High Court refuses surrender under TCAW due to disproportionate impact on established family life.

THE HIGH COURT

BETWEEN

[2025] IEHC 755

Record No 2024 /180 EXT

MINISTER FOR JUSTICE

APPLICANT

AND

PAUL LOMAS

RESPONDENT

JUDGMENT of Mr. Justice Patrick McGrath delivered on the 19 December 2025

1. The applicant seeks an order for the surrender of the respondent to the United Kingdom on foot of one Trade and Co-Operation Agreement Warrants (‘TCAW’), dated the 6 August 2024.

2. On the 4 September 2024, the warrant was endorsed and, following his arrest, the Respondent was brought before this Court on the 11 November 2024. On the 19 November 2024 the Respondent was admitted to bail pending the outcome of these proceedings.

3. The surrender of the Respondent is sought in respect of six offences, five of which relate to conviction matters and one of which is an accusation matter.

The Accusation Matter

4. The Respondent is sought by the Northern Ireland authorities to face one charge of driving whilst disqualified. A domestic warrant for his arrest for this offence was issued by a District Judge in the Magistrates Court on the 6 August 2024. At part (e) of the TCAW it is stated that, having previously received a three-year disqualification from driving on the 14 June 2010, the Respondent was observed driving a car in Culmore, Derry on the 11 January 2011. He was thereafter charged on the 18 January 2011 and, having been granted bail in respect of this charge, failed to appear in Court and a bench warrant for his arrest was subsequently issued. Driving whilst disqualified is an offence contrary to Article 168A(1)(c) of the Road Traffic (Northern Ireland) Order, 1981.

The Conviction Matters

5. On the 14 June 2010, the Respondent was sentenced in the Crown Court in Northern Ireland in respect of five offences. He was sentenced in respect of three offences of assaulting a police officer and two offences of breach of a ‘Risk of an Interim Sexual Harm Order’. He received a total sentence of 6 months imprisonment, followed by 18 months on licence. At part (c) of the TCAW it is stated that the Respondent served the period of imprisonment and was thereafter released on licence on the 31 August 2011.

At part (e) of the Warrant these five offences are set out as follows:-

(i) On the 19 May 2009, in the County Court Division of Londonderry, being the subject of an Interim Risk of Sexual Harm Order, without reasonable excuse had associations with persons under 18 years of age without the approval of social services, an act he was prohibited from performing under the said Order, contrary to section 128 of the Sexual Offences Act, 2003.

(ii) On the 19 May 2009, in the County Court Division of Londonderry, being the subject of an Interim Risk of Sexual Harm Order, without reasonable excuse had in his possession a mobile phone, an act he was prohibited from performing under the said Order, contrary to section 128 of the Sexual Offences Act, 2003.

(iii) On the 19 May 2009, in the County Court Division of Londonderry, assaulted Ian Mc Cluskey, a constable in the execution of his duty, contrary to section 66(1) of the Police (Northern Ireland) Act, 1998.

(iv) On the 19 May 2009, in the County Court Division of Londonderry, assaulted Bill Newton, a constable in the execution of his duty, contrary to section 66(1)

of the Police (Northern Ireland) Act, 1998.

(v) On the 19 May 2009, in the County Court Division of Londonderry, assaulted Stephen Green, a constable in the execution of his duty, contrary to section 66(1)

of the Police (Northern Ireland) Act, 1998.

6. The following matters are not in dispute between the parties:-

(i) The Respondent is the person in respect of whom this TCAW has issued, and I am satisfied in relation to identity;

(ii) The TCAW was issued by a Judicial Authority in the Requesting State, namely District Judge George Conner, Belfast Magistrates Court;

(iii) The TCAW was properly endorsed by the High Court;

(iv) The Respondent was lawfully arrested under s. 13 of the 2003 Act on foot of the said TCAW and thereafter properly brought before the High Court;

(v) The High Court is not required to refuse surrender under ss. 22, 23 or 24 of the 2003 Act;

(vi) No issues arise under ss 39, 41, 42, 43, 44 or 46 of the 2003 Act.

7. As indicated in his Notice of Objection and Submissions, the Respondent objects to surrender on three grounds:-

(i) He submits that surrender must be refused as a number of the offences for which the composite sentence was imposed by the Crown Court are offences which do not correspond with any offence under Irish Law;

(ii) There is an impermissible lack of clarity in respect of the sentence to be served by the Respondent if surrender were ordered and there has therefore been a failure to comply with Section 11(1A) of the 2003 Act;

(iii) Having regard to all the circumstances of this case, including the Respondents connections to this State and the delay in issuing and executing this TCAW, his surrender would constitute a disproportionate interference with his private and family life, such that surrender is prohibited by s. 37 of the 2003 Act;

Background facts relevant to Points of Objection

8. On the 17 January 2025, in response to a request issued by this Court pursuant to s. 20 of the 2003 Act, seeking further information in relation to the offences of Breach of an Interim Risk of Sexual Harm Order contrary to s. 128 of the Sexual Offences Act 2003 (as set out above), the IJA indicated:

‘1. The Police may by complaint to a court of summary jurisdiction apply for a ‘risk of sexual harm order’(‘RSHO’) in respect of a person over 18 who resides or intends to reside in Northern Ireland and who has on at least two occasions engaged in sexual activity involving a child or in the presence of a child, caused a child to watch sexual activity or communicated sexually with a child (s. 123 of the Sexual Offences Act 2003). The order prohibits the defendant from doing anything described in the order for a fixed period (not less than 2 years) or until further order, and may be varied renewed or discharged

Breach of a RHSO or interim RHSO without reasonable excuse is an offence under section 128 of the Act. There is no requirement for any previous conviction, caution or finding – rather the application is made where the behaviour of a person has caused concern. An interim RHSO may be granted under section 126 if the court thinks it just, pending the full determination of the application. Applications may be made to discharge, vary or renew RHSOs in accordance with section 125. The application is civil in nature and a complaint is made in accordance with Part VIII of the Magistrates Court (NI) Order 1981 and the Magistrates Court (Sexual Offences Act 2003) Rules (NI) 2004. The making of a RHSO or interim RHSO may be appealed to the County Court (s.

127)’

9. The IJA also indicated the following:

a. The statutory provisions do not require a conviction for a sexual offence in order for an interim RHSO to be made;

b. There is no requirement for any previous conviction, caution or finding – the application may be made where the behaviour of a person has caused concern; c. Mr Lomas was charged with the offence of unlawful carnal knowledge of a girl under the age of 17 on the 7 August 2008;

d. Given the nature of the offence alleged, an application was made for a RHSO under the 2003 Act. On the 24 February 2009 an interim RHSO was granted by the Magistrates Court. Mr Lomas was present in Londonderry Magistrates Court and legally represented on that date; and e. On the 20 May 2009, the Respondent entered a guilty plea in respect of the five conviction matters for which surrender is sought, including the two offences of Breach of an Interim Risk of Sexual Harm Order contrary to s. 128 of the Sexual Offences Act, 2003.

10. In his affidavit sworn on the 6 December 2024, the Respondent confirms the above matters of fact as set out in the additional information provided by the IJA. He further states therein that he consented on a without prejudice basis to the making of the interim RHSO but it was indicated to the Court that the PSNI’s application or a full RHSO would be contested and a hearing date for such application was fixed for a date in August 2009. He further states that he pleaded guilty to the underlying offence of Unlawful Carnal Knowledge of a girl under the age of 17 and was thereafter sentenced at Derry Crown Court on the 30 June 2008 to a term of imprisonment of 12 months for this offence and also placed on the Northern Ireland sex offenders register for a period of 10 years.

11. Having served the custodial sentence of six months in respect of the five conviction matters set out in this TCAW, he lived between his mother’s home in County Donegal and his grandmother’s home in Strabane, County Tyrone. Sometime in 2011, he was arrested in this jurisdiction and was thereafter detained in Castlerea Prison serving sentences, in respect of offences committed in this State, until early 2012. He was therefore in custody in Castlerea Prison at the time when his licence was revoked in Northern Ireland on the 6 May 2011.

12. The Respondent states that he attended school in Strabane until the age of 16 and thereafter completed a three-year mechanics course in Omagh. He subsequently developed addiction difficulties which continued into his mid-twenties, during this time he was convicted of a number of offences and spent time in custody.

13. Following his release from custody in 2012, he says that he turned his life around. He has not taken any illegal drugs since. He returned to education and completed an Open University course in IT and thereafter worked with an IT company and in a hardware shop in Letterkenny. He also states:-

a. He has been living in Manorcunningham, County Donegal since 2012 with his wife and their two daughters aged 13 and 11;

b. They initially rented a house for six years but have resided in their current address for six years which he and his wife own and in respect of which they have a mortgage costing €420 per month;

c. His daughters both attend local schools;

d. His wife, works full time as a manager in a local childcare facility/playgroup e. His mother lives close by in County Donegal f. He has an extensive work history in County Donegal, which includes five years with an IT company and almost 5 years working in a hardware shop and he is presently trying to set up a business in property maintenance

14. The Respondent further states that the Northern Ireland authorities must have known of his whereabouts in this State for a long time prior to the issuance of this TCAW. In this regard, the Respondent refers to the following:-

(i) Whilst being prosecuted for the offence of driving whilst disqualified, his solicitor Mr Paddy McDaid informed both the PSNI and the Court that he was located in this jurisdiction;

(ii) Following his release from Castlerea Prison in 2012 he attended Letterkenny Garda Station and informed the Gardai that he had been made subject to the Northern Ireland sex offenders register in 2009. He thereafter attended Letterkenny Garda Station for the purpose of signing on in compliance with his obligation under the register and this continued until 2019, when these obligations ceased. He says that in circumstances where his obligations under the Northern Irish register were being managed by Gardai in Ireland, the Northern Ireland authorities must have been aware of his presence in Donegal;

(iii) In 2012 Tusla received a referral from Gardai on the basis that he had had a conviction for a sexual offence and thereafter did an assessment as to whether there was any risk to his children and concluded that no action was necessary.

This could only have come about if the Gardai were aware of his conviction in Northern Ireland for unlawful carnal knowledge and the details of the same. He says that it is therefore reasonable in the circumstances to suppose that there must have been some communication between the Northern Ireland authorities and the Gardai in relation to his conviction and sentence and his presence in this State.

15. There is therefore an unexplained delay of 13 years in issuing the TCAW. In that time the Respondent says that he has formed private and family life connections to this State and done so in circumstances where he was unaware that his licence had been revoked and believed the same had expired in 2012.

SUBMISSIONS OF RESPONDENT

Correspondence

16. The Respondent submits that, given that his surrender is sought on this TCAW for the purpose of prosecuting him for a single offence and enforcing a composite sentence imposed in respect of five separate offences. There is a requirement to prove correspondence in respect of all five offences underlying the composite sentence, which follows from Minister for Justice v Ferenca [2008] 4 I.R. 480.

17. Having referred to the well-established general principles for the assessment of correspondence as summarised by Denham J. in Minister for Justice v Dolny [2009] IESC 48, the Respondent goes on to address such an assessment when considering an offence which consists of the breach of a statutory or regulatory regime in the requesting state. The Respondent refers to the leading authority in this regard, namely the decision of the Supreme Court in Minister for Justice v Szall [2013] 1 I.R. 470. In delivering the Judgment of the Court in that case, Clarke J set out the principles to be applied in such circumstances by an Irish Court. He noted that an Irish offence which involves, as an important ingredient, reference to an Irish statutory scheme, cannot have a strictly equivalent offence in any other country, as the Irish statutory scheme will not apply in that other country even though that requesting country may have its own (and perhaps quite similar) statutory regime. He stated however that where compliance with or breach of an Irish statutory provision is an ingredient of an offence in this State, such offence is, at the level of principle capable of amounting to a corresponding offence for the purposes of s. 5 of the Act of 2003 provided that the relevant statutory provision or regime by reference to which the Irish offence is defined is ‘sufficiently similar’ to an equivalent regime in the requesting state by reference to which the offence in the requesting state is defined.

18. The Respondent submits that, insofar as the two offences under s. 128 of the Northern Ireland Sexual Offences Act 2003 are concerned, Part 3 of the Sex Offenders Act 2001 is the closest that Irish law gets to provide for anything akin to the interim risk of sexual harm order.

19. The Respondent submits that the Irish and Northern Irish statutory regimes cannot be deemed ‘sufficiently similar’, in the sense that that term is used by Clarke J in Szall, for the following reasons:-

(a) Under the law of this State, namely s. 16 of the Sex Offenders Act 2001, a sex offenders order can only be made where a person has been convicted of a sexual offence. Conversely, in Northern Ireland, a person can be the subject of an order on the basis that they are facing a pending charge even though he or she has not been convicted of any offence and retains the presumption of innocence;

(b) Under the law of this State, such an order can only be made where a person has finished a sentence that was imposed for a sexual offence. In Northern Ireland, an order can be made prior to conviction and the passing of any sentence;

(c) Under the law of this State, before any such order may be made, a person must have acted in a way such as to give reasonable grounds for believing such an order is necessary to protect the public from ‘serious harm’. This is defined restrictively as meaning ‘death or serious personal injury, whether physical or psychological’

(d) The law of this State restricts the conditions that can be imposed as part of a sex offenders order. The relevant statute provides that such an order shall contain only such prohibitions on a respondent doing a thing or things that the court considers necessary for the purpose of protecting the public from serious harm from him. It is not clear if any such limitation applies in the requesting state

(e) In Northern Ireland, it is possible to impose an ‘interim’ order on a person pending the determination of a charge. This is not possible in this jurisdiction.

20. Insofar as the prosecution charge in the TCAW is concerned, the Respondent claims that correspondence is not made out as, unlike the position under Irish Law, it is unclear whether the Respondent is alleged to have driven the vehicle in a location which would be considered a ‘public place’ ( one of the elements of the corresponding offence of Driving without a Licence contrary to s. 38 of the Road Traffic Act, 1961 in this jurisdiction ) or whether this is an essential ingredient of the offence for which surrender is sought in Northern Ireland.

Section 11 (1A) of the 2003 Act

21. The Respondent submits that there is an impermissible lack of clarity in the TCAW such that it does not meet the requirements of s. 11(1A) of the 2003 Act.

22. In this regard the Respondent claims that there is an impermissible lack of clarity as to the sentence he will face if surrendered for the offences of breaching the interim risk of sexual harm order and assaulting the PSNI constables. He says there is no certainty or clarity as to the actual time he will spend in custody as the Warrant states ‘300 is the maximum number of days the Requested Person could be required to serve upon his return to custody and it is within the power of the Parole Commissioners to release the Requested Person before he has served this period of imprisonment.’

Interference with Family Rights

23. Finally, the Respondent submits that, having regard to all the circumstances of the case including his connections to the State and the delays in issuing and executing this TCAW, his surrender would constitute a disproportionate interference with his right to respect of this private and family life, such that his surrender is prohibited pursuant to s.37 of the 2003 Act. In this regard he refers to the following factors:- a. The fact that he has lived openly in this jurisdiction for the last 12 years;

b. He has an established family life with his wife and their two children; and c. He and his family own a house, his daughters attend local schools and his mother lives in the jurisdiction. SUBMISSIONS OF APPLICANT

Correspondence

24. The Applicant agrees that Part 3 of the Sex Offenders Act, 2001 is where the closest corresponding regulatory offence might be found in Irish law.

25. The Minister submits that the key distinction between Irish Law and Northern Irish law is that in the requesting state an order similar to one that may be made under Part 3 of the 2001 Act may be made in Northern Ireland on an ‘interim’ basis. In Ireland under s. 16(2) such an order may only be imposed upon an individual who has been convicted of a sexual offence.

26. The Applicant submits that these distinctions are not of such significance to the issue of correspondence as is contended for by the Respondent for the following reasons: -

(i) The relevant case law demonstrates that an ‘exact copy and paste’ of a statutory scheme between the two jurisdictions is not required;

(ii) Both schemes clearly have as their purpose the need to protect the public from sexual offending;

(iii) There is no requirement that a restriction must take place by a similarly situated authority in each jurisdiction;

(iv) Whilst in Ireland a Sex Offender Order can only arise post-conviction, it is not an aspect of the sentencing process. Instead, it serves to limit the category of person against whom an order can be made;

(v) The imposition of civil orders in the general field of domestic, gender and sexual offences is permitted in Ireland notwithstanding the absence of a criminal conviction

Family Rights

27. The Applicant submits that it is well established that the threshold for refusing surrender on the basis of a violation of family rights is very high indeed. The Courts have recognised that it is inevitable that surrender will impact one’s family rights.

28. The Minister submits that the circumstances of this case come nowhere close to meeting the required threshold. Any interference with the respondent’s rights is proportionate and certainly not of a kind to justify refusal of surrender.

S. 11A of 2003 Act

29. The Respondent submits that the sentence imposed and that remaining to be served are clear from the terms of the TCAW. No issue arises to raise any concern as to noncompliance with the requirements of s. 11(1A) of the 2003 Act.

CORRESPONDENCE

Correspondence and Regulatory Offences

30. On the 19 May 2009, while the subject of an ‘Interim Risk of Sexual Harm Order’ the Respondent breached the terms of said order insofar as he had a mobile phone in his possession and associated with a person below the age of 18 without the approval of social services. The factual description of the breaches is set out as follows at Part (e):

‘On 24th February 2009 Londonderry Magistrates Court imposed an interim Risk of Sexual Harm Order on Paul Lomas (Lomas). The terms of the interim Risk of Sexual Harm Order (IRSHO) prohibited Lomas from association with any persons aged under 18 years, unless approved by Social Services. The terms of the IRSHO also prohibited Lomas from possessing a mobile phone. A copy of the IRSHO was served on Lomas on 24th February 2009.

At approximately 1625 hours on 19th May 2009 police observed Lomas driving a Vauxhall Astra car on Cornshell Fields, Londonderry. Police observed an adult female in the front passenger seat and 2 young children in the rear passenger seats. Police lost sight of the Vauxhall Astra vehicle for a brief period. Police then located the vehicle parked on Cornshell Fields. By this time the adult female was seated in the driver’s seat and Lomas could not be located. At approximately 2025 hours on 19th May 2009 police called to 107 Cornshell Fields. The female householder denied that Lomas was present at the property.

Police observed two young children present in the property. Police conducted a search of the property and found Lomas hiding under a bed in a bedroom.

Lomas was arrested. Following his arrest police observed Lomas remove a mobile phone from his pocket and throw it to the female householder’

31. The question of establishing correspondence is necessarily more complicated when considering an offence which consists of a breach of a regulatory or statutory regime.

Each state will have a regime which will provide for the prosecution and punishment of breaches of the same, but it is extremely unlikely that another state will criminalise the breach of that specific scheme or do so in precisely the same manner.

32. The leading authority on this issue is the decision of the Supreme Court in Minister for Justice v Szall [2013] 1 IR 470. In delivering the Judgment of the Court, Clarke J stated:

‘How then should one view an offence, which in Ireland is specified as occurring only by reference to non-compliance with an Irish statutory regime?

To interpret the requirement of correspondence in a way which would exclude the possibility of correspondence in cases where the relevant Irish offence was defined by reference to compliance with or breach of an Irish statutory regime and where the offence in the requesting state did not also make reference to the relevant Irish statutory scheme would, as a matter of reality, exclude from the ambit of correspondence any offences which come within the scope of what I have described as breach of regime cases.

It does not seem to me that such was the intention of the Oireachtas or, indeed, the Framework Decision. The proper approach is to regard and Irish regime case as amounting, for the purposes of correspondence and of s. 5 of the Act of 2003, to an offence where the act or omission concerned is defined by reference to a lawful regime rather than the specific Irish regime. Where, therefore, the offence specified in the relevant European arrest warrant involves the same acts or omissions by reference to a regime in the requesting state then, at least at the level of principle, correspondence can be established provided that there is a sufficient similarity between the respective regimes to justify the conclusion that the substance of the acts or omissions which amount to offences in the respective jurisdictions is the same even though the specific relevant regimes will necessarily be, as a matter of law, different, emanating as they will from the legal systems of the two separate jurisdictions Where, therefore, the court has to consider correspondence in such cases it seems to me that the question which the court must ask itself is as to whether the respective regimes meet that test. Are the two regimes, as a matter of substance, sufficiently similar that it can properly be said that the acts or omission which are rendered criminally unlawful by reference to those two regimes must in themselves be regarded as corresponding wrongdoing?’

33. As noted by Clarke J. in the final paragraph quoted from Szall above, the essential question the Court must consider in a case such as the present, where correspondence is sought to be established between what are described as different ‘regulatory regimes’ in the requesting and requested state, is whether the two regimes as a matter of substance are ‘sufficiently similar’ so that it can be properly said that the acts or omissions which are rendered criminally unlawful by reference to those two regimes can be regarded as corresponding wrongdoing.

34. There is no doubt that there are differences between the regime in operation in Northern Ireland and the one in this jurisdiction which is said to meet the Szall test. These have been comprehensively summarised in the submissions of the Respondent and are set out at paragraph 19 above.

35. For these reasons the Respondent submits that the regime in Northern Ireland, pursuant to which the IRHO was imposed, and which has led to the sentence for which surrender is now sought, is not ‘sufficiently similar’ to the comparator regime proposed for the purposes of correspondence here.

36. In my view the two key distinction between the Northern Irish regime and that in Ireland are:-

(i) An order similar to one that may be made under Part 3 of the 2001 Act in this jurisdiction, may be made in Northern Ireland on an interim basis whereas there is no provision for any interim order as a matter of Irish law; and

(ii) A person must have been convicted of a sexual offence in Ireland prior to the making of such an order, whereas there is no such requirement under Irish law.

37. I agree with the submission of the Minister that the distinctions between the two regimes, as highlighted on behalf of the Respondent, are not of such significance as contended. An ‘exact copy and paste’ of a statutory scheme between the two jurisdictions is not required. Nor is it required that a restriction must be imposed at the behest of a similarly situated authority in both jurisdictions.

38. Furthermore, the imposition of civil orders in the general field of domestic, gender and sexual offences is permitted in Ireland notwithstanding the absence of a criminal conviction.

39. In considering whether the regimes are sufficiently similar, it is in my view of no relevance that such an order can be imposed temporarily on an interim basis in Northern Ireland whereas here there is no provision for such an interim order. It is clear that such an order was made in this case when the Respondent was in attendance and furthermore it only operates temporarily pending the hearing of an application for a full order, at which point the Respondent is again entitled to be heard by the Court.

40. It is clear that both schemes clearly have as their purpose the need to protect the public from sexual offending. As pointed out by the Minister, whilst in Ireland a Sex Offender Order can only arise post-conviction, it is not an aspect of the sentencing process.

Instead, it serves to limit the category of person against whom an order can be made.

41. I am therefore of the view that the two regimes are ‘sufficiently similar’ in the sense explained by Clarke J in Szall and that correspondence can be made out between the offences wherein the Respondent was convicted of offences which constituted breaches of the Interim Order.

42. The Respondent further submits that correspondence is not established between the offence of Driving whilst Disqualified contrary to Article 168A(1)(c) of the Road Traffic (Northern Ireland) Order, 1981 and an offence contrary to Irish law.

43. The Respondent submits that, whilst it might be ‘tempting’ to conclude that the offence in Northern Ireland corresponds with an offence contrary to s. 38 of the Road Traffic Act, 1961 (as amended), this would overlook that a central element of such an offence is that it is committed in a ‘public place’. The Respondent says that it is not clear from the terms of the TCAW itself whether the allegation is that he drove in a public place or indeed whether this was an essential ingredient of the offence charged in Northern Ireland.

44. I am in agreement with the submissions of the Applicant on this issue. The factual circumstances of the offence charged in Northern Ireland is that the Respondent is alleged to have gotten into a car in the carpark of a public house and then observed driving the car ‘onto Culmore Point Road’. It is clear therefore that the offending alleged took place in a public place.

45. The decisions of both Burns J in Minister for Justice v Gabor [2021] IEHC 698 and Peart J in Minister for Justice v Anderson [2006[ IEHC 95, both make clear that the essence of the corresponding offence in Irish law, namely that of Driving without a licence contrary to s.38 of the Road Traffic Act, 1961, is driving in the absence of a driving licence.

46. I am therefore also satisfied that correspondence had been established between the offence alleged in Northern Ireland and an offence contrary to s.38 of the Road Traffic Act, 1961 (as amended).

SECTION 11(1A) 2003 ACT

47. I agree with the submission made by the Minister in this regard. The sentence imposed and that remaining to be served are clear from the terms of the TCAW.

48. No issue arises to raise any concern as to non-compliance with the requirements of s.

11(1A) of the 2003 Act.

ARTICLE 8 FAMILY AND PERSONAL RIGHTS

49. It is settled law that delay of itself does not amount to a reason to refuse surrender. The lapse of time between the alleged crime and surrender does not dilute the significant public interest in ordering surrender.

50. When, as here, a complaint of delay is married to an objection under Article 8 of the Convention, the jurisprudence is clear that evidence of truly exceptional circumstances must exist before surrender could amount to a breach of Article 8 rights such as to justify a refusal to surrender.

51. A disruption to the personal and family life of the respondent is an inherent aspect of the criminal process and extradition system. It is only where interference with the personal and family life of the requested is truly exceptional that the refusal of surrender could be justified.

52. The decision of the Supreme Court in Minister for Justice v Palonka [2022] IESC 6, following a line of authority including cases such as Minister for Justice v Ostrowski [2012] IESC 57 and Minister for Justice v Verstaras [2020] IESC 12, re-iterated that to successfully object in cases such as the present, where a family/ private rights objection to surrender is raised, the circumstances must be truly exceptional. There must, when considering such objections to surrender, in order to rebut the presumption in s. 4A of the Act, be cogent evidence to show the circumstance to be well outside the norm, that is truly exceptional and, in the words of s. 37 of the 2003 Act they must be such as to render surrender incompatible with the States obligations under Article 8(2) of the Convention.

53. In Palonka, the Court again stated that delay per se can never be a ground for refusal of surrender but there may be exceptional circumstances where, as a result of passage of time and / or other factors, issues may develop in the individual’s personal or family circumstances such as to engage Article 8 of the Convention and result in a Court finding that it would now be disproportionate to order surrender.

54. The following are the principles of particular significance to the objection made pursuant to Article 8 of the Convention on the facts in this case:- a. There is a strong public interest in the surrender of persons accused or convicted of criminal offences to countries with which this State has extradition or surrender agreements;

b. Delay in itself cannot ever operate as a bar to surrender. A person can have no legitimate expectation that he or she will avoid surrender under extradition or surrender arrangements because of the passage of time arising from a lack of resources or inefficiency on the part of the requesting state;

c. Disruption, indeed, significant disruption, of family and private life is the norm where surrender is ordered, and this cannot ordinarily justify a refusal to surrender on foot of an otherwise lawful request;

d. Where the evidence shows a real, exceptional and oppressive disruption to family life in the most extreme and exceptional circumstances, delay may enable the growth of circumstances where a new situation has emerged that engages Article 8 of the European Convention;

e. The ultimate question in a case such as this is whether this is one of those truly exceptional cases (though of course exceptionality is not the test) where, due to the emergence of particular family or personal circumstances in the time since the alleged offences, Article 8 of the Convention is engaged, and it would be disproportionate to order surrender in the particular circumstances of this case .

55. The offences for which surrender is sought, though not minor, are not of the most serious in nature. These offences in question date back a considerable time, over 16 years ago for the conviction offences and almost 15 years for the alleged driving offence. They were committed or alleged to have been committed when the Respondent was a relatively young man.

56. The Respondent has served the custodial portion of the sentence imposed in respect of the five conviction offences and was released therefrom on the 31 August 2010.

Following his release on licence, he complied fully with his obligations under the Sex Offenders Register and signed on as required at Letterkenny Garda Station until this requirement ceased in 2019.

57. In the intervening years, he has turned his life around. The offending in respect of which he is now sought occurred at a time in his late teens and early twenties when he developed addiction difficulties. Following release from a sentence in this jurisdiction, imposed for an offence prior to the convictions in issue here:-

(i) He has established a family life with his partner (now wife) and is the father of two girls aged 13 and 11;

(ii) He is now, together with his wife, the owner of their family home in Donegal upon which they pay a mortgage of €420 per month;

(iii) They are both involved in their local community and his wife works full time as a manager in a childcare facility/ playgroup in the locality;

(iv) His mother also lives close by in Donegal;

(v) He has a strong work history, having returned to education in the IT sector and worked in retail and IT over the years;

(vi) He appears to be free of all addiction since release from his Irish sentence in 2012.

58. I accept, as submitted on behalf of the Respondent, that this is a case where the Respondent was living openly and visibly in the State in the intervening years and his whereabouts must have been, or at the very least ought to have been, known to the authorities in the issuing state. I say this in circumstances where the management of his obligations, arising from his convictions in Northern Ireland, under the Sex Offenders Register were done by Gardai in Donegal who must have liaised with the Northern Ireland authorities. Furthermore, he was the subject of assessment by Tusla in 2010 following his referral by Gardai as a sexual offender. An assessment was done to see if he presented any risk to children, and it is reasonable to assume that there must have been some contact with the Northern Ireland authorities when this work was being done.

59. The Respondent furthermore believes that his solicitor, Paddy McDaid, informed the PSNI and the Court in 2011 when this matter was listed in Court in Northern Ireland that he was located in this jurisdiction.

60. This is a finely balanced case. The Respondent has served the custodial part of his sentence in respect of the conviction offences and was released from custody thereon in 2010. The licence revocation arises from the allegation of Driving whilst Disqualified which, in the canon of offences, is relatively minor. No explanation is offered for the delay in seeking his return in relation to these matters and in the meantime, he has turned his life around.

61. In my opinion, due to the passage of time in this case, exceptional family circumstances have developed, such as to engage Article 8 of the Convention. Bearing in mind the nature of the offences and sentence for which his surrender is now sought and the passage of time, this is a case where I conclude it would, given the development of those family circumstances in the intervening time, be disproportionate to order his surrender on foot of this TCAW.