law which is sui generis, which is a process for surrender between member states.

69. I am satisfied that any right accrued or incurred by the appellant relates to the decision on the net issue of “fled” and is limited to that issue, and does not bar a further warrant or the application of current law.

70. If there was any doubt about the matter, which I do not have, I am satisfied that the Oireachtas was entitled to bring the Irish law into conformity with the Framework Decision, and no decision made has given to the appellant a right not to be surrendered under Irish law and the Framework Decision as now applied in Ireland.

Conforming
71. A national court has a responsibility, as far as possible, to interpret national law in light of the wording and purposes of a Framework Decision. As was stated, and applied in Ireland previously, by the European Court of Justice in Case C – 105/03 Pupino [2005] 2 CMLR 63 at paragraph 43:-

“In the light of all the above considerations, the court concludes that the principle of interpretation in conformity with Community law is binding in relation to framework decisions adopted in the context of Title VI of the Treaty on European Union. When applying national law, the national court that is called on to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34(2)(b) EU.”

72. In Tobin (No. 1) the Court could not apply the principle of interpretation in conformity with Community law as to do so would have been contra legem. This indicates the position of the Court, and the narrow issue of the decision i.e. to the “fled” point.

73. As has been stated earlier, it was entirely within the power of the Oireachtas to bring the law into conformation with the Framework Decision.

Right
74. The right obtained by the appellant arising from Tobin (No. 1) was limited to the decision made, i.e. that there was a requirement under national law that a person could not be surrendered to an issuing country unless he had “fled” from that state, and as the appellant had not fled Hungary he could not be surrendered.

75. There is no general right not to be extradited or surrendered, either under Irish law or under the European Convention on Human Rights.

76. Extradition, or surrender, is a sui generis procedure, which is not determinative of a person’s civil rights or liabilities under criminal law. It is a procedure of surrender of requested persons between states, arranged between states.

77. A person who becomes liable to surrender by reason of a change in the law is not entitled to complain of interference with any vested right to general protection from being surrendered to serve a sentence imposed on him in another State.

78. As was stated in Sloan v. Culligan [1992] 1 I.R. 223 at 273 by Finlay C.J.:-

“The Court is satisfied that the plaintiff did not have at any material time what has been described in the submissions before the Court as a vested right, either to freedom or to protection from being delivered up to serve these sentences on the basis that the offences in respect of which they were imposed constituted political offences, either of which rights has been interfered with or left unprotected by virtue of the effect and provisions of the Act of 1987 and, in particular, of s. 1, sub-s. 4 thereof.

The right of the plaintiff, as of every other citizen, concerning the question of his delivery into another State for the purpose of serving a sentence lawfully imposed on him in that State, was, the Court is satisfied, a right at any given time to proper, due and fair procedures concerning an investigation of the validity of the warrant in respect of which he is delivered, and to a fair, proper and due inquiry into the protections applicable in law, within the State at the time of the application for his delivery, which may afford him a protection arising from the concept of a political offence or from any other of the concepts appropriate to prevent such a delivery. The provisions of the Act of 1987 constitute a development of the law applicable to the delivery of persons out of the jurisdiction of this State and into the jurisdiction of the Northern Ireland courts, amongst others, which the legislature in accordance with the decision of the State to ratify the European Convention on the Suppression of Terrorism, done at Strasbourg on the 27th January, 1977, has validly decided to enact. Upon the passing of that statute the right of every citizen and every person affected by it simply is to its due application, and its application with regard to the provisions of s. 3 thereof to a case where an offence was committed before the passing of the Act of 1987, but where a warrant requesting the delivery of the person concerned was not issued until after the passing of the Act, does not constitute, the Court is satisfied, any failure on the part of the State to defend, vindicate or protect any personal right of the plaintiff.

The Court is, therefore, satisfied that s. 1, sub-s. 4 of the Act of 1987 has not been established as being invalid, having regard to any provision of the Constitution.”

[The emphasis is added].

79. Relying on the extract from Sloan v. Culligan quoted above, I reached the same conclusion in Minister for Justice, Equality and Law Reform v. Bailey [2012] IESC 16 (1st March, 2012) where I stated at paragraph 65:-

“Applying that rationale to this case, I am satisfied that the appellant has not established any vested right not to be surrendered. He has a right to due and fair procedures. On this issue, the second of the legal issues, on the application of s. 42 of the Act of 2003, the appellant has not established any vested right not to be surrendered that would be protected under s. 21 of the Interpretation Act, 1937, or s. 27 of the Interpretation Act, 2005.”

80. Thus, the right of a person whose surrender is sought is to fair procedures, concerning the validity of the EAW and to inquiring into the protections applicable under current law. The amendment of the national law does not amount to an abuse of process. The appellant’s right is to fair procedures in relation to this warrant.

81. Taking into consideration the submissions made by the parties, I am satisfied that the appellant does not have a right under s. 27 of the Interpretation Act, 2005, so as to prohibit his surrender under the law on the current EAW.

Transfer of Execution of Sentences Act, 2005
82. The issue on this aspect of the law arises as the Transfer of Execution of Sentences Act, 2005, referred to as “the Act of 2005”, requires the appellant to have fled in order for that Act to have effect, which means that the Act of 2005 does not operate to permit Ireland and Hungary to agree to the appellant serving the sentence imposed upon him in Hungary in this State, as he has not fled Hungary. It is ironic that his success in Tobin (No. 1) prohibits the application of the Act of 2005 to him.

83. The issue raised is whether because of the fact that the Act of 2005 does not apply to the appellant, and he may not serve his sentence in Ireland, is his surrender to Hungary precluded on these grounds?

84. Section 7(i) of the Act of 2005 provides:-

“Subject to subsection (2), the Minister may, upon receipt

of a request in writing from a sentencing country to consent to the

execution in the State of a sentence imposed in the sentencing country,

or part of a sentence so imposed, on a person who fled to the

State before he or she—

(a) commenced serving that sentence, or

(b) completed serving that sentence,

give such consent.”

85. A number of conditions are set out in subsection (2) which were not raised in and are not relevant to this appeal. As subsection (1) above requires that the appellant had fled Hungary before he could obtain the benefit of the section, and as he had not fled, and as he is not entitled to the benefit of the section, it was submitted that his rights under the Constitution and the European Convention on Human Rights, referred to as “the ECHR”, have been breached.

86. However, there is no mandatory requirement under the Framework Decision or under the Act of 2003, as amended, providing that the appellant has a right to serve his sentence in the requested State.

87. There is an option exercisable by a member state under Article 4(6) of the Framework Decision. That Article provides:-

“The executing judicial authority may refuse to execute the European Arrest Warrant:

[…]

6. If the European Arrest Warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying on, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law;”

87. However, there is no general right, under the Constitution or the ECHR, mandating a state to provide facilities to a person who has been requested by another state under an EAW, to serve a sentence in the executing member state rather than in the issuing member state. Thus, there is no general breach of a right under the Constitution or the ECHR.

88. No cases were cited before this Court, and I know of none, which prohibit the surrender by a member state of a convicted person to serve a sentence lawfully ordered in another member state, on the grounds of interference with family life.

89. In essence, the appellant is submitting that there is a mandatory requirement on the State to enable him serve the sentence which was imposed in Hungary, in Ireland. Such a mandatory requirement does not fall upon the State and the appellant has no such right. Indeed, it is essentially what is at the heart of any extradition or surrender scheme entered into between nations, that persons will be extradited or surrendered in accordance with the treaty or other agreements.

90. However, while under the scheme of the EAW the appellant may be surrendered to serve his sentence in Hungary, he may then apply under the Transfer of Sentenced Persons Act, 1995, to serve his sentence in Ireland.

91. The fact that the appellant may be legally surrendered to Hungary pursuant to the Act of 2003, as amended, before he can apply to serve his sentence in Ireland is not a breach of his rights under the Constitution or the Act of 2003, as amended. However, I find it very hard to understand why there should be a delay of 18 months as was submitted as an estimate to the Court, before the appellant would be transferred to Ireland under that scheme. A delay of that extent does not on its face appear reasonable.

92. It is very understandable that the appellant would not wish to serve his sentence in Hungary, and would prefer to be imprisoned in Ireland, where his family lives. However it is an inherent aspect of an extradition or surrender system that it may cause disruption in a family. As Fennelly J. said in Minister for Justice, Equality and Law Reform v. Gheorghe [2009] IESC 76 at para 48:-

“It is a regrettable but inescapable incident of extradition in general and, as in this case, surrender pursuant to the system of the European arrest warrant, that persons sought for prosecution in another state will very often suffer disruption of their personal and family life. Some states have historically refused to extradite their own nationals, but that is a special case. The Framework Decision expressly provides that, in Article 1, that it does not ‘have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in article 6 of the Treaty on European Union.’ No authority has been produced to support the proposition that surrender is to be refused where a person will, as a consequence, suffered disruption, even severe disruption of family relationships.”

93. In the High Court in the instant case, [2011] IEHC 72, Peart J. held:-

“The principles are clear. But without weighty facts to support the Article 8 objection, really the principles are of little importance. In my view, there is nothing exceptional in the respondent’s family circumstances. They are features which apply in the case of the majority of respondents who may have moved to this jurisdiction with their family before their surrender is sought, and also in respect of Irish citizens who have lived their lives in this State and where their families are settled and embedded. In all such cases a surrender of a family member, be it father or mother in particular, will case great distress and disruption to family life. It will for a period of time separate that family member from the family unit. While that is in all cases regrettable, it is nevertheless an inevitable consequence, just as the imprisonment of any person to a domestic sentence does.

The obligation to surrender persons for either prosecution or for the service of a sentence will in most cases outweigh any objections on the disruption which that surrender will cause to both the respondent and his family. It requires exceptionally strong, and indeed exceptional facts for a respondent to succeed in defeating a surrender application based on Article 8 of the Convention and/or under the Constitution. Those facts are absent from this case.”

94. I would endorse the above analysis by the learned trial judge and his application of the law to this case, and dismiss the appellant’s appeal on this ground.

Hungary does not surrender a citizen

95. The next issue before the Court is whether the fact that Hungary would not surrender a Hungarian citizen to Ireland in respect of offences of the kind giving rise to this request, would result in a lack of reciprocity, so that the request in this case ought to be refused pursuant to s. 37 of the Act of 2003, as amended, or otherwise.

96. Article 4 of the Framework Decision provides grounds for optional non-execution of an EAW. The very fact that they are optional indicates that they are not mandatory.

97. It appears that Hungary has implemented Article 4(6) as a ground for refusal of a surrender. This arises where a state, such as Hungary, undertakes to execute the sentence of a requested person in accordance with their domestic law.

98. Ireland has not implemented this option.

99. The appellant has, in essence, submitted that reciprocity is an element of the scheme of surrender by way of an EAW. In fact it is not a factor, as submitted on behalf of the appellant, in the scheme of surrender established under the Act of 2003, as amended and the Framework Decision. The matter has been addressed in some recent cases in the High Court.

100. In Minister for Justice, Equality and Law Reform v. Sulej and Puta [2007] IEHC 132, an issue arose as the Czech Republic did not surrender its own citizens for the offences before the Court. It was submitted that this lack of reciprocity constituted discrimination contrary to Czech constitutional principles and that the warrants could not have been duly issued. Peart J. held:-

“Without dealing with the submissions of counsel in any detail, it is perfectly clear that even if there is some disparity between the manner in which the Framework Decision has been introduced into Czech law and how it has been given effect to in this State, there can be no reason resulting from that fact, if it be such, why this State should refuse to surrender in accordance with the requirements of the Framework Decision and the Act here. There can be no question of this Court examining how another Member State has given effect to it in some way different to this State, that we here should not honour obligations which we have entered into.”

101. In this Court, in a judgment with which the other members of the Court agreed, Fennelly J. stated at paragraph 10:-

“The appellants wish this Court to rule that the provisions of Czech law which implement the European Arrest Warrant are contrary to Czech constitutional principles. This Court could not conceivably pass judgment on the validity of Czech legal provisions. That is patently exclusively a matter for the domestic legal system.”

102. The disparity in application of optional measures in the surrender procedures agreed in the Framework Decision and applied to member states does not give rise to a breach of rights to the appellant pursuant to s. 37 of the Act of 2003, as amended.

103. There is no merit in this issue on the appeal and I would dismiss this ground of appeal also.

104. The issue of reciprocity as considered in Minister for Justice, Equality and Law Reform v. Bailey [2012] IESC 16, arose under the terms of Article 4.7 of the Framework Decision and the Act of 2003, as amended, in unique circumstances which have no relevance to the circumstances of this appeal and thus that case may be distinguished.

Correspondence
105. The next issue as agreed by the parties was whether the offence identified in the warrant the subject of this appeal, violates the rules of public road traffic by negligence causing death, and/or the facts as alleged against the appellant correspond to an offence under Irish law?

106. This issue was addressed fully in written submissions by the appellant. It was submitted that it would not be permissible under Irish law to impose liability for negligently causing death in the circumstances described in the warrant, and that accordingly, there was no correspondence between the criminal conduct identified in the warrant and criminal conduct under Irish law.

107. The issue of correspondence was also addressed fully in the written submissions filed on behalf of the Minister, and it was submitted that there was correspondence.

108. The law applicable to the issue of correspondence is well established.

109. In Tobin (No. 1) [2008] 4 I.R. 43, in the High Court, Peart J. considered the issue of correspondence. While that was a different EAW, it did relate to the same offence, and thus the issue of correspondence was identical. Peart J. held at 61 to 62:-

"In my view, the Court cannot get into the business of trying to establish an identical offence here based on the facts. There are a variety of road traffic offences which the act alleged against the [appellant] could give rise to based

on the known undisputed facts. It is not disputed that the [appellant] was driving far in excess of the permitted speed limit, even if the speed itself was only between 70 and 80 kph. There was a low speed limit applicable and it was greatly exceeded. There is no doubt that for whatever reason this car veered to the right and mounted the pavement and hit the two children.

Counsel for the [appellant] quite correctly points out that the outcome of the

accident should not necessarily determine the question of dangerous or reckless or negligent driving. In other words, it must be the act of driving rather than how seriously persons were injured which must be looked at for correspondence, and he submits that driving at 70 kph in what the [appellant] described as a careful manner given the presence in the car of both his young son and his heavily pregnant wife is not an inherently dangerous act even if it was in contravention of the speed limit, and that there is no evidence of any dangerous driving as such, and which would be sufficient to lay a charge of dangerous driving in this country.

Under s. 53 (1) of the Road Traffic Act, 1961 as amended, it is an offence to drive a vehicle in a manner (including speed) which is dangerous to the public. In this country a person in the position of this [appellant] might easily be charged with this offence under s.53 and face a penalty based on the fact that driving in question caused death. Section 53 (2) provides for the applicable penalties, including in a case where the dangerous driving causes death, a term of imprisonment. But having been charged with that offence, it is quite possible that the facts as we know them would not amount to dangerous driving under Irish law. However that does not mean that he could not be convicted of any offence. Subsection (4) provides that where a person has been charged with dangerous driving under s. 53(1) he may be found guilty of a lesser offence of careless driving under s. 52. Section 51A, as inserted, also provides for a lesser offence again of driving without reasonable consideration. There is also the summary offence of exceeding the speed limit, which is not excluded from the consideration of correspondence by the definition in s. 5 of the Act.

I am satisfied that on the facts alleged, even excluding any which may be in controversy, the acts alleged against the respondent would give rise to a number of possible offences in this country as indicated. This ground must fail accordingly.”

110. In this case in the High Court in the judgment delivered on the 11th February, 2011, Peart J. said:-

“Having heard those submissions, and even though references are made to some decisions in relation to correspondence which post-date the earlier judgment of mine on the first warrant, I do not consider it necessary to revisit my earlier finding in relation to correspondence. While it is true that the Hungarian offence is one of negligent driving causing death, and while it is also true that in earlier versions of this warrant the term "reckless" was used, these features do not alter or affect the Court's task as required by section 38 or section 5 of the Act of 2003. This Court must look at the facts contained in the description of the offence in the warrant and be satisfied that if those acts were done here an offence would be committed. That is the basis on which the Court proceeded on the last occasion, and there is no reason to take any different approach on this occasion, or to reach any different conclusion. Accordingly I am satisfied that the offence corresponds to an offence here of dangerous driving/dangerous driving causing death contrary to section 53 of the Road Traffic Act, 1961, but would correspond also for the purposes of section 5 of the Act of 2003 to a number of lesser offences identified in my earlier judgment.”

111. I would affirm the determination of the learned High Court judge on this issue. The facts are clearly established, these include that the appellant was driving at speed, the car mounted a footpath, killing two children. The constituents of an offence at Irish law are made out. I am satisfied that there is correspondence and that the appellant’s ground of appeal on this issue should be dismissed.

Compliance with s. 11 of the Act of 2003
112. The query raised on the agreed issues was whether the warrant the subject of this appeal complies with the provisions of s. 11 of the Act of 2003, as to the manner in which the sentence imposed on the appellant is described having regard to all the circumstances (including the various warrants the subject of and the representations made to this Court on Tobin (No. 1) as to the nature of the sentence imposed on the appellant).

113. Section 11 of the 2003 Act, as amended provides that:

“(1) A European arrest warrant shall, in so far as is practicable, be in the form set out in the Annex to the Framework Decision.

(1A) Subject to subsection (2A), a European arrest warrant shall specify –

[…]

(g) (iii) where that person has been convicted of the offence specified in the European arrest warrant and a sentence has been imposed in respect thereof, the penalties of which that sentence consists.”

114. Article 8(1) of the Framework Decision provides that:

“The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:

[…]

(f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State.”

115. The EAW states that the length of the custodial sentence imposed is “3(three) years of imprisonment to be served in a low-level security prison.” Further, it is stated that the remaining sentence to be served is “3 (three) years in a low-level security prison.”

116. It was submitted on behalf of the appellant that there was a lack of clarity in respect of the sentence to be served.

117. The warrant states clearly the length of sentence, three years. The Court at second instance made provision for the appellant to be released on a form of parole when he had served half his sentence, but this did not alter the length of the sentence.

The High Court [2011] IEHC 72 held:-

"Clearly the warrant on the last occasion and indeed the warrant on the present application could have been more expansive in describing all the features of the sentence in more detail, but the requirement under section 11 is to set forth the sentence. The sentence imposed was one of three years, even if there is an opportunity of release after eighteen months was allowed on appeal. The [appellant] was legally represented when this sentence was passed and on the appeal when the appeal modified the sentence. It can be presumed that those lawyers informed the [appellant] of the result of the appeal. It is hard to imagine that the [appellant] was not aware of the nature and length of sentence which has been imposed. I do not believe that he has been mislead by the warrants which have emanated from the issuing state such that the warrant should be found not to comply with section 11 of the Act of 2003.”

118. I would affirm the judgment of the High Court on this point.

119. It would be fair to say that this was not the best point raised on behalf of the appellant. In this case the information on the EAW, and the additional information before the Court, including the affidavit of the appellant, made it clear that it was a sentence of three years. I find no breach of any right of the appellant.

Prior to Accession?
120. The query raised was whether the provisions of the Act of 2003, as amended, apply so as to enable the surrender of a person to a European Union state in respect of a conviction imposed by the Courts of that state prior to its accession to the European Union.

121. The offence in this case took place in April 2000, the trial of the appellant was in May 2002 and the Act of 2003 commenced in Ireland on the 1st January, 2004. Hungary joined the EU in May, 2004, and the Minister made the designation for the purposes of the Act of 2003 on the 5th May, 2004 in the European Arrest Warrant Act, 2003, (Designated member States) (No. 3) Order 2004 (S.I. No. 206/2004).

122. This ground of appeal is misconceived. Section 4 of the Act of 2004 states:-

“This Act shall apply in relation to an offence, whether committed or alleged to have been committed before or after the commencement of this Act.”

123. The Act of 2003 was enacted to give effect to the Council Framework Decision of the 13th June, 2002 on the European arrest warrant and the surrender procedures between member states; to amend the Extradition Act, 1965; and connected matters. Thus, there was a time of transition in Ireland, and in other member states, from a scheme of extradition to a scheme of surrender by way of the EAW.

124. Article 32 of the Framework Decision addressed transitional matters. It provided that requests received by member states after the 1st January, 2004, will be governed by the rules adopted by the Member States pursuant to the Framework Decision. However, member states were given an option, they could make a statement indicating that as an executing member state it would continue to deal with requests relating to acts committed before a date which it specified in accordance with the extradition system applicable before the 1st January, 2004. Ireland did not exercise this option. Instead it enacted the provision in s. 4 of the Act of 2003, as set out above.

125. Section 10(d) of the Act of 2003 does not alter the provisions of s. 4 of the Act of 2003 in any way relevant to the circumstances of the appellant.

The Act of 2003 states, and should be interpreted as, applying to offences committed before the commencement of the Act. The law on this issue has been stated clearly previously in relation to offences committed prior to accession: See Minister for Justice, Equality and Law Reform v. Altaravicius (No. 2) [2007] 2 IR 265 at 281 per MacMenamin J:-

"The respondent claims that the framework decision and the Act of 2003 are - inapplicable as the offences alleged predate Lithuania's membership of the, European Union. It is now necessary to deal briefly with these contentions.

No such restriction on surrender is set out in the framework decision or in the Act of 2003. Articles 3 and 4 of the framework decision, respectively, set out the mandatory and optional grounds for not executing an otherwise properly constituted European arrest warrant. Nowhere in those two articles is the restriction contended for by the respondent to be found. Article 32 of the framework decision allows a member state to make a statement (at the time of adoption of the Council decision) relating to dealing with requests as executing member under the previous extradition regime where acts committed before that date to be specified on the statement. Only Austria, Italy and France made such statements. It is clear that the framework decision is intended to apply to all acts alleged to have been committed prior to its commencement save as otherwise expressly limited. To imply such a restriction on surrender to another member state would be illogical and without any legal foundation. Such an implication would not only be unwarranted, but would be inconsistent with the purpose and intent of the scheme established by the framework decision. In acceding to the European Union on the 1st May, 2004 and to the framework decision, Lithuania took on the binding effect to surrender (and request surrender) in accordance with the framework decision.

It has not been the case under previous extradition legislation nor under international arrangements or treaties on extradition that a person would not be surrendered to a requesting state in respect of offences which predate the legislation or the treaty. There is no authority for such a proposition in domestic case-law or under the Extradition Act 1965, as amended.

Furthermore, the Act of 2003, at s. 4, expressly provides for retrospectivity in relation to offences:

'Subject to subsections (2) and (3), this Act shall apply in relation to an offence, whether committed or alleged to have been committed before or after the commencement of this Act.'

Section 3 allows for the Minster for Foreign Affairs to designate a member state that has, under its national law, given effect to the framework decision. No argument has been advanced as to the alleged unconstitutionality of the Act due to retrospectivity and consequently it is unnecessary for this court to make any finding under this heading."

126. I adopt and apply this analysis. The same analysis applies when both the offence and the conviction occur prior to the accession.

127. In the transition between the earlier extradition procedures and the current European arrest warrant procedures, the decision made by the Executive and the Legislature was that there be no reservation on this issue under Article 32 of the Framework Decision, and the domestic law was stated clearly in s. 4 of the Act of 2003. Thus, the applicable law is the Act of 2003, and this submission of the appellant should be dismissed.

Act not published
128. The next issue raised by the parties was the query as to whether the EAW and/or the proceedings brought on foot of it are invalid having regard to the fact that at the time of the issuing and thereafter endorsement of the EAW, the provisions of the Criminal Justice (Miscellaneous Provisions) Act, 2009, were not published or disseminated. In essence, the argument of the appellant was that there was an exercise of powers under generally inaccessible legislation.

129. On the 21st July, 2009, the Criminal Justice (Miscellaneous Provisions) Act, 2009, was signed into law by the President. On the 24th July, 2009, a notice in Iris Oifigiúil appeared stating that the Criminal Justice (Miscellaneous Provisions) Act, 2009, had been signed by the President on the 21st July, 2009, and accordingly became law. On the 25th August, 2009, the Criminal Justice (Miscellaneous Provisions) Act, 2009 (Commencement) (No. 3) Order 2009 (S.I. 330/2009), referred to as “the Commencement Order” brought into force the provisions contained in Part 2 of the Act of 2009, which amended the European arrest warrant legislation. On the 17th September, 2009, the EAW was issued by the Hungarian judicial authority seeking the surrender of the appellant. The EAW was endorsed by the High Court on the 14th October, 2009. On the 3rd November, 2009 the Act of 2009 was published. On the 10th November, 2009 the appellant was arrested.

130. It was submitted on behalf of the appellant that as the Act of 2009 was not published or disseminated until the 3rd November, 2009, that the application for the endorsement of the EAW was unlawful on the basis that the Act of 2009 was not generally available to the public.

131. The issue of publication and dissemination of the Act of 2009 was addressed in Minister for Justice, Equality and Law Reform v. Adach 3 I.R. 402, where Hardiman J. stated at page 407 para 18:-

“It appears to me to follow from the foregoing [Article 25.4 of the Constitution] that the process of promulgation consists exclusively of the publication of a notice in Iris Oifigiuil, by direction of the President, stating that the Bill has become law. No other action appears to be necessary in order that the Bill becomes law and, in particular, the publication of the Bill itself, either in print or in electronic form, does not appear to be necessary. The Constitution might, of course, have prescribed another method of promulgating a Bill as law and it appears from an authority cited below that the European Union has in fact done so in relation to its laws. But that cannot take from the fact that the provisions of the Irish Constitution for the promulgation as law of a Bill signed by the President are as set out above.”

Hardiman J. also stated at 410 to 411, paragraph 36:-

"The question of whether a Bill passed by the Oireachtas has become law is one to be answered exclusively in terms of the Irish constitutional arrangements which are set out in Article 25. The fact, if such were to be established, that the European Union or Council of Europe have adopted a different method for promulgating laws which these bodies are entitled to make is of no relevance to the question of whether an Irish measure has become law in accordance with the Constitution. As we have seen, this envisages promulgation as a law by the publication of a notice in Iris Oifigiuil stating that the Bill has been signed by the President and has accordingly become law. It is common case that this was done. If the nature of the law thus promulgated were to permit a citizen to be deprived of his liberty under a law which was not at all accessible, this might give rise to an issue under article 5 of the European Convention on Human Rights. I express no views on the merits of any such issue. But that is not the case here: the law in question is one regulating the right of access to the Supreme Court by way of appeal, which is a type of law envisaged by the Constitution itself. Moreover, it is plain from the transcript that the respondent could have made an application for leave to appeal and that this possibility was expressly drawn to his attention by the trial judge.”

132. I apply that analysis to this case. In this case the Act of 2009 was signed into law by the President on the 21st July, 2009, a notice appeared in Iris Oifigiúil on the 24th July, 2007, and the Commencement Order was made on the 25th August, 2009. The warrant was issued in Hungary on the 17th September, 2009 and endorsed by the High Court on the 14th October, 2009. Thus, the Bill had become law prior to the steps taken in Hungary or by the High Court.

133. The appellant was not arrested until the 10th November, 2010, by which time the Act of 2009 had been published and disseminated. Thus, there was no question of the appellant being deprived of his liberty under a law which was not accessible. Further, the Minister was acting in accordance with the law when the initial steps were taken under this EAW. Consequently, I find no merit in this ground of appeal.

Conclusion
134. I have considered carefully the issues raised by the appellant on this appeal. For the reasons stated on the issues referred to above, I would dismiss the appeal. Further, no other issue canvassed warrants the prohibition of the appellant’s surrender. Consequently I would dismiss the appeal and affirm the order of the High Court that the appellant be surrendered to such person duly authorised by the Republic of Hungary to receive him.

Appendix

Chronology

9 April 2000 Date of accident.

10 April 2000 Appellant attends at police station and gives

statement.

28 August 2000 Appellant writes to police seeking return of

passport.

19 September 2000 Appellant departs for Ireland.

9 October 2000 Appellant returns to Hungary.

November 2000 Appellant due to return to Ireland.

7 June 2001 Appellant furnished with indictment.

14 June 2001 Appellant writes letter to be passed on to Court asking that his presence be excused.

19 June 2001 Original trial date.

April 2002 New trial date.

7 May 2002 Date trial ultimately proceeds.

8 November 2002 Appeal Court decision handed down.

1 May 2004 Hungary joins EU

5 May 2004 Hungary designated under the Act of 2003

12 October 2004 International arrest warrant issues

April 2005 (date unspecified) First warrant issues

16 June 2005 First warrant transmitted to Minister

27 April 2005 Date on face of second warrant

20 December 2005 Application to endorse first warrant.

12 January 2006 Arrest of appellant on foot of first warrant.

29 March 2006 Second warrant delivered to Minister.

13 April 2006 Third amended warrant delivered.

19-20 December 2006 Application for surrender heard by High Court.

12 January 2007 Application refused by High Court.

30 January 2007 Notice of appeal lodged on behalf of the Minister.

3 July 2007 Hearing of Appeal by the Supreme Court. Application for surrender rejected.

25 February 2008 Reserved judgment delivered by Supreme Court.

21 July 2009 Criminal Justice (Miscellaneous Provisions) Act 2009 enacted by the Oireachtas; “fled” requirement removed.

24 July 2009 Iris Oifigiuil notice re Act of 2009

25 August 2009 Relevant sections of 2009 Act come into force (S.I. 330 of 2009).

17 September 2009 Date of issue on face of fourth warrant.

14 October 2009 Warrant endorsed by High Court.

3 November 2009 Text of Act of 2009 published by Government Publications

10 November 2009 Appellant is arrested.

21 May 2010 Letter from Central Authority, Department of Justice to Ministry of Justice Hungary "The appellant claims that the EAW does not comply with section 11(1)(g)(iii) of the EAW Act, 2003 in that it does not set out the penalties of which the sentence consists of. This appears to be a reference to the fact that the EAW does not record that the final 18 months of the three year sentence were "suspended" (using our terminology) by the Pest County Court at second instance.

The variation of sentence at second instance is not referred to on the face of the EAW. Please confirm whether the sentence was varied at second instance and whether this is the sentence for which the appellant’s surrender is sought?”

14 June 2010 Letter from Ministry of Justice Hungary to Central Authority "the duration of the remaining imprisonment sentence to be served is 3 years.

22 June 2010 Case at hearing in High Court.

23 June 2010 Case at hearing in High Court.

24 June 2010 Case at hearing in High Court.

22 July 2010 Case at hearing in High Court.

11 February 2011 High Court orders surrender of appellant.

9 March 2011 High Court certifies appeal raises points of law of exceptional public importance.

9 November 2011 Appellant surrenders bail.

31 January 2012 Appeal at hearing in Supreme Court

1 February 2012 Appeal at hearing in Supreme Court

2 February 2012 Appeal at hearing in Supreme Court

15 February 2012 Appeal at hearing in Supreme Court

19 June 2012 Judgment in Supreme Court

Judgment delivered on the 19th day of June 2012 by Murray J.

1. I concur with the judgment of the Chief Justice and would also dismiss the appeal. The facts and circumstances of the case, including relevant legislative provisions and amendments to them, are set out in her judgment.

2. In concurring I propose to make some brief observations on certain aspects of the case, and to give my considered view on the issue arising under s.27 of the Interpretation Act, 2005.

3. Most, and certainly the most salient, arguments made on behalf of the appellant, Mr. Tobin, stem in one form or another from the fact that there had been a previous unsuccessful application by the Minister for his surrender to Hungary on foot of a European Arrest Warrant in respect of the sentence imposed for the same offence. The application now before the Court is made on a newly issued European Arrest Warrant in effectively the same terms in respect of the same offence and judicial sentence which had been imposed on the appellant after his conviction in Hungary.

4. It is not in issue that at all material times, there was, and continues to be, an obligation under E.U. law on the State to give effect to the Framework Decision establishing the system of surrender on foot of European Arrest Warrants. That means that the State has at all times had a duty to give effect in national legislation to the system for surrender provided for in the Framework Decision without creating any obstacles to surrender of a person wanted for prosecution on criminal offence, or to serve a judicially imposed term of imprisonment, other than those provided for or envisaged by the Framework Decision.

5. Section 10 of the European Arrest Warrant Act, 2003, as amended by s.6 of the Criminal Justice (Miscellaneous Provisions) Act, 2009 (which removed the requirement that the person sought should have “fled” as a precondition to surrender) was, of course, intended to give full effect to that obligation. The European Framework Decision means that each Member State of the European Union, including Ireland and Hungary, are entitled to expect that every other Member State would surrender to them persons wanted for prosecution or to serve a sentence after conviction on foot of any European Arrest Warrant issued in conformity with the requirements of the Framework Decision.

6. The various judgments delivered today in this case do not give rise to any decision of this Court, impugning the validity, as such, of the European Arrest Warrant on which the present application is based. Nor do they give rise to a decision of the Court that this application constitutes an abuse of process. On the contrary, a majority of the Court has decided to reject that ground of appeal.

7. At all material times the appellant is, and remains, a person who stands convicted of a serious criminal offence in a Member State of the European Union, and in respect of whom there is an outstanding European Arrest Warrant seeking his surrender which, as far as this Court is concerned, has been lawfully and duly issued by a judicial authority in Hungary, in accordance with the law of the European Union. Notwithstanding the order to be made by this Court today that warrant remains enforceable throughout the European Union, other than Ireland.

8. On the question of res judicata I would observe that no issue concerning the application of that doctrine arises in this case, the parties having acknowledged the established principle that the doctrine does not apply to extradition cases. (The general application of the doctrine of res judicata should not be confused with the subsidiary principle of issue estoppel, which would apply, or with other issues). For example, in the written submissions it was stated on behalf of the appellant “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 that the precise legal issue which was determined in the first set of proceedings – whether Mr. Tobin had fled from Hungary, and could 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 issues of res judicata arise”. Accordingly, no argument was made and no decision required on the issue of res judicata.

9. The fact that this is a second application for the surrender of the appellant, who over the years has resisted and refused to comply with the order and sentence of a court of trial at which he was legally represented on his own instructions, does not in my view, and for the reasons set out in the judgment of the Chief Justice, give rise to valid grounds for refusing his surrender on foot of the European Arrest Warrant now before the Court, and in accordance with the Act of 2003, as amended.

Section 27(1)(c) of the Interpretation Act, 2005

10. In one of his more substantive grounds of appeal the appellant has sought to rely on the provisions of s.27(1)(c) of the Interpretation Act, 2005. In doing so he claims to be the beneficiary of a right accrued under s.10 of the European Arrest Warrant Act, 2003 in the form in which it stood at the time when the first application for his surrender was decided. That is to say, when s.10 of the Act required the applicant for surrender to establish that a person who is sought for the purpose of serving a judicially imposed sentence of imprisonment had “fled” the requesting State prior to serving or completing such sentence. That requirement was, of course, repealed by s.6 of the Act of 2009, referred to above.

11. Section 27(1) and (2) of the Interpretation Act, 2005, provide as follows:

“27(1)

Where an enactment is repealed, the repeal does not

—

(a) revive anything not in force or not existing immediately before the repeal,

(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment,

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment,

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence against or contravention of the enactment which was committed before the repeal, or

(e) prejudice or affect any legal proceedings (civil or criminal) pending at the time of the repeal in respect of any such right, privilege, obligation, liability, offence or contravention.

as if the enactment had not been repealed

.”

(emphasis added)

12. Section 27 is limited in its application by the provisions of s.4 of the Act of 2005 which specified that the presumptions and rules set out in the Act applied 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”.

13. Section 27(1)(c) does not create the presumption against interference with any general right. It refers only to a right “accrued or incurred under the enactment”, that is to say, the enactment repealed. The reference to an enactment includes any portion of an Act, as stated in s.2 of the Interpretation Act, 2005.

14. It is well established by the case law of this Court that a right does not “accrue” or become a vested right, under an enactment of the Oireachtas, simply because there is a provision in such enactment for the exercise of a right (see for example J. Wood & Co. v. Wicklow County Council [1995] ILRM 51, and McKone Estates Ltd. V. Dublin County Council [1995] 3 ILRM 283). As our case law makes clear, a statutory right is only deemed to accrue or vest for the purposes of s.27 (although obviously the case law refers to earlier, although similar, provisions of the Interpretation Act, 1937) when something specific occurs which gives rise to an accrued right under a Statute. This principle is not in issue in this case. Neither was it really contested that the decision of this Court to refuse the application for the appellant’s surrender in the earlier proceedings was an occurrence which gave rise to an accrued right under the Statute. There was no debate, or no significant argument, between the parties as to what may constitute an accrued or vested right for the purposes of s.27 of the Interpretation Act. One proceeds on the basis that the decision in the first proceedings concerning the appellant, having been decided in his favour, gave rise to an accrued right under the enactment. Clearly, that right was the right to resist his surrender to Hungary on the grounds that he had not “fled” within the meaning of the Act.

15. The appellant argues that on the basis of s.27(1) and (2) of the Interpretation Act, 2005 there is a presumption that the Oireachtas did not intend to deprive him of that accrued right when enacting the amending legislation. On the basis that there was an accepted accrued or vested right in the appellant, the question is whether the presumption which he relies upon is inapplicable in this case on the basis that “a contrary intention” appears in the amending enactment itself within the meaning of s.4 of the Interpretation Act, 2005.

16. Accordingly, the issue which arises in this context is purely one of statutory interpretation. The primary question of interpretation left to the Court is whether a contrary intention within the meaning of s.4 is to be found in the enactment as amended.

17. That interpretive issue fall to be determined in accordance with the principles laid down in our case law (although they are not issues which have arisen with any degree of frequency) such as the judgment of this Court in Hosie v. Kildare County Council [1928] I.R. 47 at 68, and a judgment of the High Court in L.M. v. Devally [1997] 2 ILRM 369.

18. Before referring to these and other cases I think it would be helpful to look at the provision of s.27 of the Act of 2005 briefly in its historical context.

19. I think, however, it is important to highlight at this point that the issues of statutory interpretation to which s.27 of the Interpretation Act give rise do not, by definition, relate to, and should not be confused with, the issues of res judicata, issue estoppel, retrospective effect and the binding effect of judgments in proceedings inter parties, civil or criminal, which are intended to be final and complete as concerns those parties.

20. As already pointed out, the Court is concerned here with whether a right accrued under a specific enactment is one which was not affected by the repeal of a provision of the enactment under which the right accrued, because no contrary intention appears in the enactment.

Historical Context

21. Section 27 of the Interpretation Act, 2005 reflects very closely the wording of s.38(2) of the Interpretation Act, 1889 when statutory savers of this nature were first introduced in that form. Our intervening Interpretation Act, 1937, at s.21, contained the same, or almost exactly the same, wording.

22. The Interpretation Act, 1889 provided that mere repeal did not:

“Revive anything not in force or not existing at the time when the repeal take affect; or

Affect the previous operation of any enactment so repealed; or

anything duly done or suffered under any enactment so repealed; or

Affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

Affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

Affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceedings, or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture, or punishment may be imposed as if the repealing Act had not been passed.” (emphasis added)

23. The provision preserving the continued exercise of rights or remedy as if the repealing Act had not been passed is now reflected in sub-section 2 of s.27 of the Act of 2005.

24. Prior to the Act of 1889 it had been usual to insert saving provisions to the foregoing effect in all Acts in which repeals were effected.

25. As is pointed out in Dodd’s Statutory Interpretation in Ireland [Tottel Publishing, 2008] to understand the genesis of such provisions it is necessary to understand the position that prevailed at common law arising from the repeal of a Statute. As the author of that book points out “at common law, the repeal of an enactment made it as if the enactment had never been, except as to matters past and closed. This went so far as to revive enactments repealed by the enactment repealed.” (at p.78). The effect of the repealing of a Statute as described by Tindal, C.J. in Kay v. Goodwin (6 Bing., at 582) was cited with approval by Murnaghan J. when he delivered the judgment of this Court in Hosie v. Kildare County Council (cited above). Tindal, C.J. stated “I take the effect of repealing a Statute to be to obliterate it as completely from the record of the parliament as if it had never been passed; and must be considered as a law that never existed, except for the purposes of those actions, which were commenced, prosecuted, and concluded whilst it was an existing law.”

26. As Sullivan, P. pointed out in his High Court judgment in the same case, having also cited Tindal, C.J. “In order to prevent the hardship which might result from the application of this principle in many cases, it became usual to insert in repealing statutes provisions in the nature of saving clauses, protecting rights which had been acquired under the statute repealed. The necessity for such saving clauses is now obviated by the Interpretation Act, 1889, sect. 38, sub-sect. 2, which provides that, unless the contrary intention appears, the repeal of any enactment shall not affect any rights or privileges acquired or accrued under the enactment so repealed.”

27. Accordingly, the general savers introduced by the Act of 1889 were introduced in order to avoid regurgitating in a pedantic fashion savers in every Act which repealed (which term includes, for this purpose, amended) an earlier Act. The saver provisions inserted in the Interpretation Act of 1889 were intended, in certain circumstances, to address a range of possible consequences which could flow from the enactment of a repealing Act if the common law consequences of a repeal were to apply in a unfettered fashion.

28. Thus, in certain circumstances a party to whom a right under the repealed enactment had accrued could rely on that enactment as if it had not been repealed

General Principles

29. Broad or general principles relating to the interpretation of a saving provision such as s.27 were considered by this Court in Hosie v. Kildare County Council [1927] I.R. 47 at 68. In that case the Court considered the interpretation of s.38, subs.2 of the Interpretation Act, 1889 (cited above), which very much corresponds with s.27(1)(c) and (2) of the Act of 2005. The actual conclusion of this Court in that case was that by necessary implication there was a “contrary intention” in the amending Act which prevented the applicant from relying on the presumption contained in s.38, subs.2. As one might expect, the actual conclusion or result in the case turned on the particularities of the legislation in issue, as is likely to be the position in any particular case involving the interpretation of legislation, in the light of such statutory savers. This could also be said of the result in the case, on a similar issue, in L.M. v. Devally (cited above).

30. However, this Court did refer to general principles which are relevant to the interpretation of a saving clause such as s.38 in that case and which clearly, in my view, apply by analogy to the corresponding provision to be found in s.27 of the Act of 2005.

31. Murnaghan, J. delivered the judgment of the Court, and having referred to the dicta of Tindal, C.J. in Kay v. Goodwin (recited above), he went on to make specific reference to the statutory provisions which were relevant to the case in question, and of course in particular referred to s.38(2) of the Interpretation Act, 1889. As regards a consideration of s.38, Murnaghan, J. stated:

“The onus is upon those who say that existing rights are to be impaired, to point to such intention appearing in the repealing enactment. The contrary intention does not appear in express words, but the room for doubt is whether such a contrary intention does appear by plain implication.”

(This was a reference to the particular provisions of the legislation in question.)

He continued:

“Lord Hatherley, in Pardo v. Bingham [L.R. 4 Ch. 735], states that in seeking to ascertain the intention of the Legislature, regard must be had to the general scope of the Act, to the remedy sought to be applied, to the former state of the law, and to what was in the contemplation of the Legislature.”

32. Having examined all the relevant legislation, the Court in that case concluded, having regard to the provisions of the Act as a whole, that there was a “contrary intention” which the Interpretation Act of 1889 contemplated, “not in express words, but by necessary implication”.

33. A similar interpretative approach was adopted by Carroll, J. in L.M. v. Devally (cited above). In that case the parties had, in earlier proceedings, entered into an agreement pursuant to s.10(4) of the Illegitimate Children (Affiliation Orders) Act, 1930, as amended by the Family Law (Maintenance of Spouses & Children) Act, 1976. In those circumstances such an agreement was stated in the Act to be “a complete bar to any further proceedings under this Act in respect of such child against the putative father…”.

34. The foregoing Act of 1976 was amended by s.18 of the Status of Children Act, 1987 by the insertion of a new section which permitted the Court, in respect of parents of a dependant child who are not married, to make a maintenance order concerning the child, should it appear to the Court on application by one of the parents that the other has failed to provide such maintenance as is proper in the circumstances. Again, the actual result in this case was governed by the particularities of the various legislative provisions, but one of the issues determined by the learned High Court judge was whether the corresponding presumption in s.21(1)(c) of the Interpretation Act, 1937 ran in favour of the putative father against, whom the claim for maintenance was made, on account of a right accrued to him under the legislation by virtue of the agreement which had been made between the parties and previously approved by the court under the Act of 1930.

35. What is relevant in that case is the interpretative approach of Carroll, J. which is consistent with that outlined by this Court in Hosie v. Kildare County Council. In the course of deciding in favour of the applicant mother, on this point, Carroll, J. stated:

“The exclusion of a non-marital child from benefiting from an order of maintenance under the 1976 Act (as amended by the 1987 Act) by reason of a pre-existing agreement would be

contrary to the purpose of the 1987 Act which was to confer equality on children (see long title)

.”

(emphasis added)

Here the purpose of the Act as expressed in the long title was seen as an important consideration in determining the true intention of the amended Act.

36. Having regard to the decision in Hosie, I would conclude that the following general principles should be followed (without intending them to be all inclusive) in ascertaining whether an Act which has been the subject of a repeal (which includes an amendment) should be interpreted as expressing a “contrary intention” so as to oust the application of s.27(1)(c) of the Act of 2005:

(a) The onus is on the party asserting that existing rights are to be impaired to point to such an intention appearing in the repealing enactment. I would add that this must I feel be understood as not compromising the function of the court itself to determine, in the final analysis, whether or not it is satisfied that a contrary intention appears or should be inferred from the Act. Perhaps, more important, this judicial dicta on the onus placed on a party may have little or any relevance to the interpretative task of the court when exercising its function and obligation to give to a national measure a conforming interpretation in accordance with European law, to the extent reasonably possible.

(b) It is not necessary that a contrary intention within the meaning of s.4 of the Act be stated in express terms. That may arise by necessary implication.

(d) In seeking to ascertain that intention regard should be had to:

(i) the general scope of the Act,

(ii) the remedy sought to be applied,

(iii) the former state of the law, and

(iv) what was in the contemplation of the legislature by reference to the purpose of the Act.

The Purpose of the Amending Act

37. Considering the purpose and, indeed, genesis of the relevant amending provisions contained in s.6 of the Act of 2009 a brief reference to the obvious purpose of the principal Act, the Act of 2003, should be made.

38. As is self-evident from a reading of the Act of 2003, including its long title, its sole and certainly primary purpose was to give effect to the Council Framework Decision on the establishment of a system of European Arrest Warrants. This also necessitated or rendered it appropriate to amend the Extradition Act, 1965 and other Acts.

39. In doing so the State was fulfilling the obligations accepted by Ireland under the various European treaties as reflected in s.2(1) of the European Communities Act, 1972 as inserted by the European Union Act, 2009. I make more specific reference to this later.

40. It is not in contention in these proceedings, and indeed fully accepted, that the provision originally in s.10 whereby a person in the position of the appellant must be shown to have “fled” the requesting state before his surrender could be ordered was not in conformity with the Framework Decision.

41. Accordingly, as long as that provision remained in force, the State was acting in breach of its obligations under the treaties and the Framework Decision.

42. When this Court decided to refuse the application for an order to surrender the appellant in the first application concerning the appellant it did so in accordance with the specific terms of the Act as it then was. The Act of 2009 contains a series of amendments to the European Arrest Warrant Act, 2003, and indeed s.6 itself contains amendments other than the one relating to the precondition as to “fled”. However, it is not really in contention that it was the outcome of those earlier proceedings which, at the very least, highlighted and brought to the fore the failure of the Oireachtas in that respect to give full effect to the Framework Decision as required by law. It is difficult to imagine that the Hungarian authorities did not raise some bone of contention with the State or the European Commission as to why their otherwise entirely legitimate request for surrender was refused. Of course, we do not know whether that happened. On the other hand, it is accepted that the State realised that the Act of 2003 in that form left Ireland in breach of its obligations to give an effective and full implementation to the Framework Decision. As counsel for the Minister stated, a “mistake” had been made in enacting the legislation in that form. As a consequence the amending provision was introduced and passed.

43. Counsel on behalf of the appellant also pointed out that Mr. Tobin was a unique case being the only person who appears to have benefited from the defence of not having “fled” within the meaning of the relevant part of s.10 as it then was. One does not actually know if that is the case, but it seems likely to have been.

44. There was some debate in the course of argument as to whether the amendment was intended to target Mr. Tobin’s case specifically, and if not what were the implications as concern s.27(1)(c). From time to time cases coming before the courts will expose in one form or another deficiencies or lacunae in legislation, or simply condemn a provision as being unconstitutional. Inevitably, and again from time to time, the State will, in the light of the outcome of a particular case, identify the need for amending legislation to be introduced when a Bill appropriate for the inclusion of such amendment is being brought before the Oireachtas. Thus there may be a considerable passage of time before a legislative remedy is enacted unless such an appropriate Bill is in the offing. On the other hand, the State may consider it a matter sufficiently important or urgent as to require the initiation of specific repealing or amending legislation in the light of the outcome of a particular case. Indeed, in this case the amendment was included in a sort of catch all Bill which became the Criminal Justice (Miscellaneous Provisions) Act, 2009. Obviously, the Oireachtas does not have the constitutional power to set aside a decision in a particular case, and I do not consider there is any question of that in this instance, and in any event it is a separate issue and does not arise in this context. What the Oireachtas can do is to change the law generally and prospectively. That is a necessary and essential prerogative of the Oireachtas in the exercise of its legislative functions. It can of course pass legislation having retrospective effect in certain circumstances, but there is no issue concerning that in this instance.

45. It seems to me clear that the amending provision, namely s.6 of the Act of 2009, is general in its form, and indeed has the classical form of general amending legislation so that the principal Act, once amended, will be generally applied in its new form in all cases coming under its rubric after it becomes law. That, of course, still leaves open the question as to the application of s.27 of the Interpretation Act.

46. It is the Oireachtas, not the government of the day nor a Minister, which bears constitutional responsibility for the adoption of legislation (see Crilly v. Farrington [2001] 3 IR 251). The Oireachtas may, or may not be, aware of particular cases or classes of cases decided under the legislation prior to its proposed repeal. In this case the Oireachtas may, or may not have been, aware that the appellant was the only case which was decided in the courts under the repealed legislation, if that was in fact the case. All of this seems to me to be irrelevant to the issue under consideration because it is not necessary for the Oireachtas to make reference to particular cases or particular class of cases or particular classes of persons who have been affected in the past by legislation when repealing legislation in clear and uncertain terms and stating what the law should generally be in the future. So the fact that no special mention was made of the earlier Tobin case in one form or another in the legislation cannot, in my view, be of any interpretive significance. It would be unusual, from any perspective, to refer to past cases individually or collectively in legislation intended to have general application for the future.

47. As was made clear in Hosie a saving provision such as s.27 of the Interpretation Act, 2005 does not fall to be disapplied only when there is an express saving or declared intention to that effect, or in respect of earlier cases. As outlined above, a contrary intention to the application of such a provision may arise by implication having regard to the terms, nature and purpose of the Act.

The Intention of the Oireachtas

48. In its former state s.10 was in breach of Ireland’s obligations under the law of the European Union. This had to be remedied, not as a mater of discretion but as an obligation under the law. This is what the Oireachtas set out to do.

49. In order to place the duty to remedy such a breach in context it might be as well to recall some of the context in which the obligation arises. Section 2(1) of the Act of 1972 provides that “the following shall be binding on the State and shall be part of domestic law thereof under the conditions laid down in the treaties governing the European Union:” The section goes on to refer to those treaties and to Acts adopted by the institutions of the European Union. It hardly needs stating that these are obligations that arise as part of our national law and not simply something that is owed at an international level.

50. In the oft referred to Pupino case (C-105/03 2005 ECR I-05285) the Court of Justice took the opportunity to emphasise once again the duties of Member States to give effect to community measures, including Framework Decisions, at national level. This is to be differentiated from the conforming interpretation of duty on national courts, which is also dealt with in that case and which will be referred to later. In that case the court noted that the wording of Article 34(2)(b) EU “confers a binding character on framework decisions in the sense that they ‘bind’ the Member States ‘as to the result to be achieved but shall leave to the national authorities the choice of form and method’.” (para. 33)

51. At paragraph 42 the court states “It would be difficult for the Union to carry out its task effectively if the principle of loyal co-operation, requiring in particular that Member States take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under European Law, were not also binding in the area of police and judicial co-operation in criminal matters, which is moreover entirely based on co-operation between Member States and the institutions, …”.

52. It is abundantly clear from the terms of the provision amending s.10 of the Act of 2010 that the Oireachtas, in accordance with its obligations under the law, sought to remove, once and for all, the requirement as to a person having “fled” as previously contained in the section. This was not simply a policy choice, it was an obligation under the treaties to ensure that national legislation gave full and proper effect to a community measure, in this instance a Framework Decision. Failure to do so would also have been in breach of the fundamental principle of Union law of loyal co-operation by a Member State when in a case such as this the State was admittedly aware that its legislation was in breach of European Union law.

53. That the amended s.10, with the requirement as to “fled” removed should have general application to all applications under the new s.10 whether surrender of a person on foot of a European Arrest Warrant is, in itself, unremarkable. It is clear that it was given such general application to all future European Arrest Warrants in order to conform with the Framework Decision and to abide by legal obligations to do so.

54. If the Act, as amended by s.6 of the Act of 2009, were to be interpreted as applying to some requests from Member States for surrender on foot of a European Arrest Warrant and not to others (or the appellant’s case solely), even though all of the warrants issued have been issued in accordance with European Union law and particularly the Framework Decision, then the State could not be said to have fulfilled its obligations under European Union law. Such an interpretation would defeat the avowed purpose of the Act.

55. On the contrary, the purpose of the amendment is to bring the legislation in full conformity with the Framework Decision. It was remedying a breach of obligation by the State for all future cases. I think it is manifest that the Act did not intend to only partially remedy the State’s failure to observe its obligation in this context.

56. In all the foregoing circumstances, having regard to the nature and object of the amendment and the obligations imposed on the State when legislating on the system for European Arrest Warrants, that it was the intention of the Oireachtas that the Act would apply to all applications for surrender governed by s.10 of the Act, without any exception in favour of a person, such as the appellant, being the subject of an unsuccessful application under s.10 prior to the amendment.

57. Accordingly, I conclude that the enactment in question contained, by necessary implication, a contrary intention, within the meaning of s.4 of the Interpretation Act, to the application of the presumption contained in s.27 of that Act..

Conforming Interpretation under EU Law

58. The Pupino case, referred to above, addresses the duty of national courts, who also have responsibility for the application and interpretation of European Union law, to interpret national law, as far as possible, in conformity with the law of the European Union.

59. This applies generally, but obviously with all the more force when the national measure being interpreted expressly states, as is the case here, that its purposes is to give effect to the E.U. measure. It will be recalled that the long title to the amending legislation expressly states that its purpose is to give “further effect” to the Framework Decision in question. Pupino has, of course, been referred to an relied upon in a number of cases in this Court. (See, for example, MJELR v. Altaravicius [2006] 3 IR 148 and MJELR v. Stapleton [2008] 1 I.R. 44).

60. The Pupino decision did not involve any radical or novel statement of principle in the field of Union law, since essentially it concluded that the principles of conforming interpretation of national law which always applied to Directives applied to the same effect to the newer form of legislation, namely a Framework Decision. (See for example paragraph 31 of Pupino).

61. Under the principles well established it is worth recalling that at paragraph 43 of its judgment the Court of Justice stated:

62. The duty of giving a conforming interpretation conferred on national courts excludes, it seems to me, the exercise of that duty being affected by any onus placed on one of the parties in proceedings. Once the issue of interpreting a national law in the light of European Union law properly arises for decision in a case, the duty to give a conforming interpretation by the court concerned applies.

63. At paragraph 47 the Court of Justice fully acknowledged that this did not mean that national law should be interpreted contra legem, while at the same time emphasising the duty of courts to avoid, as far as possible, an interpretative result that was contrary to that provided by a framework decision. In that paragraph the Court stated:

“The obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law ceases when the latter cannot receive an application which would lead to a result compatible with that envisaged by that framework decision. In other words, the principle of interpretation in conformity with Community law cannot serve as the basis for an interpretation of national law contra legem. That principle does, however, require that, where necessary, the national court consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision.”

64. Having regard to the fact that s.10 of the Act of 2003 in its new amended form was amended so as to conform with and give effect to the Framework Decision, I am of the view that the Court is bound to give a conforming interpretation, namely that it applies to all lawful applications for surrender made for the purpose of the Framework Decision after the coming into force of the amended Act, without exception. I do not consider that there is anything in the enactment, or indeed the Interpretation Act, 2005, which would support a contention that such an interpretation would be contra legem.

65. Accordingly, I conclude that this ground of appeal of the appellant is not well founded.

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