Bolger v O'Toole

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 02 December 2002
• Neutral Citation: 2002 WJSC-SC 725
• Court: Supreme Court
• Docket Number: Record No. 322/00
• Date: 02 December 2002

2002 WJSC-SC 725

THE SUPREME COURT

Denham J.

McGuinness J.

McCracken J.

Record No. 322/00

BOLGER v. O'TOOLE & ORS

BETWEEN/

PETER BOLGER

Applicant/Appellant

and

PETER O'TOOLE, CRIMINAL ASSETS BUREAU, LONDON METROPOLITAN POLICE COMMISSIONER, DISTRICT JUDGE BRIAN KIRBY, THE DISTRICT COURT and PATRICK BYRNE

Respondents

Citations:

EXTRADITION ACT 1965 PART III

MCMAHON V LEAHY 1984 IR 525

EXTRADITION ACT 1965 S47(3)

PRISON ACT 1952

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)

EXTRADITION ACT 1965 S47(1)

EXTRADITION ACT 1965 S43

EXTRADITION ACT 1965 S44

EXTRADITION ACT 1965 S45

EXTRADITION ACT 1965 S50(bbb)

HENDERSON V HENDERSON 1874 3 HARE 100

JOHNSON V GORE WOOD & CO 2002 2 AC 1

CONSTITUTION ART 40

Synopsis:

CRIMINAL LAW

Extradition

Judicial review - Prohibition - Whether extradition proceedings unlawful having regard to previous failed attempt to extradite - Extradition Act, 1965 (322/2000 - Supreme Court - 2/12/02)

Bolger v O'Toole

Facts: In 1995 Detective Constable Jennings obtained arrest warrants with a view to securing the applicant's rendition to England. The District Court discharged the applicant because of errors in the warrants. In 1998 fresh sets of warrants were produced. The High Court granted leave to the applicant to apply for judicial review for an order of prohibition against the District Court forbidding it from taking any further steps in extradition proceedings initiated by the English police on grounds that the attempted extradition was unlawful being an attempt at retrial of previous extradition proceedings. The High Court dismissed the applicant's claim and he appealed.

Held by the Supreme Court in affirming the order of the High Court and dismissing the appeal that the fact that the applicant had been discharged on foot of a set of warrants did not exclude the production and endorsement of a second set of warrants. The warrants which were before the District Court were different from the first warrants and it was for the District Court to

1 Ex tempore judgment delivered on 2nd December, 2002 by Denham J.

1. Appeal

2 This is an appeal by Peter Bolger, the applicant/appellant, hereinafter referred to as the applicant, from the judgment and order of the High Court (O'Neill J.) delivered on the 8 ^th day of June, 2000, which dismissed his claim.

2. Time

3 Extradition and rendition cases should be dealt with expeditiously by the parties and the courts. Consequently, I am giving an ex tempore judgment in this matter.

3. Facts

4 The facts of the case were stated clearly by the learned trial judge. The applicant brought judicial review proceedings arising out of his arrest on the 20 ^th October, 1998 on fourteen extradition warrants obtained on the 25 ^th June, 1998 in Bow Street Magistrates Court, London. The warrants were endorsed by the first named respondent, an Assistant Commissioner of the Garda Síochána, on the 19 ^th October, 1998. These warrants state that on the 3 ^rd April, 1995 during the course of the trial of the applicant on certain charges at Southwark Court, London, the applicant failed to surrender as required to the custody of that court. On the 6 ^th and 7 ^th April, 1995 the applicant was convicted in his absence at Southwark Crown Court of the 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 to a term of imprisonment of two years on each to run concurrently. In respect of the three offences of forgery the applicant was sentenced in his absence to a term of imprisonment of twelve months to run concurrently with each other, but to run consecutively to the sentences of two years.

4. Second Set of Warrants

5 These proceedings were brought because this is the second set of warrants seeking the rendition of the applicant to England.

5. First Set of Warrants

6 On the 21 ^th December, 1995 Detective Constable Jennings obtained arrest warrants from Bow Street's Magistrates Court with a view to securing the applicant's rendition to England. The Warrants were endorsed by an Assistant Commissioner of the Garda Síochána on the 15 ^th February, 1996. The applicant was arrested under the warrants and brought before Dublin Metropolitan District Court with a view to his rendition being ordered under Part 3 of the Extradition Act, 1965. In his affidavit of the 5 ^th March, 1999, Liam Mulholland, solicitor of the Office of the Chief State Solicitor, deposed what happened:

7 2 "5. I was the Solicitor acting on behalf of the Garda Siochana and the Attorney General in the Application which came before Judge Windle. Its first hearing date was on the 23 ^rd May 1996 when two issues were brought up by Counsel on behalf of Mr. Bolger. These were: firstly that the warrants were invalid in that they did not specify the location of the offence; and secondly that the recitals in the warrants said that Peter Bolger was "an offender unlawfully at large from Her Majesty's Prison, Brixton" whereas the evidence from the police constable from England was that Mr. Bolger had absconded whilst on bail. In light of these two submissions, Judge Windle stated that he required expert evidence on English law and he granted an adjournment for that purpose.

8 6. On the 23 ^rd of July 1996 evidence was called in relation to the two matters arising out of the warrants raised on the previous occasion. This evidence was that under English law it was not necessary to state the location in which an offence had taken place on the warrant. The witness was unable to give admissible evidence as to how Mr. Bolger, who had never physically been in Brixton prison, could be said to be unlawfully at large from the prison.

9 7. A further adjournment was allowed in order that the possibility of calling additional evidence could be considered. When the matter came on for hearing on the 10 ^th of October 1996, no further evidence was adduced. Judge Windle then made an Order discharging Mr. Bolger on the grounds that he was not satisfied as to the two matters which had been raised previously."

6. High Court Leave

10 On the 2 ^nd day of November, 1998 the High Court (O'Higgins J.) granted leave to apply by way of application for judicial review for an order of prohibition against District Justice Kirby 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 25 ^th June, 1998 in Bow Street Magistrates Court on the grounds that the attempted extradition of the applicant on foot of the said warrants obtained on the 25 ^thday of June, 1998 in the Magistrates Court, Bow Street, London, England by Detective Constable Andrew Jennings which warrants were endorsed by the first named respondent on the 19 ^th October, 1998 were unlawful being an attempt at retrial of a previous extradition proceedings.

7. High Court Judgment

11 On the judicial review proceedings the High Court (O'Neill J.) held on the 8 ^th June, 2000 as follows:

"It would appear to me that the dispute which arose and was litigated in the District Court concerned the lawfulness of the arrest of the Applicant and was based on the assertion by the Applicant that the warrants on foot of which he was arrested were defective in two respects and as a consequence his arrest was unlawful and hence in the words of McCarthy J. in McMahon v Leahy, (1984) IR 525 at 547 "essentially the extradition application was never properly launched".

It is common case that arising from this, Judge Windle made an Order under Section 47, subsection (3) discharging the Applicant.

I further accept that the two matters which were litigated before Judge Windle were as is deposed to at paragraph 5 of the Affidavit of Mr. Mulholland, namely, that the warrants did not specify the location of the offence and that the recitals in all of the warrants said that Peter Bolger was "an offender unlawfully at large from Her Majesty's Prison, Brixton" and that this was contradicted by the evidence from the police constable from England to the effect that Mr Bolger had absconded whilst on bail in the course of his trial, a fact which has never been in dispute.

Thus, Judge Windle being satisfied as he must have been, that the warrants as is clear from them did not specify the location of the offence and as it was equally clear that the evidence of the police constable contradicted another material content of the warrant, he was necessarily driven to the conclusion that the warrants were bad and hence the arrest unlawful and consequently that the Applicant must be discharged.

As is apparent from the new warrants, that is to say the warrants obtained from Bow Street Magistrates Court on the 25 ^th June, 1998, both of these two issues are addressed in that in respect of the location of the offence the words "within the jurisdiction of the said Crown Court" are added to each of the warrants thereby establishing the location of the offence, and the following is substituted in the new warrants for paragraph 6 of the old warrants "the said Peter Edward Bolger also known as Peter Bolger having been convicted of and sentenced for the said offence is required to be detained in a prison to which the Prison Act, 1952 applies and therefore is an offender unlawfully at large from such prison" thereby correcting the contradiction between the undoubted facts and the contents of paragraph 6 of the warrants which were the subject matter of the hearings in the District Court in 1996.

Thus the issue for determination in this hearing is...