Bolger v Judge Gerard Haughton and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Michael Peart
• Judgment Date: 28 October 2005
• Neutral Citation: [2005] IEHC 364
• Docket Number: Record Number: No. 888 JR/2004
• Date: 28 October 2005

[2005] IEHC 364

THE HIGH COURT

Record Number: No. 888 JR/2004

Record Number: No. 232 Sp/2004

BOLGER v HAUGHTON & ORS

Between:

Peter Bolger

Applicant

And

Judge Gerard Haughton, Ireland and The Attorney General

Respondents

Between:

Peter Bolger

Plaintiff

And

Patrick O'Toole

Defendant

EXTRADITION ACT 1965 S47

EXTRADITION ACT 1965 S50(2)(bbb)

LAWLOR v HOGAN 1993 ILRM 606

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

R v JONES PLANTER & PENGELLY 1991 CRIM LR 856

R v DONNELLY & DONNELLY UNREP COURT OF APPEAL (CRIMINAL DIVISION) 12.6.1997 (UK)

R v GUNEY 1996 2 CR APP R 352

EXTRADITION ACT 1965 S55(1)

EXTRADITION ACT 1965 S42

EXTRADITION (EUROPEAN UNION CONVENTIONS) ACT 2001 S26

EUROPEAN ARREST WARRANT ACT 2003 S43(1)(b)

CARNE v O'TOOLE (ASSISTANT GARDA COMMISSIONER) UNREP SUPREME 21.4.2005

WAN v CONROY 1998 3 IR 527

B (M) v CONROY (ASSISTANT COMMISSIONER) 2001 2 ILRM 311

FLYNN v GOVERNOR OF MOUNTJOY PRISON UNREP HIGH COURT BARRON 6.5.1987 1987/2/653

CRIMINAL LAW

Extradition

Delay - Lapse of time - Prejudice - Exceptional circumstances - Defendant convicted and sentenced in his absence - Medical evidence - Whether dilatoriness explained by requesting authorities - Whether circumstances exceptional - Whether unjust, oppressive or invidious to deliver up - Whether unfair trial where applicant convicted in absentia - Whether date extradition warrant was produced was necessary - Whether limitation of cross-examination of police witness as to application of warrant justified - Extradition Act 1965 (No 17) s 50(2)(bbb) - Extradition (Amendment) Act 1987 (No 25 ) s 2 - Extradition (European Union Conventions) Act 2001 (No 49)s 26 - Extradition refused (2004/888JR & 232Sp - Peart J - 28/10/2005) [2005] IEHC 364 - Bolger v Judge Haughton

Judgment of

Mr Justice Michael Peart

1 The judicial review proceedings herein seek to quash an order of the first named respondent dated 15th June 2004 by which he ordered the delivery of the applicant into the custody of a member of the London Metropolitan Police pursuant to s. 47 of the Extradition Act,1965, as amended, so that the respondent could serve a three year prison imposed on him in his absence at Southwark Crown Court on the 2nd June 1995.

2 Also before the Court are proceedings commenced by way of Special Summons in

3 which an order is sought under s.50 (2)(bbb) of the Extradition Act,1965 as amended ("the Act"), for the release of the plaintiff principally on the grounds of lapse of time, but a point has also been addressed regarding correspondence in relation to one of the offences, namely forgery.

4 Given that the offences in respect of which the plaintiff was convicted in April 1995 were committed in December 1991, there is no doubt that there has been a significant lapse of time as a matter of simple fact. There is a substantial background history to the present applications, the detail of which is spread over seven lever arch files of documents, with legal submissions and accompanying authorities running to another lever arch file, as well as a bundle of other loose documents referred in submissions to the Court.

5 I will set out a chronology of different events in the history of the proceedings against the applicant/plaintiff, leading eventually to the granting in the District Court of the order impugned in the judicial review proceedings. Then I will address the submissions in the judicial review proceedings and thereafter deal with the application under s. 50 (2)(bbb) of the Act.

6 Offences committed - stealing cheques and money, carrying on business with intent to defraud, and forgery - the earliest of such offences being said to have been committed between 1st January 1991 and 16th July 1991.

Arrest of the plaintiff - 15th July 1992

Plaintiff charged with offences - 20th April 1994

Commencement of Trial - 13th March 1995

7 Applicant, on medical grounds, fails to return to his trial, after coming to Ireland for a weekend - 3rd April 1995

8 Conviction (in absentia) by a jury - 6th and 7th April 1995, the applicant having failed to appear at his trial after the 3rd April 1995 due to alleged medical reasons

Sentence passed (again in absentia) - 2nd June 1995

Extradition warrants obtained - 27th December 1995

Warrants endorsed for execution - 15th February 1996

Arrest of plaintiff - April/May (????) 1996

9 Before District Judge Windle - 23rd May 1996 and 23rd July 1996

Extradition refused by Judge Windle - 10th October 1996

New extradition warrants issued - 25th June 1998

Warrants endorsed for execution - 19th October 1998

Plaintiff arrested - 20th October 1998

Habeas Corpus application refused - 21st October 1998

Appeal to Supreme Court dismissed - 2nd November 1998

10 1st Judicial Review application - limited leave granted - 2nd November 1998

11 Notice of Appeal filed against granting of limited leave - 26th March 1999

Appeal to Supreme Court dismissed - 8th July 1999

Judicial Review application heard by O'Neill J.- 15th December 1999

Judgment delivered by O'Neill J. - 8th June 2000

Order perfected - 30th November 2000

12 Notice of Appeal filed in Supreme Court - 11th December 2000

Books of Appeal lodged - "early to mid 2002"

13 Dismissal of Appeal by Supreme Court - 2nd December 2002.

14 Re-listing of application for extradition in District Court - 9th April 2003

15 Dates of hearing in District Court - 26th and 27th November 2003

16 District Judge rules that case for order is made out and adjourns - 3rd December 2003

17 Decision and Order of the District Judge under s. 47 of the Act - 15th June 2004.

18 The reliefs sought in the judicial review proceedings herein arise out of the hearing and decision in the District Court application which on the 26th November 2003. The learned District Judge delivered a written judgment on the 15th June 2004. The applicant seeks an order of certiorari quashing the order of the learned District Judge by which, pursuant to s.47 of the Act, he ordered the rendition of the applicant to the UK authorities so that he could there serve out the sentence of three years imposed in absentia on 2nd June 1998.

19 It is important to state the obvious at the outset, namely that the judicial review proceedings cannot be seen as or treated as being an appeal against the decision of the learned District Judge. It is in no sense a re-hearing of that application, even though the Court has been referred to extensive passages from the transcript of the hearings in the District Court. This Court is concerned only with the process by which the learned District Judge conducted the hearing and reached his conclusions on the evidence placed before him.

20 A number of grounds are put forward by the applicant as to why the said order should be quashed. I will summarise these grounds as follows:

21 1. The rendition of the applicant would be a breach of his constitutional rights and/or his rights under the European Convention on Human Rights 2003, by reason of the fact that the applicant was medically unfit to attend at his trial on or after the 3rd April 2003 and the sentence hearing;

22 This ground depends on the facts which I will be setting out in some detail in relation to the application under s. 50 (2) (bbb) of the 1965 Act as amended. I will not rehearse those facts at this point, since I prefer to deal with the medical ground, so to speak, under the latter application, rather than in these judicial review proceedings. But it has been raised as a ground for quashing the order of the learned District Judge and I will deal with that ground now. The District Judge heard evidence as to the nature of the applicant's illness and the fact that the applicant while in Ireland during the weekend preceding the 3rd April 1995 became so ill that he saw a medical doctor, a Dr Collis and attended hospital thereafter. He also heard evidence that the English Court was appraised of the situation and was shown a copy of a note from Dr Collis. The applicant was still represented by solicitor and Counsel at this point. The learned District Judge heard evidence also that by this point in the trial all evidence had been led by the prosecution as well as the Defence, and both the prosecution and Defence cases had closed. The judge came to a decision that the remainder of the trial could continue in the absence of the applicant, and the jury was informed that the reason for the non-appearance of the applicant was that he was ill. On the 6th April 1995 the jury returned a verdict of guilty. Sentencing was adjourned on a number of occasions so that the medical condition of the applicant could be clarified. Eventually the applicant was sentenced in his absence on the 2nd June 1995. The applicant continued to be represented by solicitor and Counsel up to the point of sentence being passed.

23 The applicant submits that since his non attendance was necessitated by his illness the trial ought to have been halted on the 3rd April 1995 until he was well enough again to attend court. The respondent submits that since the Defence had closed its case, and since the applicant continued to be represented by solicitor and counsel, there was no unfairness in the trial continuing in his absence, in the sense that the jury was permitted to consider and reach its verdict in his absence. It is also submitted by the applicant that even if it is found to be fair that the trial was concluded so that the jury could reach its verdict in the absence of the applicant, the trial judge ought not to have passed sentence until such time as the applicant was present in court for his sentence hearing.

24 In my view, there is no doubt but that if the applicant had become ill necessitating his absence from court during the trial itself, and by that I mean before evidence had been concluded, the applicant...