Extradition to USA refused as respondent would be exempt from prosecution in Ireland due to time limits.

THE HIGH COURT

[2025] IEHC 550

[2023 No. 63 EXT]

BETWEEN

ATTORNEY GENERAL

APPLICANT

AND

JOHN JOSEPH DRISLANE

RESPONDENT

JUDGMENT of Mr Justice Patrick McGrath delivered on the 14 October 2025

A. BACKGROUND

1. In this application the Applicant seeks an order pursuant to section 29(1) of the Extradition Act, 1965, as amended (“the Act of 1965”) committing the respondent to prison, there to await the order of the Attorney General for his extradition to the United States of America (“the USA”).

2. This application for the extradition of the respondent to the U.S.A. is governed by the Extradition Act, 1965 [‘the Act of 1965’] and the extradition treaty arrangements [‘the Extradition Treaty’] as between Ireland and the U.S.A. The formal requirements of the Act of 1965 and the Extradition Treaty have been helpfully summarised by Edwards J in Attorney General v O’Gara [2012] IEHC 179 and the Court relies on the dicta set out therein in relation to the legal provisions and formal proofs.

3. No issue is raised by the Respondent in relation to any of the formal proofs raised.

This court must nonetheless be satisfied that such proofs are met prior to considering whether to make an order for extradition in this case. Part II of Act applies to USA

4. As noted by Edwards J in O’Gara, a request for extradition can only be duly made if the requesting state is one to which Part II of the Act of 1965 applies. Having considered the relevant legislation and statutory instruments, I am satisfied that the U.S.A. is a state to which Part II of the 1965 Act applies.

Extradition Duly Requested

5. The Court must be satisfied pursuant to s.9 of the 1965 Act that the request for surrender has been duly requested. Under s.23 of the Act, the request must be in writing and must be from a diplomatic agent or made by any other means provided for in the relevant extradition provisions.

6. On the 2 October 2018 a request for the extradition of the Respondent was made by the United States of America. It was communicated to the Department of Foreign Affairs by the Embassy of the United States in Dublin and was dated the 21 September 2018. On the 14 September 2022, having received notification from the Irish Department of Justice that extradition is not permitted for revenue offences, the US Embassy requested the extradition of the Respondent ‘solely on the bail jumping charge’ and withdrew its request in relation to the revenue offences.

7. The Washington Treaty provides that the request for extradition shall be made in writing and shall be transmitted with supporting documents through the diplomatic channel. Here the extradition request has been transmitted through the diplomatic channel, and I am satisfied that the requirements of s.23(1) of the Act have been met and the extradition of Mr Drislane duly requested.

8. On the 13 March 2023 the Minister for Justice certified, pursuant to s26(1)(a)of the Act of 1965, that the extradition request had been duly made by and on behalf of the U.S.A. and received by him in accordance with Part II of the 1965 Act.

9. The court must first be satisfied that the person before the Court, is before this court pursuant to ss 26 or 27 of the Act of 1965. A warrant for the arrest of Mr Drislane was issued by the High Court pursuant to Section 26 of the Act of 1965, on the 24 April 2023. This warrant was executed on the 18 April 2024 and the Respondent was brought before the Court on the following day. Though initially remanded in custody, he was admitted to bail on the 29 April 2024.

10. The Respondent thereafter filed a Notice of Objection on the 13 May 2024 and filed an expert report on the 18 October 2024.

11. By letter dated the 12 December 2024, in response to a request from the Department of Justice, the US Department of Justice furnished additional information.

12. The documentation received from the requesting state, which include a mixture of original and copy documents, consists of:

a. An original Certificate of The Attorney General of the USA, dated 21 September 2018, certifying that Jason E. Carter is and was at the relevant time Associate Director of the Office of International Affairs, Criminal Division, USA;

b. An original Certificate of Jason E. Carter, dated the 21 September 2018, attaching the original affidavit, with certified attachments, of Sarah E. Paul, offered in support of the request for the extradition of the respondent and confirming that true copies of those documents are maintained in the official files of the US Department of Justice in Washington D.C.;

c. An affidavit of Sarah E. Paul, dated the 6 September 2018, together with the following exhibits: copies of information, arrest warrants, indictment, transcript of proceedings, charges to which guilty pleas entered, applicable statutory provisions, affidavit of Special Agent Arthur Brunwasser, photograph of the Respondent

13. I am satisfied that the documentation received, including the documentation subsequently received as additional information, is admissible in these proceedings and no issue is in any event taken as to admissibility.

14. The surrender of the respondent is sought in order that he might be prosecuted for a ‘bail jumping’ offence allegedly committed between 2006 and 2009. He was also sought for three revenue type offences but, as outlined above, it was confirmed in a subsequent Diplomatic Note, dated the 12 September 2022, that his surrender is no longer sought for those offences.

B. NOTICE OF OBJECTION

15. A Notice of Objection was filed on the 13 May 2024 and the Respondent therein objects to surrender on the following grounds:- a. Surrender is now precluded by s.18 of the Extradition Act, 1965 (as amended)

as Mr Drislane has, according to the law of either the requesting country or this State, become immune by reason of lapse of time from prosecution or punishment;

b. Surrender is prohibited by s.10(3) of the 1965 Act as the conduct alleged in the said request does not correspond with an offence or offences under the laws of the State;

c. There is a lack of clarity as to the offence, legal classification and potential sentence that may be imposed following surrender and surrender is therefore precluded pursuant to the 1965 Act;

d. Surrender ought be refused as proceedings will be brought, a penalty or sentence will be imposed and the Respondent will be detained or otherwise restricted in his personal freedom for the purpose of an offence committed prior to his surrender other than that for which his extradition is sought;

e. The Respondent fears that, if surrender, matters extraneous to the extradition offence will be taken into account at sentencing, including offences which do not correspond to offences under the laws of this State f. His surrender would amount to a breach of, or a disproportionate interference with, his rights under the Constitution, Article 8 of the European Convention of Human Rights and Article 7 of the Charter of Fundamental Rights of the European Union

16. At the hearing of this application the Respondent only pursued a, b, d and e above.

C. RELEVANT FACTS

17. On the 14 June 2004, the Respondent pleaded guilty to three revenue type offences before Judge Mukasey of the US District Court. He was on bail on a US$20,000 personal recognizance bond and then remanded on continuing bail to the 22 September 2004 for sentence. In the course of the hearing Judge Mukassey expressly advised the Respondent as follows:-

‘Mr Drislane, I am obligated to tell you that you have to be here on September

22 or any adjourned date if for some reason the sentencing gets adjourned.

So, stay in touch with [your lawyer] and make sure you know the proper date and time. If you don’t appear for sentencing, that’s a separate crime, is bail jumping that carried a five year, $250,,000 penalty, in addition to anything that you face on the charges to which you have already pleaded guilty today.

So please be here at the appointed time’

18. Thereafter the District Court adjourned the sentencing date in order that the parties could explore the possibility of Mr Drislane co-operating with the Government.

Difficulties were encountered in contacting him and a bench warrant was issued by the Court on the 10 July 2006. On the 6 January 2008 a pre-trial conference was held before Judge Baer and the Respondent was required, by the terms of his recognizance to attend on that date. His attorney was present, but the Respondent did not attend and Judge Baer revoked his bond. On the 10 February 2011, a Grand Jury thereafter returned an indictment in the following terms:-

‘From on or about April 29, 2006, through on or about January 6, 2009, in the Southern District of New York, John Drislane, the defendant, having been released on bail in connection with a charge punishable for a term of imprisonment of five years or more, to with two counts of attempted evasion of Federal employment taxes…unlawfully, wilfully, and knowingly did fail to appear before the Court for a court conference as required by the conditions of his release’

19. A warrant of arrest issued that day, requiring the Respondent’s arrest to answer a charge of ‘failure to appear’ in violation of US Code Title 18, Section 3146.

D. SUBMISSIONS OF RESPONDENT

Section 18 of the 1965 Act

20. Section 18 of the 1965 Act (as amended) provides:- ‘Extradition shall not be granted when the person claimed has, according to the law of either the requesting state or the State, become immune by reason of lapse of time from prosecution or punishment’

21. The Respondent correctly submits that extradition must be refused if the prosecution of the offence has become statute barred by the passing of time either (a) in the requesting country – here the USA or (b) this State – Ireland.

22. The Respondent firstly submits that the interpretation of s. 18 is clear from the plain meaning of the section. He further submits that the decision of Sullivan J in Attorney General v POC [2007] 2 IR 421 provides support for his submission.

23. The Respondent says that the following is clear on the facts of this case:- a. The candidate corresponding offence under Irish law, namely an offence pursuant to s. 13(1) of the 1984 Act, is a summary offence only;

b. The general time limit applicable to all summary offences is provided for by Section 10(4) of the Petty Sessions (Ireland) Act, 1851. Section 13(6) however provides that ‘Notwithstanding section 10(4) of the Petty Sessions (Ireland)

Act, 1851, summary proceedings for an offence under this section may be instated within 12 months from the date on which this offence was committed’;

c. The offence date in the indictment is ‘From on or about April 29, 2006, through on or about January 6, 2009’. The initiation of this criminal complaint was by way of a Grand Jury Indictment filed with the Clerk of the Court on the 10 April 2011. The US proceedings were initiated well beyond

12 months after the date of the offence of ‘bail jumping’ alleged against the Respondent. Correspondence

24. The Respondent relied upon his written submissions in support of this objection.

25. In those submissions he contends that correspondence has not been made out and furthermore that this case does not fall within the principles for assessing correspondence between offences charged under ‘statutory’ or ‘regulatory’ regimes as identified by the Supreme Court in Minister for Justice v Szall [2013] 1 IR 470.

26. In the transcript of the hearing of the 14 June 2004, the Judge is recorded as stating the following to Mr Drislane:

‘ Mr Drislane, I am obliged to tell you that you have to be here on September

22 or any adjourned date if for some reason the sentencing gets adjourned.

So, stay in touch with Mr. Gioella and make sure you know the proper date and time. If you don’t appear for sentencing, that a separate crime, which is bail jumping, that carries a five year, $250,000 penalty. In addition to anything that you face on the charges to which you have already pleaded guilty today. So, please be here at the appointed date’

27. The Respondent next refers to the affidavit of Special Agent Arthur Brunwasser, dated the 6 September 2018, where having stated that the Respondent pleaded guilty on June 14 2004 and the court then set a sentencing date of September 2004 continued at paragraphs 10 and 11:

’Thereafter, the Court adjourned DRISLANES sentencing date so that the parties cold explore the possibility of DRISLANE’S cooperating with the US Government. Under the supervision of IRS – Cl, DRISLANE then participated in a consensually monitored meeting and several telephone calls. However, in approximately April 2006, IRS – Cl began to have trouble reaching DRILANE, and learned that mail sent from the IRS to DRISLANE’ company had been returned as undeliverable. Subsequently, IRS – Cl determined that DRISLANE’S telephone numbers had been disconnected, and that his residence in Carmel, New York had been completely abandoned. At that time, a neighbour reported that DRISLANE had moved out of the house and possibly back to Ireland. In light of these developments, the Court revoked DRISLANE’S bail and issued a bench warrant for his arrest.

11. On February 10, 2011, due to his flight from the United States prior to sentencing, DRISLANE was indicted for bail jumping, in violation of Title 18, United States Code, Section 3146, in case 11 Cr. 119’

28. The Respondent submits as follows:- i. While it can be shown that the claimed person was aware of the sentence date of

22 September 2004, it is not stated that he failed to appear on that date;

ii The information shows that sentencing was adjourned but it is not indicated to what date it was adjourned and whether he was notified of that date; and iii Correspondence cannot therefore be made out under s. 10(3) of the 1965 Act

Specialty

29. The Respondent here expresses a fear that he will upon surrender be sentenced for matters which are extraneous to the extradition offence for which his extradition is sought.

30. The Respondent has obtained the opinion of an Expert in US Criminal Law, namely Mr Kenneth F McCallion, Principal Attorney with the New York based firm of McCallion & Associates LLP. Having set out an impressive list of qualifications and his extensive experience, Mr McCallion states at Paragraph 9 that he has been asked to provide an opinion on the following question:-

‘If Mr Drislane is surrendered to the U.S. authorities and is convicted of the bail jumping offence, whether the sentencing judge can take into account extraneous additional matters, such as the revenue offences for which he was convicted’

31. Having set out the background to the matter, including the revenue offences to which Mr Drislane pleaded guilty and the factors which a U.S. Court must consider in determining the appropriate sentence for a bail jumping offence and the various leading cases in this regard, Mr McCallion gives the following opinion at Paragraph

16 of this report:- ’16. It is therefore clear that in calculating Mr Drislane’s sentence for bail jumping, pursuant to 18 U.S.C. 3553(a), the district court may consider a range of factors including not only the ‘nature and circumstances’ of the bail jumping offence itself, but also the ‘history and characteristics’ of Mr Drislane, among the other factors as outlined above.

These considerations could very well include the fact that Mr Drislane waived indictment and consented to the filing of a three count criminal charge against him as to (a) Count 1: Attempted evasion of federal employment taxes for the year 1997; (b) Count 2: Attempted evasion of federal employment taxes for the year 1998 and (c) Count 3: False subscription to a US income tax return for the year 1997. This is particularly true in light of Mr Drislane’s guilty plea as to all three counts on June 14, 2004. See, for example, 18 U.S.C. SS 3661 (‘no limitation shall be placed on the information containing the background, character, and conduct of a person convicted of an offence which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence’) United States v Williams 526 F.3d 1312, 1324 (11th Cir. 2008) (‘In addition, although Dimson’s previous offenses were included in his criminal history and were therefore part of the calculation of his guideline range, the court emphasised that he had committed previous ‘fraudrelated’ crimes. This fits squarely into one of the ss 3553(a) factors i.e. the history and characteristics of the offender, 18 USC ss 3553(a)(1), and was therefore a proper basis for the court’s consideration’)

CONCLUSION It is, therefore, my professional opinion, based upon my education, legal experience and research regarding this issue, that the U.S. sentencing court in Mr. Drislane’s case relating to bail jumping, may properly consider the criminal tax and revenue related offenses to which he pled guilty, as well as other matters unrelated to the bail jumping offense’

32. The Respondent relies upon the Judgment of the Supreme Court in AG v Burns Denham J, 6 December 2004 saying that, as in that case, uncharged conduct will be taken into account by the sentencing judge and surrender ought therefore to be refused.

33. The Respondent further says that there would appear to be some difference between the approach adopted the Supreme Court in Burns and with the approach of the cases relied upon by the Applicant, namely Attorney General v Russell [2006] IEHC 164, Attorney General v Davis [2016] IEHC 497 and Attorney General v Damache [2015] IEHC 339. He does however acknowledge that judgment of Peart J in Russell was upheld by the Supreme Court in an ex tempore decision.

34. He further claims that, were the sentencing court to take into account the three substantive offences, that court would be impermissibly utilising conduct which does not correspond with an offence under the laws of this State.

E. SUBMISSIONS OF APPLICANT

Correspondence

35. The Applicant submits that, if Mr Drislane had been released on bail in criminal proceedings in this jurisdiction and if he failed to appear before a court in accordance with his recognizance as he so did in the USA on the 6th of January 2009, his acts would constitute the offence of ‘failure to surrender to bail’ contrary to section 13(1)

of the Criminal Justice Act 1984 (as amended). This section provides:- ‘ If a person who has been released on bail in criminal proceedings fails to appear before a court in accordance with his recognizance, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €5000 or to imprisonment for a term not exceeding twelve months or to both’

36. The Attorney General cites Minister v Prieto [2016] IECA 90, where Finlay Geoghegan J held that the ‘essential ingredient’ of an offence contrary to s.13 is that an accused was granted bail on entering into a recognizance with a condition to attend on the occasion in question. She held that the nature of the recognizance is not an essential proof, and that the differences between the mechanism or procedure by which an accused in Ireland agrees to conditions of bail do not preclude correspondence being established. It is necessary only to prove that the requested person failed to turn up in breach of a condition to which he or she agreed when granted bail. The applicant submits that correspondence is therefore established in this case.

37. The Attorney General further submits that minimum gravity is met in both jurisdictions. It is necessary to firstly show that, under the laws of the USA, the offence for which surrender is sought is punishable by a term of imprisonment of not less than one year or by a more severe penalty (s.10 (1A)(a) of the 1965 Act) and Ms.

Paul confirms that a ‘bail jumping’ offence is punishable by a term of imprisonment of 5 years or more if, as here, the respondent commits the offence whilst awaiting sentence (Tile 18, US Code, Section 3146).

38. S.10(1A)(b) of the 1965 Act requires that the offence in question is punishable under Irish law by imprisonment for a maximum of not less than 6 months or by a more severe penalty. The penalty under s.13(1) of the 1984 Act clearly exceeds this requirement.

39. Section 10(3) requires the Court to be satisfied that the act in question for which surrender is sought would constitute an offence ‘if committed in the State on the day on which the request for extradition is made’ . Section 13 of the 1984 Act was commenced on the 1st of March 1985 and was therefore in force on the date the request was made by the USA.

40. The requirements of Section 10(4) are met as Ms Paul confirms at paragraph 12 of her affidavit that the statutory provisions in relation to ‘bail jumping’ had been enacted and were in force at the time the alleged offence was committed and remained in full effect and force on the date the Request was made.

Section 18 and Immunity

41. The Applicant submits that, contrary to the submission made by the Respondent, s.13(6) of the 1984 Act does not confer an immunity from prosecution or punishment on the facts of this case. It is submitted that it is long established that a failure to bring a summary-only prosecution within the applicable timeframe does not affect the jurisdiction of the District Court to hear a case, or to proceed to hearing. It is rather a defence that the accused can elect to rely upon if a prosecution is commenced outside the said time frame. It remains open to the complainant or prosecutor to make a complaint notwithstanding the expiry of the relevant time frame and, if the accused elects not to rely upon expiry of the said limitation period, the prosecution can proceed and, if convicted, punishment can follow. The Attorney General relies upon the comments of Denham J in Duff v Mangan [1994] 1 I.L.R.M. 91, at page 96:-

‘This question as to the jurisdiction of the Court as a consequence of the limitation as to the time of making the complaint does not become an issue for the Court until it is raised by the defence’

42. The Applicant submits that the prospective availability of a defence does not render a person ‘immune’ by reason of lapse of time from prosecution or punishment. The plain and ordinary meaning of an immunity is that the commencement of proceedings is barred ab initio, and the accused is amenable to any court or authority in respect thereof.

43. The Applicant reserves his position on the question of whether PO’C was correctly decided, but recognises on Worldport grounds that this is not the correct venue in which to canvass the issue. In any event he says that PO’C is clearly distinguishable from the present case. The applicability of s. 18 to statutory limitation periods or, more specifically, to the time limits applicable to summary only prosecutions was not at issue in that case.

Specialty

44. The Applicant notes that pursuant to Article XI of the 1983 Treaty, both the US and Ireland have agreed to abide by the rule of specialty and Ireland is therefore not required to refuse extradition pursuant to s. 20(1) of the 1965 Act.

45. He submits that the Respondent has wrongly relied on the judgment of the Supreme Court in AG v Burns in support of his contention that the situation described by his expert, Mr McCallion, represents a breach of the rule of specialty.

46. The applicant says that the Supreme Court in Burns was at pains to stress that its judgment was ‘specific to and based on the facts of this case as found by the District Court and may not be of precedential value in other cases’. In that case the Judge found as a fact that the defendant ‘might be punished for offences with which he was never charged’ and the sentencing judge could take account of ‘unindicted bad conduct’.

47. The expert evidence here is of a different nature and there is no suggestion that the Respondent might be punished for offences with which he was never charged. All that Mr McCallion (the defence expert) says is that account may be taken of the revenue offences, to which the Respondent has pleaded guilty, when he is being sentenced for the ‘bail jumping’ offence. And this is in effect treating his revenue convictions as an aggravating factor. The Applicant submits that this is no different from what occurs in this jurisdiction where it is long established that the fact that a person has a record of previous offending may be a relevant factor in sentencing and, where relevant, such record of previous convictions may be taken into account as an aggravating factor, for example People (DPP) v P.S. [2009] IECCA 1. This does not amount to a person being sentenced or otherwise restricted in his or her personal freedom for another offence within the meaning of s. 20(1) of the 1965 Act.

48. The Applicant refers to AG v Russell [2006] IEHC 164 where Peart J distinguished Burns and held that the enhancement or upward movement from a standard range of sentence, based on conduct such as a person’s flight to avoid prosecution, does not of itself constitute a punishment and is not therefore a breach of the Rule of Specialty and submits that the same approach is warranted on the facts of this case.

F. DECISION

Correspondence

49. I am satisfied that correspondence has been established in this case between the conduct alleged as ‘bail jumping’ under the laws of the United States and an offence contrary to s. 13 of the Criminal Justice Act, 1984.

50. The ‘bail jumping’ offence alleged against Mr Drislane is set out as follows in the Indictment returned against him on the 10th of February 2011:

‘From on or about April 29, 2006, through on or about January 6, 2009, in the Southern District of New York, John Drislane, the defendant, having been released on bail in connection with a charge of an offense punishable by imprisonment for a term of imprisonment of five years or more, to with two counts of attempted evasion of Federal employment taxes …… unlawfully, wilfully, and knowingly did fail to appear before the Court for a court conference as required by the conditions of his release’

51. The Respondent has conflated the questions of correspondence between the acts alleged and an offence in this jurisdiction on the one hand and proof of the allegations on the other hand. The fact that there may be some lack of clarity (a matter which I do not need to decide for this purpose) as to how the US authorities intend to prove the particular offence charged, which is what is in reality asserted by the Respondent, does not affect the question of correspondence.

52. I agree with the submission of the Applicant if Mr Drislane had been released on bail in criminal proceedings in this jurisdiction and if he had failed to attend before a court in accordance with his recognisance as he allegedly has done in the United States according to the charge he faces, such acts would constitute the offence of ‘failure to appear’ contrary to s. 13 of the Criminal Justice Act, 1984 (as amended).

53. I am therefore satisfied that correspondence is made out between the conduct alleged in the United States for which Mr Drislane is sought for the purposes of prosecution and an offence contrary to Irish law.

Specialty

54. As was made clear by Denham J in in Burns the Judgment in that case was ‘specific to and based on the facts of this case as found by the District Court and may not be of precedential value in other cases’.

55. In Burns the District Judge had found as a fact that, if surrendered, the Respondent might be ‘punished’ for offences with which he had never been charged and that the sentencing judge might take into account ‘unindicted bad conduct’. The evidence adduced by the Respondent, namely the opinion of Mr McCallion, does not provide evidence that such a risk arises in this case.

56. Based upon his report, it is clear that the Court in sentencing Mr Drislane for the offence for which his surrender is sought, and not any other offence, may take into account a broad range of matters in relation to the background and character of the Respondent. This is an approach which is generally adopted by Courts in this jurisdiction when considering the appropriate sentence to impose on a particular offender in respect of a particular offence.

57. The Respondent has pleaded guilty to the three revenue offences for which his surrender is no longer being sought, owing to the bar in the Treaty on surrender for revenue offences. His extradition is therefore no longer being sought in order that he might be prosecuted or punished for those offences. The fact that, if convicted of the ‘bail jumping’ offence in the USA, the court might, as one of a number of factors, take into account his previous criminal conduct including the three revenue offences to which he pled guilty, does not mean that the court would then be punishing him for the revenue offences. Where a court in this jurisdiction has a discretion as to the penalty to be imposed on an offender following conviction for an offence, it is common practice to consider bad conduct including previous convictions and it has never been suggested that taking such matters into account in sentencing an offender in respect of one offence, means that he or she is being again punished for those other earlier convictions.

58. The evidence in this case does not establish any risk that, if surrendered, the Respondent might, in the course of any future sentencing process, be punished for offences with which he has never been charged or might be punished for unindicted bad conduct, the mischief identified by the Court in Burns.

59. There is therefore no basis for this Court to conclude that, if extradited to stand trial for the one offence of ‘bail jumping’ in respect of which his surrender is now sought, there is a risk of a breach of s. 20 of the 1965 Act in that the Respondent might be ‘proceeded against, sentenced or detained ……. or otherwise restricted in his personal freedom, for any offence committed prior to his surrender other than that for which his extradition is requested’.

60. This ground of objection is therefore dismissed.

Section 18 of 1965 Act

61. Section 18 of the Extradition Act, 1965 (as amended) provides:- ‘Extradition shall not be granted when the person claimed has, according to the law of either the requesting state or the State, become immune by reason of lapse of time from prosecution or punishment’

62. The prohibition set out in Section 18 is mandatory and therefore extradition must be refused if a prosecution is time barred in either this State or in the Requesting Country. Here there is evidence that the case was prosecuted withing the time allowed in the United States, being within a period of five years from the date of the commission of the offence.

63. The net issue here is, if Mr Drislane was charged with a corresponding offence in similar circumstances in Ireland, whether he would have ‘become immune’ from prosecution or punishment by reason of lapse of time, in the sense that that phrase is employed in s. 18 of the 1965 Act.

64. The Respondent says that the interpretation of s.18 is clear and that the decision in Attorney General v POC [2007] 2IR provides support for his submission in this regard. He also points to the fact that in that case, as noted by O’Sullivan J, the position of the Attorney General as to the ambit of s.18 was as follows:-

‘It was submitted in response to the foregoing challenge [by Counsel for the AG] that s. 18 of the 1965 Act is concerned with specific statutory exceptions such as limitations of time by statute or pardons conferring immunity rather than the exercise of discretionary jurisdiction on an application to stay a trial’

65. In the course of refusing to order surrender in that case, O’Sullivan J made the following observations as to s. 18 and its application to the facts then under consideration:- ‘One last point in relation to the extradition application arise from a comparison between s. 50(1)(bbb) which was under consideration in Coleman v O’Toole and s.18 which is said to apply to the present case. Section 18, it will be recalled, prohibits extradition in cases where the relevant person has ‘become immune’. Section 50(1)(bbb) provides for a more elaborate regime as summarised by Hardiman J in Coleman v O’Toole. Section 18 applies inter alia to the extradition agreement between this country and the United Kingdom. It is suggested that the less elaborate regime under s.18 restricts the courts consideration to matters such as statutory limitations, but not questions of constitutional rights It is fundamental that the Irish courts will construe post-Constitutional statutes in a way which is consistent with the guarantees provided in the Irish constitution, unless such a reading is clearly contrary to the intention of legislature as expressed in the words used.

Section 18 refers to the person having ‘become immune by reason of lapse of time from punishment or prosecution’. ‘Immune’ is not defined’ So far from prohibiting the interpretation contended for by the applicant the language of s.18, in my opinion, tends to suggest it. Furthermore, it would take extremely clear language for the same legislative instrument to provide such radically different regimes as between the two different contracting parties. In my opinion the applicant has become immune by reason of lapse of time from prosecution of the alleged offences as contemplated by s.18 of the 1965 Act and I propose to make an order refusing the Attorney General’s application’

66. Here the Court is concerned with a statutory time limit. A person in this jurisdiction could not be prosecuted or punished in Ireland in the circumstances arising in this case, once he or she raised the time limitation provided for in s. 13(6) of the Act if charged or summonsed for a corresponding offence under s. 13 of the 1984 Act.

67. The applicant has in my view conflated the issue of jurisdiction and immunity. Whilst the District Court may have jurisdiction to enter into a consideration of any case which on its face appears to be within its jurisdiction, it has no discretion but to stop a prosecution upon the defendant raising a time limit by way of defence.

68. As noted by O’Sullivan J in POC ‘immunity’ is not defined in the 1965 Act. I do not agree with the submissions of the Applicant that for immunity to arise under s.18 of the Act, a prosecution must necessarily be void ab initio. The essence of immunity is that a person is, for some specific reason, exempt from some liability to which others are subject. Here the Respondent would in reality be exempt from liability in the circumstances outlined owing to the passage of time.

69. The use of the ‘immunity’ in s.18 must be interpreted in the overall context of the 1965 Act. Unlike the position in many other States, a person can only become exempt from criminal liability due to the passage of time in Ireland where a limitation period for prosecution has passed and, in accordance with the case law cited by the Applicant including Mangan v Duff, where such limitation period is invoked by a defendant.

This is the mechanism adopted in Irish law to give effect to a person becoming exempt from liability owing to the passage of time.

70. To accept the argument raised by the Attorney General in this regard would in effect render s.18 (insofar as it applies to a prohibition on surrender where exemption from prosecution and punishment would be available to a defendant if prosecuted in Ireland in similar circumstances) of no effect. The intention of s.18 was to prohibit extradition where a person would, owing to the passage of time, be exempt from criminal liability for his actions in either State. The legislature cannot have intended s.18 to have no effect where it a person would, if prosecuted in Ireland in the same circumstances, in reality be exempt from liability from prosecution or punishment. This is a further reason to reject the interpretation contended for by the applicant.

71. For these reasons, I accept the arguments raised by the Respondent and conclude that his surrender is prohibited on the facts of this case pursuant to s.18 of the 1965 Act.