The Minister for Justice, Equality and Law Reform v Ciaran Tobin (No. 1)

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 12 January 2007
• Neutral Citation: [2007] IEHC 15
• Court: High Court
• Docket Number: Record Number: No. 69 Ext/2005
• Date: 12 January 2007

[2007] IEHC 15

THE HIGH COURT

Record Number: No. 69 Ext/2005

Minister for Justice v Tobin

Between:

The Minister for Justice, Equality and Law Reform

Applicant

And

Ciaran Tobin

Respondent

CRIMINAL JUSTICE ACT 1984 S4

CRIMINAL JUSTICE (FORENSIC EVIDENCE) ACT 1990 S4(5)

CRIMINAL JUSTICE (FORENSIC EVIDENCE) ACT 1990 S2(1)

ENRIGHT v IRELAND 2003 2 IR 321 2004 1 ILRM 103

BYRNE v GREY & IRELAND & AG 1988 IR 31

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORPORATION 1984 IR 381

CRIMINAL JUSTICE (FORENSIC EVIDENCE) ACT 1990 S4(1)

CRIMINAL JUSTICE (FORENSIC EVIDENCE) ACT 1990 S2(5)

Fled

European Arrest Warrant Act 2003 (No 45), s 10 - (2005/69Ext - Peart J - 12/1/2007) [2007] IEHC 15

Facts: The respondent was charged with road traffic offences causing death in respect of an incident in Hungary,which place he had left prior to his trial. The respondent objected inter alia to his surrender pursuant to s. 10 of the European Arrest Warrant 2003, alleging that the warrant was invalid and that there was no correspondence of offences

Held by Peart J. in directing the release of the respondent, that the respondent had not fled from Hungary. The "fleeing"

envisaged by the Oireachtas in s. 10 of the Act of 2003 for surrender in such an instance had to occur following the

imposition of sentence and not where the respondent left before trial.

Reporter: E.F.

1 Mr Justice Michael Peart delivered on the 12th day of January 2007 :

2 The Republic of Hungary acceded to membership of the European Union on the 1 ^st May 2004: The European Arrest Warrant Act, 2003 came into law in this country on the 1 ^st January 2004. By S.I. 206 of 2004, European Arrest Warrant Act 2003 (Designated Member States) (No.3) Order 2004, the Minister for Foreign Affairs designated, inter alios, Hungary for the purpose of section 3 of the Act, it being a country "that has, under its national law, given effect to the Framework Decision." Section 4 of the Act provides that the Act shall apply in relation to an offence "whether committed or alleged to have been committed before or after the commencement of this Act". Prior to its accession to EU membership, there were no extradition arrangements in place between Ireland and Hungary.

3 In relation to Hungary there is no delimitation in the Act or S.I. 206 of 2004 as to the starting date for offences which can be the subject to a European arrest warrant. The offence in the present case was committed on the 9 ^th April 2000, and he was convicted in absentia on the 7 ^th May 2002. One of the points of objection raised by the respondent arises in relation to retrospectivity and I will return to that matter in due course.

4 The present application is one for the surrender of the respondent the Republic of Hungary pursuant to a European arrest warrant which bears the date 12 ^th October 2004, although it is clear for the reasons which will be explained in due course that it was issued sometime in April 2005.

5 That warrant was transmitted to the Central Authority here (the applicant) on the 15 ^th June 2005, and was received on the 16 ^th June 2005. Thereafter some time passed while certain clarifications were sought and provided, but on the 20 ^th December 2005, an application was made to this Court for the endorsement of that warrant under s. 13 of the European Arrest Warrant Act, 2003, as amended. That order was made, whereupon the respondent was arrested in Dublin at his home on the 12 ^th January 2006 and brought before the High Court as required. The Court made an order fixing the date for hearing, and remanding him on bail until the determination of the present application for an order of surrender. That hearing eventually took place on the 19 ^th and 20 ^th December 2006.

6 Thomas O'Connell SC, (with him Emily Farrell BL) appeared for the applicant, and Brian Murray SC (with him David Kean BL) for the respondent.

The offence and background facts:

7 According to the endorsed warrant on foot of which the respondent was arrested and brought before the Court, the charge against him in Hungary and in respect of which he was convicted and sentenced in absentia was one of "the misdemeanour of violation of the rules of public road by negligence causing death".

8 The section of the Hungarian Criminal Code which provides for this offence is stated to provide that " the person who causes grievous bodily harm to another person or persons by the violation of the rules of public road traffic by negligence commits a misdemeanour, and shall be punishable with imprisonment of up to one year, labour in the public interest, or fine", but that "if the crime causes death" the punishment shall be up to five years' imprisonment.

9 A second version of the warrant subsequently transmitted (a so-called 'amended warrant', but one which was never endorsed pursuant to s. 13 of the Act) states that an offence is committed under the section where any person recklessly causes serious harm/death to another person by breaking the rules of the road.

10 According to a third version of this warrant (again never endorsed as a warrant for execution) a person is guilty of the offence under section 1 87 of the Hungarian Criminal Code if the person by negligence causes grievous bodily harm/death to a person by a violation of the rules of the road.

11 I refer to these different documents since they refer, relevant to this particular case, to the offence as deriving alternately from negligence causing death, and recklessness causing death.

12 It is worth noting that in all three documents in the Hungarian language, the wording in the second part of paragraph (e) as to the nature and classification of the offences under Hungarian law is identical. It is only in the translations thereof into English which that any differences are evident. The first portion of paragraph (e) giving the description of the accident contains the same text in the Hungarian language in the second and third documents, although the translation is slightly different though not in any way that is material. The first document (the warrant on foot of which the respondent was arrested) contains a first section of paragraph (e) which is different in the Hungarian text from that which appears in the later two versions, and the translation is therefore different. The first document is the only one of the translations which refers to the steering movement to the right occurring "after overtaking".

13 These matters assume some relevance to the arguments made by the respondent as to correspondence of the offence for which he was convicted, with any offence in this jurisdiction.

14 Very tragically, in the present case, two young children died when struck by the respondent's vehicle, and the respondent received a sentence of three years' imprisonment, later adjusted on appeal to three years', only eighteen months of which is to be served, the respondent to be released on parole in respect of the balance of the term imposed.

The facts of the accident:

15 The warrant which was first transmitted and which was endorsed for execution gives a description of the circumstances in which the offence was committed as follows:

"On 9 April 2000, around 3.45pm [the respondent] was driving the Volvo S 40 vehicle of licence plate number GZJ 500 with four passengers along Móricz Zsigmund Street within the city limits of Léanyfalu (Hungary), in an inhabited area at a speed of 75-80 kilometres per hour proceeding from the direction of Visegrád to Szentendre. After overtaking due to an excessive steering movement and the vehicle's high speed he drove at a speed 71-80 kph on the sidewalk, which was separated from the road by a raised stone edge, and he hit Márton ZOLTAI, aged 5, who was waiting on the sidewalk, and Petra ZOLTAI, aged 2, who was sitting in a pram. Both Márton Zoltai and Petra Zoltai died on the spot as a result of the accident." (my emphasis)

16 As I have mentioned, two further documents were received, and which Mr O'Connell has stated to be amended warrants rather than new warrants, and it is the description of the accident contained in the 3 ^rd such document which, he states, contains the description of the acts of the respondent from which correspondence should be considered. The third document makes a change in respect of the portion highlighted in the above paragraph and states instead:

"...The accused steered to the right for unknown reasons, and due to this sudden movement of the steering wheel, and to the speed, being excessive compared to the traffic conditions, the vehicle went up on the sidewalk..."

17 There is information about how this accident happened by reference to the judgment of the Hungarian Court, and I will refer to that later when dealing with correspondence. There is also some evidence in the form of statements from the respondent and his passengers in the form of sworn statements, and which, under rules of procedure in Hungary, were submitted to the Court as evidence, but which were ruled inadmissible since the translator of the statements was the daughter of one of the lawyers representing the respondent at trial.

18 By the provisions of s. 16 of the European Arrest Warrant Act, 2003, as amended, the Court must be satisfied of the following matters before making an order for surrender:

19 (a) that the person before the High Court is the person in respect of whom the European arrest warrant was issued,

20 (b) the European arrest warrant, or a facsimile or true copy thereof, has been endorsed in accordance with section 13 for execution of the warrant,

21 (c) where appropriate, an undertaking under section 45 or a facsimile or true copy thereof is provided to the court.

22 (d) the High Court is not required, under sections 21A, 22, 23 or 24 (inserted by sections 79, 80, 81, and...