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

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly
• Judgment Date: 25 February 2008
• Neutral Citation: [2008] IESC 3
• Date: 25 February 2008
• Court: Supreme Court
• Docket Number: [2005 No. 69 Ext & S.C. Nos. 21, 22 & 36 of 2007]

[2008] IESC 3

THE SUPREME COURT

Murray C.J.

Denham J.

Geoghegan J.

Fennelly J.

Kearns J.

Appeal Number: 21/2007

Appeal Number: 22/2007

Appeal Number: 36/2007

Min for Justice v Tobin

Between/

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Applicant/Appellant

AND

CIARÁN FRANCIS TOBIN

Respondent/Respondent

EUROPEAN ARREST WARRANT ACT 2003 S10

CRIMINAL CODE OF REPUBLIC OF HUNGARY

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005

SHORTER OXFORD ENGLISH DICTIONARY 3ED 1944

VON COLSON & KAMANN v LAND NORDREIN-WESTFALEN CASE 14/83 1984 ECR 1891

CRIMINAL PROCEEDINGS AGAINST MARIA PUPINO C-105/03 COURT (GRAND CHAMBER) 16.06.2005 2005 ECR I-5285

MIN FOR JUSTICE v DUNDON 2005 1 IR 261 2005 2 ILRM 149

MIN JUSTICE v ALTARAVICIUS 2006 2 ILRM 241

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 1.2

CRIMINAL LAW

Extradition

European arrest warrant - Surrender to issuing state - Surrender post conviction - Meaning of "fled" - Principle of conforming interpretation - Limits of principle - Whether requirement to have regard to preparatory materials - Minister for Justice v Altaravicius [2006] IESC 23, [2006] 3 IR 148 and Minister for Justice v Dundon [2005] IESC 13, [2005] 1 IR 261 applied; Criminal Proceedings against Pupino (Case C-105/03) [2005] ECR I-05285 [2006] QB 83 followed - European Arrest Warrant Act 2003 (Designated Member States) (No 3) Order 2004 (SI 206/2004) - Extradition Act 1965 (No 17), s 10 - European Arrest Warrant Act 2003 (No 45), ss 3, 4, 5, 10, 16 and 38 - Constitution of Ireland 1937, Articles 38 and 40.3 - Council Framework Decision 2002/584/JHA - European Convention on Human Rights, article 6 - Applicant's appeal dismissed (21, 22 & 36/2007 - SC - 25/2/2008) [2008] IESC 3

Minister for Justice v Tobin

1 This appeal concerns the meaning of the word "fled" in the European Arrest Warrant Act, 2003. The Court has already pronounced its decision on 3rd July 2007. I here give the reasons for that decision.

2 The warrant concerns a quite appalling tragedy which occurred in the year 2000. The respondent caused the death of two small children while driving a motor car in Hungary. While his prosecution was pending, he left that country lawfully and regularly. He was later convicted and sentenced in his absence. Peart J held that he had not "fled" that jurisdiction within the meaning of section 10 of the European Arrest Warrant Act, 2003 and, for that reason, declined to make the order for his surrender. The appellant (whom I will call "the Minister") has appealed against this decision.

3 Peart J decided a number of other points against the respondent, which he had raised by way of objection. There is a cross-appeal and a notice to vary. The Court decided to hear, in the first instance, the Minister's appeal, since that concerns the single issue of whether the respondent had fled. This judgment deals with that issue.

The facts

4 12th October 2005 Pest County Court, Budapest in the Republic of Hungary issued a European Arrest Warrant seeking the surrender of the respondent in respect of a sentence imposed on him for an offence of negligence causing death arising out of a road traffic accident.

5 The respondent was born in 1964. He is an Irish citizen and a chartered accountant. He is married and has two children. At the time of the tragic events giving rise to his prosecution, he was living in Hungary as part of his employment with a large Irish financial institution.

6 The European Arrest Warrant arises out of a fatal road traffic accident, which occurred when the respondent was driving a motor car on 9th April 2000. Two very small children, a brother and sister, lost their lives. The respondent, in his affidavit, says that his car lurched onto the pavement, that he applied the brake but that the car would not stop. He accepts that the car struck the two children, who were killed. He accepts that this was a terrible tragedy and he has expressed deep and sincere sympathy to the bereaved family.

7 The respondent engaged the services of a Hungarian lawyer to advise and assist him during the police investigation of the accident. There were severe language difficulties. The lawyer's daughter acted as interpreter and translator at the police interviews. Those interviewed included the respondent, his wife and two Irish friends who had been in the car. It appears that their statements were translated into Hungarian by the daughter of the lawyer.

8 The respondent was permitted to return to Ireland with his family in August 2000, while the investigation was proceeding. His passport was returned to him at his request. The reasons given for the proposed visit to Ireland were that the respondent's wife had been asked to be a bridesmaid at her sister's wedding and that he wished his own parents, who were getting on in years, to have the opportunity to meet his children since they could not easily come to Hungary. Pursuant to a provision of the Hungarian Criminal Code, he made a deposit of 500,000 HUF by way of bail. On 9th October 2000, he returned to Hungary and duly notified the Hungarian court. On 30th November 2000, he left Hungary permanently, as his term of service there had come to an end. It is clear from the legal materials provided by the Hungarian Authorities that his second and final departure from Hungary came within the scope of the approved arrangements.

9 Criminal proceedings were commenced against the respondent in Hungary on 11th September 2000. He was charged with " causing a fatal road traffic accident through negligence." He says the terms of the charge were not received by his lawyers until 7th June 2001. As will appear later, the applicable provisions of the Criminal Code, of which the respondent had availed, permitted service of documents on lawyers.

10 The respondent did not attend his trial. He says that he had understood that the statements made at police interviews (and translated into Hungarian) would be admitted at the trial. He learned in April 2002 that there was a doubt about the admissibility of these documents, by reason of the relationship of the translator to his lawyer. He made a declaration at the Hungarian Consulate in Dublin that this fact had had no influence on the nature or content of the statements.

11 The trial took place in Hungary on 7th May 2002, in the voluntary and duly authorised absence of the respondent. The statements of the Irish witnesses were ruled inadmissible in their entirety pursuant to a provision of the Hungarian Code of Criminal Procedure. This was by reason of the lack of independence of the translator, as she was a daughter of the lawyer. The respondent was convicted and sentenced to three years imprisonment, banned from driving and fined.

12 It should be said that the judgment of the Hungarian court, insofar as it is available, is detailed and meticulous. The respondent has not suggested that the excluded evidence would have assisted his defence in any particular way. Furthermore, the arrangements into which the respondent entered permitted his trial to take place in his absence, with the further consequence that the judgment could not be set aside so as to enable a retrial to take place.

13 The respondent appealed unsuccessfully against his conviction, but the sentence was altered to one where he would be required to serve only half of the three years and then to be released on what is described in the translation of that decision as " ticket of leave."

The High Court judgment

14 Section 10 of the Act of 2003, as amended by the Criminal Justice (Terrorism Offences) Act, 2005 provides that, " [w]here a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person," who falls within one of the prescribed categories, subject to the Act and to the Council Framework Decision of 13th June 2002 on the European Arrest Warrant and the surrender between Member States, he is to be arrested and surrendered to the issuing state.

15 It was common case, in the High Court, as it remains, that the only provision capable of applying to the respondent is paragraph (d), according to the lettering of the amended version of section 10. To be brought within the scope of that provision, the respondent must be shown to be a person:

"on whom a sentence of imprisonment or detention has been imposed and who fled from the issuing state before he or she-"

(i) commenced serving that sentence, or

(ii) completed serving that sentence,..."

16 Peart J considered the facts and the terms of the judgment of the Hungarian court before concluding that the respondent had been permitted to leave Hungary lawfully once the procedures of the Hungarian Criminal Code had been observed. He considered that, by leaving Hungary, in those circumstances, the respondent was not acting in breach of any law. Peart J was satisfied that " by the plain and ordinary meaning of these words, the fleeing must occur following the imposition of sentence, and not as in this case, where the respondent left before his trial." He held that paragraph (d) covered " a situation where both conviction and sentencing has taken place and the person has "fled" before that sentence was served."

17 He then turned to the meaning of the word, " fled," and held:

"In my view the plain and ordinary meaning of 'fled' cannot be regarded as the same as the plain and ordinary meaning of 'left'. The former has within it an intention to escape from or to evade something, such as in this case, justice. It is not so neutral as the word "left". One can leave for any or no reason whatsoever, but in ordinary usage, the word "fled" is used when there is a particular purpose in leaving, namely to avoid some...