Peter Bolger v Patrick O'Toole

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice Fennelly
• Judgment Date: 17 June 2008
• Neutral Citation: [2008] IESC 38
• Docket Number: [S.C. Nos. 461 of
• Date: 17 June 2008

[2008] IESC 38

THE SUPREME COURT

Denham J.

Hardiman J.

Fennelly J.

Record No. 461/05

Record No. 47/06

Bolger v O'Toole & Judge Haughton

IN THE MATTER OF THE EXTRADITION ACT 1965 AS AMENDED

BETWEEN

PETER BOLGER

Plaintiff/Respondent

AND

PATRICK O'TOOLE

Defendant/Appellant

JUDICIAL REVIEW

BETWEEN

PETER BOLGER

Applicant/Appellant

AND

JUDGE GERARD HAUGHTON IRELAND AND THE ATTORNEY GENERAL

Respondents

EXTRADITION ACT 1965 PART III

EXTRADITION ACT 1965 S50(2)(bbb)

EXTRADITION ACT 1965 S47

EXTRADITION ACT 1965 S50

EXTRADITION (AMDT) ACT 1987 S2(1)(b)

EXTRADITION ACT 1965 S50(2)(c)

THEFT ACT 1968 S1(1) (UK)

FORGERY & COUNTERFEITING ACT 1981 S1

COMPANIES ACT 1985 S458 (UK)

CONSTITUTION ART 40.4.3

EXTRADITION ACT 1965 S47(2)

EXTRADITION ACT 1965 S42(2)

EXTRADITION ACT 1965 S42(3)

EXTRADITION (EUROPEAN UNION CONVENTIONS) ACT 2001 S26

WYATT v MCLOUGHLIN 1974 IR 378

EXTRADITION (EUROPEAN UNION CONVENTIONS) ACT 2001 S2(2)

FORGERY ACT 1913 S4

FUSCO v O'DEA 1998 3 IR 470

WAN v CONROY 1998 3 IR 527

B(M) v CONROY 2001 2 ILRM 311

COLEMAN v O'TOOLE 2003 4 IR 222 2004 1 ILRM 389

CARNE v O'TOOLE (ASSISTANT GARDA COMMISSIONER) UNREP SUPREME 21.4.2005 2005/9/1885 2005 IESC 22

KAKIS v GOVT OF REPUBLIC OF CYPRUS 1978 2 AER 634 1978 1 WLR 779

HANLON v FLEMING 1981 IR 489 1982 ILRM 69

Abstract:

Criminal law - Extradition - Judicial review - Delay - Illness -Judicial review proceedings - Exceptional circumstances - Extradition Act 1965

Facts: The two sets of proceedings related to extradition proceedings to compel the respondent to serve sentences in England. The State sought to appeal against an order of the High Court releasing the respondent by reason of delay and the respondent sought to appeal against the dismissal of an application for judicial review of the decision of the District Court directing his delivery to England. The issue arose as to whether the length of time taken to extradite him was oppressive and unfair and the illness of the respondent was considered.

Held by the Supreme Court (per Fennelly J., Denham, Hardiman JJ. concurring) that the onus was on the respondent to establish the unfairness of the trial procedures by clear evidence. It would not be unjust to deliver the respondent and the appeal would be allowed from the order of the High Court directing his release. The District Court had no jurisdiction to entertain an argument based upon delay and its decision could not be questioned on that basis. The appeal would be dismissed and the order of the High Court in the judicial review proceedings would be affirmed. An order for release would be made in respect of the three forgery offences.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Fennelly delivered the 17th day of June, 2008.

2 1. This judgment concerns two sets of proceedings related to an attempt to extradite Mr Peter Bolger to serve sentences in England. The warrants were issued and endorsed before the coming into force of the European Arrest Warrant. Part III of the Extradition Act 1965 ("the Act of 1965") applies.

3 2. Firstly, the State, in the form of the Assistant Commissioner of the Garda Siochána, appeals against a High Court order that the above-named respondent (Mr Bolger) be released by reason of lapse of time pursuant to section 50(2)(bbb)) of the Extradition Act, 1965, as amended.

4 3. Secondly, Mr Bolger appeals against the dismissal of an application for judicial review of the decision of the District Court directing his delivery to England and Wales.

The procedure to date

5 4. On the 25 ^th of June 1998 a Stipendiary Magistrate and Justice for the Inner London Area, issued fourteen warrants seeking the arrest of Mr Bolger in relation to offences for which he had been convicted and sentenced by the Southwark Crown Court. These Warrants were sent to this State and endorsed by Assistant Commissioner O'Toole on the 19 ^th October 1998. Mr Bolger was arrested and brought before the Metropolitan District Court on the 20 ^th October 1998 where he was initially remanded in custody, but later released on bail.

6 5. On the 15 ^th of June 2004 District Judge Gerard Haughton made orders under Section 47 of the Extradition Act, 1965 directing Mr Bolger's delivery into the custody of the London Metropolitan Police.

7 6. Mr. Bolger challenged the District Court decision in two High Court proceedings. Firstly, he applied by Special Summons to the High Court in June 2004 for a direction for his release pursuant to Section 50 of the Act of 1965 as amended on two grounds:

8 · Lapse of time pursuant to section 50(2)(bbb) of the Act of 1965, inserted by section 2(1)(b) of the Extradition (Amendment) Act, 1987 (hereinafter "paragraph (bbb)";

9 · Absence of correspondence between certain of the offences of which Mr Bolger had been convicted (forgery) and any offence under the law of the State, as required by section 50(2)(c) of the Act of 1965.

10 7. Secondly, Mr Bolger obtained leave to apply for judicial review of the decision of Judge Haughton in the District Court, principally on the ground that his extradition would constitute a breach of his fundamental and constitutional rights.

11 8. These two sets of High Court proceedings were heard in July 2005. On 28 ^th October 2005, Peart J delivered a single judgment for the two sets of proceedings. He dismissed the application for judicial review. However, he granted a direction for the release of Mr Bolger on the ground of lapse of time pursuant to paragraph (bbb), while rejecting his argument based on paragraph (c).

12 9. The Assistant Commissioner has appealed against the High Court order for Mr Bolger's release pursuant to section 50. Mr Bolger, in that appeal, submits that the learned High Court judge erred in refusing him relief pursuant to paragraph (c).

13 10. Mr Bolger has appealed against the judgment and order of Peart J, dismissing his application for judicial review of the District Court order.

14 11. Paragraph (bbb) requires the Court to have regard to all the circumstances when considering whether it would be "unjust, oppressive or invidious to deliver [a person] up under section 47." Accordingly, I will commence by outlining the chronology of Mr Bolger's prosecution in England and the various proceedings which have taken place in this jurisdiction.

Chronological history

15 12. The offences the subject of the extradition warrants are alleged to have been committed between 1 ^st January 1991 and 16 ^th July 1991. The charges allege the stealing of cheques and money, carrying on business with intent to defraud, and forgery.

16 13. Mr Bolger was arrested and questioned by police in the course of their investigations on 15 ^th July 1992. He was charged on 20 ^th April 1994. He was released on unconditional bail with an obligation to attend at Bow Street Magistrates Court. Following preliminary hearings, he was committed on bail to stand trial in the Southwark Crown Court in June of 1994.

17 14. The trial of Mr Bolger and a co-accused commenced at Southwark Crown Court before His Honour Judge Watts and a Jury on the 13 ^th of March 1995. Mr Bolger attended at his trial each day until Monday the 3 ^rd of April 1995. During the trial, he had returned to Ireland at week-ends. On 3 ^rd April 1995 he failed to attend on the ground of illness.

18 15. By that time all evidence had been heard in the criminal trial and both prosecuting and defending counsel had made closing submissions to the Jury. The trial judge decided to continue the trial in Mr Bolger's absence. Mr. Bolger continued to be represented in the trial by counsel and solicitor and the jury was informed that he was absent, that a medical certificate had been received and that they should not draw any inference adverse to Mr Bolger from his absence.

19 16. The trial Judge issued a bench warrant on the 3 ^rd of April 1995 which directed his arrest 'for breaching his conditions to surrender to bail at Southwark Crown Court'.

20 17. Mr Bolger was convicted by the jury on the 6 ^th and 7 ^th April 1995 of the fourteen offences specified in the warrants received from the United Kingdom being:-

21 (i) 10 offences of Theft contrary to Section 1(1) of the Theft Act, 1968;

22 (ii) 3 offences of Making a False Document With Intent contrary to Section 1 of the Forgery and Counterfeiting Act, 1981; and

23 (iii) 1 offence of knowingly carrying on the business of a limited company for a fraudulent purpose contrary to Section 458 of the Companies Act, 1985.

24 18. Sentencing was adjourned on a number of occasions. The plaintiff submitted medical evidence in the form of medical certificates to the Court in relation to his medical condition and initially indicated a willingness to be examined by a doctor instructed by the Crown Prosecution Service. A suggestion that independent medical examination take place was ultimately rejected by Mr Bolger.

25 19. The Trial Judge thereafter proceeded to sentence Mr. Bolger, in his absence, on 2 ^nd June 1995. He imposed sentences of two years imprisonment to run concurrently on the theft charges and one year to run consecutively on each of the forgery charges.

26 20. Mr Bolger has not appealed his conviction or sentence. Nor has he sought judicial review of any of the decisions of the Crown Court.

27 21. Warrants were issued on 27 ^th December 1995 for the purpose of seeking the extradition of Mr Bolger to serve the sentences imposed on him. These warrants were endorsed for execution on 15 ^th February 1996. Mr Bolger was arrested and brought before the District Court. The application was heard on 23 ^rd May 1996, 23 ^rd July and 10 ^th October 1996. District Judge Windle declined to make the order for the surrender of Mr Bolger and ordered his release for reasons which have no bearing on subsequent events.

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