Bolger -v- O'Toole & Bolger -v- Judge Haughton, [2008] IESC 38 (2008)

Docket Number:461/05 & 47/06
Party Name:Bolger, O'Toole & Bolger -v- Judge Haughton
Judge:Fennelly J.
 
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THE SUPREME COURTIN THE MATTER OF THE EXTRADITION ACT 1965 AS AMENDEDSupreme Court Record No. 461/05Denham J.

Hardiman J.

Fennelly J.

BETWEENPETER BOLGERPlaintiff/RespondentAND

PATRICK O'TOOLEDefendant/Appellant

JUDICIAL REVIEW

Supreme Court Record No. 47/06BETWEENPETER BOLGERApplicant/AppellantAND

JUDGE GERARD HAUGHTON

IRELAND AND

THE ATTORNEY GENERALRespondents

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

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

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

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

    The procedure to date

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

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

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

    · Lapse of time pursuant to section 50(2)(bbb) of the Act of 1965, inserted by section 2(1)(b) of the Extradition (Amendment) Act, 1987 (hereinafter "paragraph (bbb)";· Absence of correspondence between certain of the offences of which Mr Bolger had been convicted (forgery) and any offence under the law of the State, as required by section 50(2)(c) of the Act of 1965.7. Secondly, Mr Bolger obtained leave to apply for judicial review of the decision of Judge Haughton in the District Court, principally on the ground that his extradition would constitute a breach of his fundamental and constitutional rights.

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

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

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

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

    Chronological history

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

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

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

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

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

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

    (i) 10 offences of Theft contrary to Section 1(1) of the Theft Act, 1968;(ii) 3 offences of Making a False Document With Intent contrary to Section 1 of the Forgery and Counterfeiting Act, 1981; and(iii) 1 offence of knowingly carrying on the business of a limited company for a fraudulent purpose contrary to Section 458 of the Companies Act, 1985.

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

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

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

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

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

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

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

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

  25. His substantive application for Judicial Review was dismissed by the High Court on 8th June 2000. He appealed to the...

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