Supreme Court majority rules against extradition
SUPREME COURT JUDGMENT:Minister for Justice -v- Tobin
Neutral citation (2012)IESC 37
Judgments were delivered on June 19th 2012 by the Chief Justice, Mrs Justice Susan Denham, Mr Justice Adrian Hardiman, Mr Justice John Murray, Mr Justice Nial Fennelly and Mr Justice Donal O’Donnell.
The court decided by a majority of three to two to allow an appeal by Ciarán Tobin against a High Court order that he should be surrendered to Hungary to serve a sentence for his involvement in a road traffic accident in which two children died. Mr Justice Hardiman, Mr Justice Fennelly and Mr Justice O’Donnell allowed the appeal, which was dismissed by Mrs Justice Denham and Mr Justice Murray.
The accident happened on April 9th, 2000, while Mr Tobin was working in Hungary. He was charged with negligent driving causing death. The trial took place in May 2002. Mr Tobin had returned to Ireland by that stage and opted to be represented at the trial by a lawyer, as permitted under Hungarian law. He was convicted and sentenced to three years imprisonment.
The Hungarian authorities sought his extradition to serve his sentence and the Irish central authority sought to have him surrendered on the basis that he had “fled” Hungary, although he had left openly on the completion of his term of work with his Irish employer in Hungary, after the Hungarian authorities returned his passport. The proceedings began in 2004 and the High Court refused to order his surrender. The State appealed to the Supreme Court, which upheld the High Court decision in July 2007.
Following the Supreme Court decision in July 2007, in July 2009 the Oireachtas enacted the Criminal Justice (Miscellaneous Provisions) Act 2009. This removed the reference to “fled” from the original European Arrest Warrant Act. The Act came into operation in August and Mr Tobin was arrested again under the new Act in November that year.
The second application for his surrender came before the High Court in June 2010. Judgment was delivered seven months later and the Supreme Court heard the appeal a year after that.
In the meantime, he voluntarily relinquished his bail and entered custody in Ireland in November in the hope that this would be taken into account in the amount of time he would have to spend away from his family if surrendered. The High Court certified the case for appeal on a point of law of exceptional public importance, asking specifically if there had been an abuse of process.
Decision of Mrs Justice Denham
Mrs Justice Denham said the issue was whether the second warrant was substantially the same as the first. The fundamental facts were the same, except that the national law has been altered. It was necessary to consider whether, in all the circumstances, there had been a cumulative effect so as to make it an abuse of process. The issuing of a second warrant was not in itself an abuse of process.
No broad issue was determined in the first case. The specific issue of whether Mr Tobin had “fled” was raised and determined in his favour. There was now a new warrant and the issue of whether he had “fled” did not arise.
The very nature of abuse of process cases was fact-specific. The Minister was entitled to and had a duty to act within the law as it stood at the time of the first warrant. The Oireachtas was entitled to amend the law, as it did in this case. The current request made by Hungary was made after the change in the law. The Oireachtas did not seek to interfere with a specific case or decision of the courts, thus there was no breach of the separation of powers. The amendment of the national law did not amount to an abuse of process.
In relation to the claim that the 2005 Act did not apply to the appellant because he could not serve his sentence in Ireland, she said there was no mandatory requirement under the framework decision or the 2003 Act that he had the right to serve the sentence in the requested state. This provision, and the provision in Hungarian extradition law that its citizens would not be extradited in similar circumstances but would serve sentences in Hungary, arose from optional provisions in the framework decision which Ireland had chosen not to implement.
For all these reasons she dismissed the appeal, as did Mr Justice Murray.
The full judgment is on courts.ie.
Brian Murray SC, David Keane SC and Eoin Carolan BL, instructed by Garret Sheehan for the appellant; Maurice Collins SC and Ronan Kennedy BL, instructed by Chief State Solicitor, for the State.