Minister for Justice v O'Kane

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Patrick McGrath
• Judgment Date: 20 March 2025
• Neutral Citation: [2025] IEHC 167
• Docket Number: Record No 2024 EXT 108

Between

Minister for Justice

Applicant

and

Seamus Christopher O'Kane

Respondent

[2025] IEHC 167

Record No 2024 EXT 108

THE HIGH COURT

Trade and Co-Operation Agreement warrant – Surrender – Abuse of process – Applicant seeking an order for the surrender of the respondent on foot of a Trade and Co-Operation Agreement warrant – Whether it would be an abuse of process to order surrender

Facts: The applicant, the Minister for Justice, applied to the High Court seeking an order for the surrender of the respondent, Mr O’Kane, to Northern Ireland on foot of one Trade and Co-Operation Agreement warrant (TCAW). The warrant was issued on 26 April 2024 by District Judge Connorat, Laganside Magistrates Court, Belfast and sought the surrender of the respondent for prosecution in relation to a number of offences. The following objections were pursued by the respondent: (a) his surrender would be contrary to s. 37 of the European Arrest Warrant Act 2003; (b) he had been denied his right to an expeditious trial guaranteed by Article 38.1 of the Constitution and Article 5 of the ECHR; (c) his surrender was previously refused in respect of offences which were dependent upon the same evidence; and (d) the request should be refused as it amounted to an abuse of process, a collateral attack on a ruling already made by the Court, an abuse of the rule in Henderson v Henderson, and a breach of his right to equal treatment.

Held by McGrath J that, on the evidence adduced by the respondent, the disruption of his normal family life could not in the context of an application for surrender be seen as being so exceptional as to amount to a disproportionate breach of his family and personal rights such that it would be a breach of the Convention or Constitution to order his surrender. Applying the principle of good faith that underlies the operation of the Trade and Co-Operation Agreement and cognisant of the comments of the CJEU in Alchaster (Case C-202/24, Alchaster [2024]) as to the UK’s long standing membership of the ECHR and its compliance with the rulings of the ECtHR, McGrath J found that there was no basis upon which to suspect that the fair trial or other fundamental rights of the respondent would be violated if surrendered on foot of the TCAW. McGrath J held that this was a separate application for extradition for separate offences and not a situation where, as in the cases cited by the respondent, there was some criticism of a litigant for, as an example, not putting forward all of his arguments in relation to a dispute in one set of proceedings. McGrath J did not consider the respondent to have been the victim of some form of Henderson v Henderson type abuse on the facts of the case. McGrath J held that the principle identified by the Supreme Court in McMahon v Leahy [1984] I.R. 525 could not be availed of by the respondent as he was not in a position to point to differential treatment of any other person who committed or was sought for the same actual offences as those covered in the TCAW. McGrath J did not consider this to be a case where there were grounds for the court, looking at all the circumstances cumulatively, to conclude that this was one of those cases where the application for surrender could be said to be an abuse of the process of the court.

McGrath J made an order for the respondent’s surrender pursuant to s. 16 of the 2003 Act.

Application granted.

JUDGMENT of Mr. Justice Patrick McGrath delivered on the 20 March 2025

1 In this application, the applicant seeks an order for the surrender of the respondent to Northern Ireland on foot of one Trade and Co-Operation Agreement warrant ( ‘TCAW’).

2 This warrant was issued on the 26 April 2024 by District Judge George Connor at Laganside Magistrates Court, Belfast and seeks the surrender of the Respondent for prosecution in relation to the following offences:

• (i) Unlawful possession, on the 16 February 1976, at Brockaghboy, Garvagh of explosive substances (two electric detonators and two improvised pressure mat switches) with intent to endanger life or cause serious injury to property in the United Kingdom, contrary to Section 3(1)(b) of the Explosive Substances Act, 1883;

• (ii) On the same date and at the same location, unlawful possession of the said explosive substances, under such circumstances as to give rise to a reasonable suspicion that he did not have them in his possession or under his control for a lawful object, contrary to Section 4(1) of the Explosive Substances Act, 1883;

• (iii) On the same date and at the same location, he had in his possession firearms and ammunition, namely one Browning pistol, two Walther pistols, a Remington shotgun and a quantity of ammunition, with intent to endanger life or cause serious injury to property or to enable any other person by means thereof to endanger life or cause serious injury to property contrary to Section 14 of the Firearms Act (Northern Ireland) 1969;

• (iv) On the same date and at the same location, he had in his possession these firearms and ammunition under such circumstances as to give rise to a reasonable suspicion he did not have them in his possession for a lawful object, contrary to Section 19A of the Firearms Act (Northern Ireland) 1969;

3 Additional information having been received from the issuing judicial authority (‘the IJA’), this TCAW was endorsed by the High Court on the 29 May 2024. The Respondent was arrested on the 24 June 2024 and produced to the High Court on that date. He has been remanded in bail on this matter since that date, pending the outcome of these proceedings.

4 The warrant was issued by a ‘judicial authority’ in the issuing state within the meaning of s. 10 of the European Arrest Warrant Act, 2003 (as amended) [‘the 2003 Act’].

5 I am satisfied that the details set out in the Warrant satisfy the requirements of Section 11A of the 2003 Act.

6 I am satisfied that the person before the court, the respondent, is the person in respect of whom this TCAW was issued. No issue is taken in relation to identity.

7 The minimum gravity requirement under the 2003 Act is met.

8 I am satisfied that none of the matters referred to in sections 22, 23 and 24 of the 2003 Act, arise for consideration in this application and surrender of the respondent is not precluded for any of the reasons set forth therein.

CORRESPONDENCE

9 It is not in dispute that this is a case where it is necessary to establish correspondence in accordance with ss 5 and 38 of the 2003 Act

10 No issue is raised by the Respondent in relation to correspondence. The TCAW is a Warrant issued in accordance with Article LAW.SURR.112 of the Trade and Co-Operation Agreement. It is therefore necessary to demonstrate correspondence in accordance with s. 38 of the 2003 Act. Section 5 of the 2003 Act provides:-

‘For the purposes of this Act, an offence specified in a European Arrest Warrant corresponds to an offence under the law of the state, where the act or omission that constitutes the offence so specified would, if committed in the State on the date on which the European arrest warrant is issued, constitute an offence under the law of the State’.

11 The relevant principles for showing correspondence are now well established. In assessing correspondence, the question is whether the acts or omissions that constitute the offence in the requesting state would, if carried out in this jurisdiction, amount to a criminal offence – Minister for Justice v Dolny [2009] IESC 48

12 I am satisfied that the acts or omissions that constitute the offences for which surrender is sought correspond to the following offences under Irish Law:-

• a. Possession of Firearms/Ammunition with Intent contrary to Section 27B of the Firearms Act, 1964 (as amended);

• b. Possession of Firearms with Intent to endanger life or cause serious injury to property contrary to Section 15 of the Firearms Act 1925 (as amended);

• c. Suspicious Possession of Firearms/Ammunition contrary to S27A of the Firearms Act 1964 (as amended);

• d. Possession of Explosive Substances in suspicious circumstances contrary to Section 4(1) of the Explosives Act 1883

GROUNDS OF OBJECTION

13 The Respondent delivered Points of Objection on the 17 June 2024. At the hearing the following objections were pursued:-

• a. The surrender of the Respondent would be contrary to s. 37 of the 2003 Act as it would be incompatible with his rights under Article 41 and 40.3.1 of the Constitution and Article 8 of the European Convention on Human Rights in the circumstances of this case, where these offences are alleged to have occurred 48 years ago amplified by the fact that there was a previous unsuccessful extradition request in relation to related matters some 46 years ago;

• b. His surrender is prohibited as there has been a complete failure to guard his due process rights arising from culpable and blameworthy prosecutorial delay where the offences allegedly occurred in 1976, and a decision was made to prosecute in 1978. The Respondent has been denied his right to an expeditious trial guaranteed by Article 38.1 of the Constitution and Article 5 of the ECHR;

• c. The surrender of the Respondent was previously refused in respect of offences which were dependent upon the same evidence as the offences for which surrender is now sought.

• d. This request should be refused as it amounts to:-

  • a. An abuse of process

  • b. A collateral attack on a ruling already made by this Court;

  • c. An abuse of the rule in Henderson v Henderson;

  • d. A breach of the Respondents right to equal treatment.

ADDITIONAL INFORMATION

14 A request was issued pursuant to s. 20 of the 2003 Act on the 20 June 2024, seeking the following Additional Information:-

‘1. Please provide full details of any knowledge the UK authorities had on the whereabouts of the requested person at any time between the date of his escape from custody on 5 May 1976...