Attorney General v Anthony Abimbola

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 01 November 2006
• Neutral Citation: [2006] IEHC 325
• Court: High Court
• Date: 01 November 2006

[2006] IEHC 325

THE HIGH COURT

[No, 47 EXT/2006]

AG v ABINBOLA (ORSE ABIMBOLA)

IN THE MATTER OF THE EXTRADITION ACT 1965

BETWEEN

THE ATTORNEY GENERAL

APPLICANT

AND

ANTHONY ABINBOLA

RESPONDENT

AG v KLIER UNREP PEART 19.7.2005 2005/3/433 IEHC 254

EXTRADITION ACT 1965 PART II

EXTRADITION ACT 1965 S37

EXTRADITION ACT 1965 S26(1)(b)

EXTRADITION ACT 1965 S26(1)(a)

CONSTITUTION ART 40.4

EUROPEAN ARREST WARRANT ACT 2003

EXTRADITION ACT 1965 (APPLICATION OF PART II) ORDER 2000 SI 474/2000

EXTRADITION ACT 1965 (PART II) (NO 12) ORDER 1976 SI 323/1976

EXTRADITION ACT 1965 (APPLICATION OF PART II) (AMENDMENT) (NO 2) ORDER SI 725/2004

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) (NO 6) ORDER SI 532/2004

EUROPEAN ARREST WARRANT ACT 2003 S3

DUNDON v GOVERNOR OF CLOVERHILL PRISON 2006 I ILRM 321

O'ROURKE v GOVERNOR OF CLOVERHILL PRISON & AG 2004 2 IR 456 2004 40 9259

EXTRADITION ACT 1965 S29

EXTRADITION ACT 1965 S29(1)(c)

EXTRADITION ACT 1965 S29(1)(d)

EXTRADITION ACT 1965 S29(1)(a)

AG v PARKE UNREP SUPREME 6.12.2004 2004/3/577

WOODS, IN RE 1970 IR 154

HENDERSON v HENDERSON 1843 3 HARE 100 67 ER 313

A (A) v MEDICAL COUNCIL & AG 2003 4 IR 302 2004 1 ILRM 372 2003 1 49

MC DONAGH, RE UNREP HENCHY 24.11.1969

GALLAGHER v GOVERNOR OF PORTLAOISE PRISON UNREP MCMAHON 25.4.1983 1983/9/2592

MURRAY v CLIFFORD UNREP MURPHY 17.12.1993 1994/5/1485

WILSON, RE UNREP SUPREME 11.7.1968

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MCDERMOTT RES JUDICATA & DOUBLE JEOPARDY 1ED 1999

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CONSTITUTION ART 34

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CONSTITUTION ART 38

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EXTRADITION ACT 1965 S29(3)

1 Mr. Justice John MacMenamindated the 1st day of Nov 2006.

2 This application involves a consideration of two essential issues. First whether a finding of law made in an Article 40 inquiry may give rise to issue estoppel in subsequent extradition proceedings. Second the applicability and effect of Peart J.'s judgment in the case of A. G. v. Klier (9 ^th July, 2005).

Background

3 The respondent in these proceedings was born on 13 ^th June, 1958 in Epe Nigeria. On 25 ^th October, 2000 he and another person were adjudged guilty by the Regional Court of Dortmund, Federal Republic of Germany, of having jointly committed rape involving the administration of a low potential neuroleptic agent to the female complainant. On foot of this conviction the Regional Court sentenced the respondent to five years and six months imprisonment. This decision was appealed to the German Federal Supreme Court of Justice, which on 15 ^th November, 2002 affirmed the decision of the Regional Court, and declared that the appeal brought by the respondent be dismissed as unfounded.

4 By the time of the latter decision the respondent had absconded, and a warrant for his arrest was issued. On 5 ^th December, 2003 the Minister for Justice, Equality and Law Reform received a request from the Federal Republic of Germany ('Germany') under Part II of the Extradition Act 1965.

5 On 20 ^th January, 2004 in a Note Verbale, the German Embassy in Dublin sent the Department of Foreign Affairs a copy and translation of relevant sections of the German Penal Code, with a appropriate certification and translation in relation to the presence of the respondent (alias Tony (Anthony) Joel) at his trial. The Legal Division of the Department of Foreign Affairs received this on 22 ^nd January, 2004. In a further Note Verbale, the Embassy included photocopies of the relevant sections of the German Criminal Code, signed and sealed in accordance with s. 37 of the Extradition Act, 1965 ('the 1965 Act'). This was sent to the same Division of the Department of Foreign Affairs on 10 ^th November, 2005 and received there four days later on 14 ^th November.

6 On 8 ^th June, 2006 a warrant for arrest of the respondent pursuant to s. 26(1)(b) of the 1965 Act was issued by this Court (Hanna J.) on foot of a certificate under s. 26(1)(a) of the Act as amended, signed by the Minister for Justice on 7 ^th June, 2006, stating that a request had been made in accordance with Part II of that Act for the extradition of the respondent.

7 On 19 ^th July, 2006 Detective Sergeant Anthony Lenihan of the Crime Branch Garda Headquarters was on duty at Solomon Manor Letterkenny Co. Donegal in possession of this warrant. He met the respondent Anthony Abinbola, identified him, and arrested him on foot of the warrant at 8.15 p.m. on 19 ^th July, 2006. In the course of this arrest the respondent was shown the original extradition request and certificate from the Minister for Justice Equality and Law Reform. Thereafter he was served with copies of these documents.

8 The day following, the respondent was brought before the High Court where Detective Sergeant Lenihan gave evidence of executing the warrant and endorsed the warrant as having been executed by himself and handed the warrant into court where it was retained.

The Article 40 Inquiry Arguments and Issues Raised

9 On Thursday 3 ^rd August, 2006 counsel for the applicant Dr. Michael Forde S.C. made an ex parteapplication for an inquiry into the lawfulness of his client's detention under Article 40.4 of the Constitution to O'Sullivan J., returnable for the following day. The matter was subsequently adjourned on Dr. Forde's application and on the following Tuesday 8 ^th August, 2006 (being during the long vacation) the matter came before O'Donovan J., O'Sullivan J. having previously ruled in favour of the respondents on the technical lawfulness of the certificate of detention.

10 The issues canvassed before the High Court on 8 ^th and 9 ^th August, 2006 in the inquiry under Article 40.4. are highly material. At the very outset of the application before O'Donovan J. Dr. Forde S..C. said the net point was:

"Whether it is possible to extradite a person to Germany under Part II of the Extradition Act 1965", by which he meant whether a request made under Part II was still lawful in the light of the introduction of amending legislation."

11 In January 2004 the European Arrest Warrant Act 2003 came into force, thereby giving effect to a new extradition regime. This new Act was applied to a number of EU member states commencing with the United Kingdom and Belgium. Dr. Forde told this court that in the course of this application it "became clear to him" that no extradition arrangement existed between Ireland and Germany, and that, as a consequence the applicant was in unlawful custody. Such detention could arise only for the purpose of his extradition. Counsel accepted that there was, at the time of the application, lawful provision to extradite a person to Germany under the European Arrest Warrant Act 2003. However the request was not made under that Act, and instead was an application under Part II of the Act 1965. The reason the application was made under the Extradition Act 1965 he submitted, was an assumption that the European Arrest Warrant Act 2003 did not apply to this request made for extradition, because it was made prior to the European Arrest Warrant Act 2003 coming into force on 1 ^st January 2004.

12 Counsel for Governor of Wheatfield Prison Mr. Robert Barron B.L. stated to O'Donovan J. that Part II of the Act of 1965 which applies to European Countries and the United States of America remained in force. For an extradition arrangement internationally to have domestic effect there must be an order made for, or concerning, the requesting country by way of statutory instrument. By S.I. 474/2000 in succession to S.I. 323/1976 such order was made in relation to Germany. The European Arrest Warrant Act 2003 which gave effect to the Council Framework decision of 13 June 2002 (O.J. No. L 190 of 18/7/2002, P.I.) specifically provided that arrangements as to prior requests would continue up to, and including 1 ^st January, 2004. The German request herein was made before the 1 ^st January, 2004 and O'Sullivan J. had actually adjourned the application to allow counsel for Mr. Abinbola time to consider this matter.

13 The transcript of the proceeding is headed 'Extradition' with a special summons number. The proceedings and affidavit on foot of which this Article 40 application was moved were brought under the guise of "Judicial Review" proceedings. Dr. Forde indicated to O'Donovan J. that he sought an order vacating the ex parteorder made by Hanna J. for the arrest of his client, and also judicial review by way of certiorarito quash the Minister's certificate on foot of which the extradition proceedings were to be heard under Part II of the Act of 1965. He submitted that, by virtue of Extradition Act 1965 (Application of Part II) (Amendment No. 2) Order S.I. 725/2004, the Act of 1965 was disapplied to Germany. No domestic transition...