Bolger v O'Toole
| Jurisdiction | Ireland |
| Judge | Mr. Justice O'Neill |
| Judgment Date | 08 June 2000 |
| Neutral Citation | [2000] IEHC 125 |
| Court | High Court |
| Date | 08 June 2000 |
[2000] IEHC 125
THE HIGH COURT
BETWEEN
AND
Citations:
EXTRADITION ACT 1965 PART III
MCMAHON V LEAHY 1984 IR 525
EXTRADITION ACT 1965 S47(3)
EXTRADITION ACT 1965 S47
HEGARTY V GOV OF LIMERICK PRISON 1998 1 IR 412
DUNCAN V GOV OF PORTLAOISE (NO 2) 1998 1 IR 433
CULLY V GOV OF PORTLAOISE PRISON 1998 1 IR 443
QUINLIVAN V GOV OF PORTLAOISE PRISON 1998 1 IR 456
EXTRADITION ACT 1965 S45(2)
Synopsis:
Extradition
Extradition; judicial review; res judicata; applicant had been tried and convicted in his absence in England of various offences; applicant arrested on certain extradition warrants obtained in Bow Street Magistrates Court; previous attempt to extradite applicant on foot of other extradition warrants had failed on grounds that warrants were defective; District Judge before whom dispute in respect of the defective warrants had been litigated made an order under s.47(3), Extradition Act, 1965, discharging the applicant; errors in previous warrants addressed in present warrants; new warrants indorsed by first-named respondent and stated that, during course of his trial in London on certain charges, the respondent failed to surrender as required to the custody of the court; applicant granted leave to apply for judicial review on ground of res judicata; whether the issues which were sought to be tried and determined before the District Court in the intended extradition proceedings on foot of the present warrants were the same issues which were heard and determined by the District Judge in respect of the previous warrants; whether the indorsing by the first-named respondent of the warrants obtained from the Magistrates Court and the subsequent arrest of the applicant on foot thereof was permissible; whether the applicant's submission to the effect that there was an estoppel which prevented the re-initiation of failed extradition proceedings was correct; whether in view of the fact that it was not yet apparent what issues would arise in the District Court proceedings pursuant to s.45(2) it was premature to say whether any issue estoppel would arise.
Held: Applicant's claim dismissed.
Bolger v. O'Toole - High Court: O'Neill J. - 08/06/2000
The applicant had been arrested on foot of extradition warrants. The applicant brought judicial review proceedings claiming that the extradition proceedings were unlawful. The applicant claimed that the attempts to extradite him had already been determined and had been dismissed. On behalf of the respondents it was contended that previous extradition proceedings had failed due to defects in the warrants. In addition it was denied that the matter was res judicata. O'Neill J held that there could be a lawful arrest following upon an unlawful one. The defects originally complained had been remedied and therefore it could not be said that the doctrine of res judicata applied. The relief sought by the applicant would be refused.
Judgment of Mr. Justice O'Neilldelivered the 8th day of June, 2000.
These Judicial Review proceedings arise out of the arrest of the Applicant in the early hours of Tuesday, 20th October, 1998 on fourteen extradition warrants obtained on the 25th June, 1998 in Bow Street Magistrates Court, London by Detective Constable Malcolm Jennings. These warrants were endorsed by the First named Respondent, an Assistant Commissioner of the Garda Siochana on the 19th October, 1998. The warrants state that on the 3rd April, 1995 during the course of the trial of the Applicant on certain charges at Southwark Crown Court, London, the Applicant failed to surrender as required to the custody of the said Court. On the 6th and 7th April, 1995 the Applicant was convicted in his absence at Southwark Crown Court of fourteen offences, namely, ten offences of theft,three offences of forgery and one offence of fraudulent trading. In respect of the ten offences of theft and the offence of fraudulent trading the Applicant was sentenced in his absence by the Court to a term of imprisonment for two years upon each, to run concurrently with each other. In respect of the three offences of forgery the Applicant was sentenced in his absence to a term of imprisonment of twelve months upon each to run concurrently with each other, but to run consecutively to the aforementioned concurrent terms of two years imprisonment.
This is the second attempt to extradite the Applicant on foot of extradition warrants.
The events surrounding the first attempt are as follows:-
On the 21st December, 1995 Detective Constable Jennings obtained arrest warrants from Bow Street's Magistrates Court with a view to securing the Applicant's extradition to England. The warrants were endorsed by an Assistant Commissioner of the Garda Siochana on the 15th February, 1996 and the Applicant was arrested under them and brought before the Dublin Metropolitan District Court with a view to his extradition being ordered under Part 3 of the Extradition Act, 1965.
The attempt to extradite the Applicant on foot of the warrants obtained by Detective Constable Jennings on the 25th June, 1998 has provoked much litigation on the part of the Applicant. The present matters come before the Court as results of the Order of O'Higgins J dated 2nd November, 1998 whereby he granted leave to the Applicant to apply for Judicial Review on one ground, that of res judicata and refused it on another ground, namely, that the attempted extradition was unlawful and/or an abuse of process being the result of a conspiracy of officers of the Second named Respondent (Criminal Assets Bureau) and Detective Constable Jennings, inter alia, to frustrate and impede his ability to defend himself in certain proceedings between the Applicant and the Criminal Assets Bureau.
The operative part of the Order of O'Higgins J. granting leave to apply for Judicial Review was in the following terms:-
" 1.That the Applicant have leave to apply by way of application for Judicial Review for an Order of Prohibition against District Justice Brian Kirby or any other Judge of the Dublin Metropolitan District Court and the District Court forbidding them to take any further steps in the extradition proceedings initiated by D.C. Jennings on foot of warrants obtained on the 25th June, 1998 in Bow Street Magistrates Court on the grounds that the attempted extradition of the Applicant on foot of the said warrants which were indorsed by the First named Respondent on the 19th October, 1998 were unlawful being an attempt at retrial of the previous extraditionapplication."
Following upon the making of the said Order on 2nd November, 1998 the Applicant appealed against that part of the Judgment and Order of O'Higgins J which refused leave to the Applicant to apply for Judicial Review on the aforesaid ground of engaging in a conspiracy constituting an abuse of the process of the Court. On the 8th July, 1999 Barrington J in an ex tempore judgment with which the other members of the Supreme Court agreed, dismissed the appeal and affirmed the Order of O'HigginsJ.
Following upon same, the Applicant served a Notice of Motion seeking the relief in respect of which O'Higgins J gave leave, but curiously the Notice of Motion, notwithstanding that a variety of ancillary reliefs are sought in it, does not expressly or in any specific way set out the main relief in respect of which leave was obtained. I do not propose to attach any significance to this procedural deficiency.
Paragraphs 1, 6, 8 and 9 of the Applicant's Statement of Grounds appear to bear directly and peripherally on the matter in respect of which leave was granted.
These read as follows:-
2 " 1. In 1996, extradition proceedings initiated on behalf of the Third named Respondent acting through Detective Constable Jennings against the Applicant were dismissed in the Dublin Metropolitan District Court following a lengthy hearing. The garda authorities were ordered by the District Court dismissing the application to pay to the Applicant, Peter Bolger, £3,500 towards his costs of the extradition hearing. That decision was never appealed by the garda authorities despite the terms of the said Order have failed, neglect and refused to make the said payments of £3,500 and are currently in breach of the terms and conditions of the said Order."
3 " 6. The application by Detective Constable Jennings for the issue of the warrants from Bow Street Magistrates Courts upon which the present extradition application is found and was and is an abuse of the process of that Court in that inter alia the Magistrate to whom the application was made was misled by having concealed from him the fact that the previous extradition...
To continue reading
Request your trial