MINISTER for JUSTICE v TOBIN [High Court, Supreme Court]

• Jurisdiction: Ireland
• Judge: Murray J.,O'Donnell, J.,Mr. Justice Fennelly,Mr. Justice Hardiman,Denham C.J.
• Judgment Date: 19 June 2012
• Neutral Citation: [2012] IESC 37
• Date: 19 June 2012
• Docket Number: [2009 No. 259 EXT]
• Court: Supreme Court

Min for Justice v Tobin

Between/

Minister for Justice, Equality and Law Reform

Applicant/Respondent

and

Ciarán Tobin

Respondent/Appellant

[2012] IESC 37

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

O'Donnell J.

[Record No: 98/2011

THE SUPREME COURT

EXTRADITION LAW

European arrest warrant

Surrender - Second surrender application - Abuse of process - Separation of powers - Fair procedures - Family rights - Right to finality in litigation - Amending legislation - Delay - Vested rights - Previous surrender application refused on grounds that respondent had not "fled" - "Fled" requirement removed by amending legislation - Amending legislation not published at time of issue of warrant - Whether abuse of process - Whether infringement of right acquired from previous court decisions - Whether presumption that right not to be infringed rebutted by intention of Oireachtas evident from legislation - Whether contrary interpretation required to conform with European Union legislation - Whether surrender can be ordered for offences committed prior to accession to European Union - Whether sentence properly set forth in warrant - Whether application should be refused on grounds of delay - Whether correspondence with offence in State - European law - Interpretation - Framework decision - Conforming interpretation - European arrest warrant - Whether amendment applicable to persons who successfully challenged surrender application on grounds of requirement now removed - Whether contrary interpretation required to conform with European Union legislation - AA v Medical Council [2003] 4 IR 302; A v Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88; Portland v Commission (Cases C-204, 205, 211, 213,217 & 219/00P [2004] ECR I-123; Abbott v Minister for Lands [1895] AC 425; Andersson and Wakeras-Andersson v Sweden (Case C-321/97) [1999] ECR I-3551; Attorney General v Gibson [2004] IESC 340, (Unrep, SC, 10/6/2004); Bolger v O'Toole (Unrep, SC, 2/12/2002); Buckley and Others (Sinn Féin) v Attorney General [1950] IR 67; CC v Ireland [2005] IESC 48, [2006] 4 IR 1; Chaos v Kingdom of Spain [2010] NIQB 68, [2010] NI 264; Chief Adjudication Officer v Maguire [1999] 1 WLR 1778; Commissions v Poland (Case C-642/05) [2008] ECR I-4183; Costello v Director of Public Prosecutions [1984] IR 436; Crilly v T & J Farrington Ltd [2001] 3 IR 251; Criminal proceeding against Gasparini (Case C-467/04) [2006] ECR I-9199; Criminal Proceedings against Santesteban Goicoechea (Case C-296/08 PPU) [2008] ECR I-6307; Criminal Proceedings against Maria Pupino (Case C-105/03) [2005] ECR I-5285; Curtin v Dáil Éireann [2006] IESC 14, [2006] 2 IR 556; Dorene Ltd v Suedes (Ireland) Ltd [1981] IR 312; Gairy v A-G of Grenada [2002] 1 AC 167; [2001] 3 W.L.R. 779; Green v United States (1957) 355 US 184; Hamburg Public Proasecutor's Office, Germany v Altun [2011] EWHC 397 (Admin), [2011] All ER (D) 25 (Mar); Henderson v.Henderson (1843) 3 Hare 100; Hosie v Kildare Co Council [1928] IR 47; Howard v Commissioners for Public Works [1994] 1 IR 101; Howard v Commissioners for Public Works (No 3) [1994] 3 IR 394; [1993] I.L.R.M. 665; IB (Case C-306/09) [2010] ECR I-10341; In re Greendale Developments Ltd. (No 3) [2000] 2 IR 514; Johnson v Gore Wood & Co [2002] 2 AC 1; J Wood & Company Ltd v Wicklow County Council [1995] 2 ILRM 51; Kay v Goodwin (1830) 6 Bing 576; Kepter v Hauptzollaut Hamburg (Case C-2/06) [2008] ECR I-411; Kozlowski (Case C-66/08) [2008] ECR I-6041; LM v His Honour Judge Liam Devally [1997] 2 ILRM 369; McGlinchey v Wren [1982] IR 154; McKone Estates Ltd v. Dublin County Council [1995] 2 ILRM 283; McMahon v Leahy [1984] 1 IR 525; Minister for Justice v Aamond [2006] IEHC 382, (Unrep, Peart J, 24/11/2006); Minister for Justice v Adach [2010] IESC 33, [2010] 3 IR402; Minister for Justice v Altaravicius [2006] IESC 23, [2006] 3 IR 148; [2006] 2 I.L.R.M. 241; Minister for Justice . Altaravicius (No 2) [2006] IEHC 270, [2007] 2 IR 265; Minister for Justice v Bailey [2012] IESC 16, (Unrep, SC, 1/3/2012); Minister for Justice v Brennan [2007] IESC 21, [2007] 3 IR 732; Minister for Justice v Doran [2010] IEHC 1 (Unrep, Peart J, 5/11/2010); Minster for Justice v Gheorghe [2009] IESC 76, (Unrep, SC, 18/11/2009); Minister for Justice v Gorman [2010] IEHC 10, [2010] 3 IR 583; Minister for Justice v McG [2007] IEHC 47, (Unrep, Peart J, 30/1/2007); Minister for Justice v. McGrath [2005] IEHC 116, [2006] 1 IR 321; Minister for Justice v Ó Fallúin [2010] IESC 37; Minister for Justice v Stapleton [2007] IESC 30, [2008] 1 IR 669; Minister for Justice v Sulej and Puta [2007] IEHC 132, (Unrep, Peart J, 24/4/2007); Minister for Justice v Tobin [2007] IEHC 15 & [2008] IESC 3, [2008] 4 IR 42; Nolan and K v Russia (App No 2512/04) (Unrep, ECHR, 12/2/2009); Office of the Prosecutor General of Turin v Barone [2010] EWHC 3004 (Admin) (Unrep, High Court of England and Wales, 19/11/2010); O'Keeffe v O'Toole [2005] IEHC 246 & [2007] IESC 13, [2008] 1 IR 227; Pardo v Bingham (1865) LR 4 Ch App 735; Pine Valley Developments Ltd v Ireland (App No A/ 222) (1992) 14 EHRR 319; Pine Valley Developments v Minister for the Environment [1987] IR 23; Re Vantive Holdings [2009] IESC 69, [2010] 2 IR 118; Reg (Kashamu) v Governor of Brixton Prison [2002] QB 887; SGL Carbon v Commission (Case C-309/04) [2006] ECR I-5977; Simple Imports Ltd v Revenue Commissioners [2000] 2 IR 243; Sloan v Culligan [1992] 1 IR 223; Szombathely City Court v Fenyvesi [2009] EWHC 231, [2009] 4 All ER 324; The State (O'Callaghan) v O hUadhaigh [1977] IR 42; The State (Quinn) v Ryan [1965] IR 70; The State (Trimbole) v The Governor of Mountjoy Prison [1985] IR 550; Toshiba Corporation v Úrad Pro ochrann hospodárské souteze (Case C-17/10) [2012] ECR NYP; Wenting v High Court of Valenciennes, France [2009] EWHC 3528 (Admin), [2010] All ER (D) 302 (Feb); Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816; Wolzenburg (Case C-123/08) [2009] ECR I-9621; Woodhouse v Consignia plc [2002] 1 WLR 2558 and Ynos kft v János Varga (Case C-302/04) [2006] ECR I-371 considered - European Arrest Warrant Act 2003 (No 45), ss 2, 5, 10, 11 and 37 - Interpretation Act 2005 (No 23), ss 2, 4 and 27 - Transfer of Execution of Sentences Act 2005 (No 28), s 7 - Council Framework Decision of 13th June, 2002, on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA), arts 1, 2, 3, 4, 5, 26 and 32 - European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, arts 5, 6 and 8 - Constitution of Ireland 1937, Articles 6, 25, 34, 37, 40, 41, 42 - Surrender ordered by High Court; appeal allowed by Supreme Court and surrender refused (2009/259EXT - Peart J - 11/2/2011 and 98/2011 - SC - 19/6/2012) [2011] IEHC 72 and [2012] IESC 37

Minister for Justice, Equality and Law Reform v Tobin

Facts The appellant had been involved in an accident in Hungary when his car struck and killed two young children. The appellant did not return to Hungary for his trial which was held in his absence. The appellant was convicted and sentenced to three years imprisonment. At the time of both the accident and the trial, Hungary was not a member of the European Union. Thereafter Hungary joined the European Union and became a designated country under the European Arrest Warrant Act, 2003 and sought the surrender of the appellant. The High Court held that it could not be said that the appellant had "fled" Hungary within the meaning of the 2003 Act and accordingly he could not be surrendered. On appeal the Supreme Court affirmed the decision. The Criminal Justice (Miscellaneous Provisions) Act, 2009 was subsequently enacted to implement the terms of the Council Framework Decision 2002/584/J.H.A. (Framework decision) which provided for amended criteria in relation to extradition. On foot of this fresh extradition proceedings were commenced in the High Court and Peart J made an order for surrender (11/02/11). An appeal was then brought to the Supreme Court as to whether it was permissible for proceedings for extradition to be brought for a second time and whether this breached the constitutional rights of the appellant. It had been indicated on behalf of the appellant that he was willing to serve a sentence in Ireland. It was submitted that a binding decision had been issued already by the courts which the Oireachtas (by passing subsequent legislation) should not interfere with.

Held by O'Donnell J (in concurring with Hardiman J and Fennelly J) in allowing the appeal: The facts alleged did correspond to a number of Irish offences under the Road Traffic Act, 1961. The sentence was one which was of sufficient gravity as to fall within the European arrest warrant regime. No culpable delay had occurred which would render it unfair to proceed with the surrender process. The court did not accept the argument that the Framework Decision and any domestic implementing legislation were not applicable to offences occurring before the accession of Hungary to the European Union. It could not be said that a further application for surrender would constitute an abuse of process. The subsequent amendments to legislation regarding extradition were not an unconstitutional interference into the previous court decision in favour of the appellant. However it had not been demonstrated that the Oireachtas has expressed any clear intention that the right which had been acquired by the appellant as a result of the previous court proceedings was to be interfered with and thus the appellant should not be submitted to the surrender process.

EUROPEAN ARREST WARRANT ACT 2003 S16

CONSTITUTION ART 6

CONSTITUTION ART 34

CONSTITUTION ART 37

EUROPEAN ARREST WARRANT ACT 2003 S5

CONSTITUTION ART 40.1

CONSTITUTION ART 41

CONSTITUTION ART 42

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

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