Peter Bolger (applicant) v Patrick O'Toole, the Criminal Assets Bureau, London Metropolitan Police Commissioner, District Justice Brian Kirby, the District Court and Patrick Byrne (respondents)

Judicial Review - Extradition - Estoppel - Whether there is an estoppel which prevents the re-initiation of failed extradition proceedings - Nature of function exercised by District Court - Extradition Act 1965, sections 45(2) and 47(3).

The High Court (before Mr Justice O'Neill); judgment delivered 8 June 2000.

A LAWFUL re-arrest can follow an unlawful arrest and consequently, where a second set of extradition proceedings is launched, defects in the arrest warrants in the first set of proceedings having been corrected, there is no estoppel which prevents the re-initiation of the failed extradition proceedings.

Mr Justice O'Neill so held in dismissing the applicant's claim.

Michael Forde SC and Richard Humphreys BL for the applicant; Peter Charleton SC and Robert Barron BL for the last named respondent.

Mr Justice O'Neill set out the facts of the case stating that these judicial review proceedings arose out of the arrest of the applicant on 20 October 1998 on foot of 14 extradition warrants obtained on 25 June 1998 in Bow Street Magistrates Court, London. These warrants were endorsed by the first named respondent on 19 October 1998. This was the second attempt to extradite the applicant on foot of extradition warrants.

The applicant had successfully asserted in the District Court, in relation to the first extradition attempt, that the warrants on foot of which he was arrested were defective in two respects and as a consequence his arrest was unlawful. Firstly, the warrants did not specify the location of the offence. Secondly, the recitals in all of the warrants stated that the applicant was an offender unlawfully at large from Her Majesty's Prison, Brixton; this was contradicted by evidence, from a police constable from England, to the effect that the applicant had absconded, while on bail, in the course of his trial, a fact which had never been in dispute. In the words of Mr Justice McCarthy in McMahon v Leahy [1984] IR 525, at 547, "essentially the extradition application was never properly launched". Judge Windle concluded that the warrants were bad and hence the arrest was unlawful and he made an order under section 47(3) of the Extradition Act 1965 discharging the applicant.

The present matters came before the court as a result of an order of Mr Justice O'Higgins dated 2 November 1998, whereby leave was granted to the applicant to apply for judicial review on the ground of res judicata. The applicant was granted leave to apply for an order of prohibition, against District Judge Brian Kirby or any other judge of the Dublin Metropolitan District Court and the District Court, forbidding the taking of any further steps in the second set of extradition proceedings. Mr Justice O'Neill stated that, as was apparent from the new warrants, the two issues raised by the applicant in the District Court on foot of the first extradition attempt had been addressed. The issue which arose for determination in this hearing was whether the issues, which were sought to be tried and determined in the District Court, in the intended extradition proceedings, on foot of the warrants obtained on 25 June 1998, were the same issues which were heard and determined by Judge Windle finally on 10 October 1996.

The court noted that it had been conceded by counsel opposing the application that the jurisdiction exercised by a District Judge under section 47 of the Extradition Act 1965 involved a function which was judicial rather than administrative in nature. Thus an estoppel, either of the cause of action type or issue estoppel, could arise as between one proceeding and another taken under section 47 of this Act. On behalf of the applicant it was conceded that a lawful arrest could be made after an invalid arrest and indeed this proposition was amply illustrated in the authorities and in particular, in Hegarty v The Governor of Limerick Prison [1998] 1 IR 412, Dun- can v The Governor of Portlaoise Prison (No 2) [1998] 1 IR 433, Cully v The Governor of Portlaoise Prison [1998] 1 IR 443, and Quinlivan v The Governor of Portlaoise Prison [1998] 1 IR 456.

Mr Justice O'Neill held that it necessarily followed from the fact that there could be a lawful re-arrest following an unlawful one, that the endorsing by the first named respondent of the warrants obtained from Bow Street Magistrates Court on 25 June 1998 and the subsequent arrest of the applicant on foot of those warrants was permissible. Upon being brought before the District Court it would be open to the applicant to raise any matter which might impinge on the lawfulness of his arrest and upon so doing, it would be necessary for the District Judge, pursuant to his obligation to vindicate the constitutional rights of the applicant, to hear and determine such issues as were raised by the applicant which would necessarily impinge on his right to liberty.

The two matters raised in the District Court proceedings in 1996 having been corrected in the warrants which were issued on 26 June 1998, it would seem unlikely that these issues would arise for determination again. The court held that the applicant might discover other defects in the process not hitherto raised and if this occurred there could be no doubt that these would be issues which had not heretofore been heard or determined and no question of res judicata could arise.

Mr Justice O'Neill held that it if it was accepted that there could be a lawful subsequent arrest with the necessary consequence of initiating the procedure under section 45(2) of the Extradition Act 1965, the applicant's primary submission to the effect that there was an estoppel which prevented the re-initiation of failed extradition proceedings, must be rejected. It then remained to be decided, whether in the course of the proceedings, which followed upon the applicant being taken before the District Court pursuant to section 45(2), there would arise an issue in respect of which issue estoppel could arise, namely, whether that issue had been determined between the same parties in the previous proceedings. As it was not yet apparent what issues would arise in the District Court proceedings now initiated, it was manifestly premature to say whether any issue estoppel would arise.

Accordingly, Mr Justice O'Neill held that the applicant's claim in these proceedings must be dismissed.

Solicitors: Haughtons (Dun Laoghaire) for the applicant; Chief State Solicitor for the last named respondent.