Supreme Court allows surrender despite exceptional delay and family impact, ruling abuse of process not established.

THE SUPREME COURT

Appeal No. 294/2014

Denham C.J.

O’Donnell J.

MacMenamin J.

Laffoy J.

Between

Minister for Justice and Equality

Applicant/Respondent

and

J.A.T. No. 2

Respondent/Appellant

Judgment of O’Donnell J delivered on the 28th day of April 2016

1 I gratefully adopt the facts set out in the judgment delivered by the Chief Justice today and will not repeat them here. I recognise

that all of the factors identified by the Chief Justice are matters which must evoke concern, dissatisfaction and some degree of

sympathy. These are, unfortunately, emotions which are not infrequently encountered in these courts. Persons accused of crime may

often themselves come from circumstances, or have suffered experiences, which can excite sympathy. The criminal process,

particularly involving cooperation between jurisdictions, can be frustratingly inefficient, slow, and opaque. I was myself doubtful,

however, that even cumulatively, the matters relied on by the appellant were sufficient to justify a refusal of surrender in this case.

But in the light of the views of my colleagues, and the judgment of the Chief Justice, I do not dissent from the Order proposed. I

would, however, emphasise that this is a rare, and indeed exceptional case. While exceptionality is not in itself a test, it can be a

useful description, and it is, in my view, only cases which can truly be so described that will be those rare cases in which it may be

said that surrender would offend due process and interfere with the rights of the appellant to such an extent that it must be refused.

It is, however, necessary to explain both the factors that apply and the weight to be given to them which lead to that conclusion. I

do not think that we should take refuge in the observation that all cases depend on their own facts; that would mean that, in theory,

all cases raising any arguable issues would have to be the subject of appeal, with all the delay, inconsistency and unpredictability

that entails. While little assistance is to be obtained from the submissions in this case, I do think that this Court can, and should,

identify the principles involved, even if at the margin, courts and judges may on occasion differ as to the outcome of the application

of those principles.

2 While this case is multi-factorial, it is likely that in the future, some or more of the components identified in the case will be present

and relied on, perhaps together with other factors, as justifying a refusal to surrender. It is necessary to keep in mind that the

Framework Decision is meant to facilitate a speedy process, and unless grounds for refusal are specified with clarity, and the weight

accorded to them is identified, the process can become frustrated by a proliferation of claims to resist or delay surrender on

amorphous allegations requiring close analysis of the facts. It would be foolish not to recognise that there may be circumstances

where the fact that an argument can be raised, even if the prospects of success are remote, may be enough for an applicant with his

or her own reason to seek delay. By the same token, it is important to recognise that delay is contrary to the underlying objective of

the Framework Decision, which is to seek speedy surrender between Member States. It is noteworthy that in the immediate aftermath

of the decision of the United Kingdom in HH v. Deputy Prosecutor of the Italian Republic, Genoa [2012] U.K.S.C. 25, [2013] 1 A.C. 338

referred to by the Chief Justice, there was an immediate and significant increase in claims seeking to resist surrender on the grounds

that such surrender would breach the rights guaranteed to an individual and his or her family members by Article 8 of the European

Convention on Human Rights and Fundamental Freedoms. It was estimated in a recent case that in the United Kingdom, Article 8 was

relied on in more than 120 cases per month. As a result, the Divisional Court of England and Wales sought to establish a more

structured and rigorous approach to such claims (see Polish Judicial Authority v. Celinski [2015] E.W.H.C. 1274). It is not, perhaps,

appropriate to address such matters in any further detail here, since they were not the subject of argument, but I do consider it

desirable to explain with some precision the view I take of the components relied on in this case.

3 In the interests of clarity in future cases, I respectfully suggest that phrases such as “de facto abuse” or “harassment and

oppression”, if they are to be invoked in argument, require greater refinement and precision. Something is either an abuse of process,

or it is not. Harassment and oppression are concepts drawn from the case law derived from Henderson v. Henderson (1843) 3 Hare

100, 67 E.R. 313, and their use risks blurring two strands of case law that deserve to be distinguished. I also, respectfully, doubt that

it is appropriate or useful to introduce a concept of “duty of care” on the part of requesting authorities or the Irish authorities. If a

warrant is defective, that is enough, and it is superfluous at best, and possibly misleading at worst, to address the question of the

care used or the reason for the defect. But the idea that a duty of care is owed to subjects of a warrant might give rise to a

deflection of attention from the warrant to the efficiency of the requesting or executing authorities. It is important that courts should

be astute to detect and prevent improper or mala fide conduct, but it is equally important that a valuable jurisdiction is not diluted by

allowing the legal test to spread into negligence and to become the familiar search for something that can be described as careless.

Furthermore, caution should be exercised in addressing the law of European Arrest Warrants in the light of law surrounding previous

bilateral or even multilateral extradition treaties. The Framework Decision, with all of its many difficulties, is a matter of the law of the

European Union, and was intended to provide a new and streamlined process for surrender between member states of the Union, and

to that extent represented a significant departure from the earlier approach. While the legal background to a provision is important, it

is also necessary to recognise that the purpose of any new provision is to effect a change, sometimes radical, from the existing law,

and it is necessary to give full effect to that change once identified.

4 An important starting point, in my view, is that considerable weight is to be given to the public interest in ensuring that persons

charged with offences face trial. There is a constant and weighty interest in surrender under an EAW and extradition under a bilateral

or multilateral treaty. People accused of crimes should be brought to trial. That is a fundamental component of the administration of

justice in a domestic setting, and the conclusion of an extradition agreement or the binding provisions of the law of the European

Union means that there is a corresponding public interest in ensuring that persons accused of crimes, in other member states or in

states with whom Ireland has entered into an extradition agreement, are brought to trial also. There is an important and weighty

interest in ensuring that Ireland honours its treaty obligations, and if anything, a greater interest and value in ensuring performance of

those obligations entailed by membership of the European Union. All agreements are based on broad reciprocity and there is,

therefore, a further interest and benefit in securing the return to Ireland for trial of persons accused of crimes, or the return of

sentenced offenders. There is also a corresponding public interest in avoiding one country becoming, even involuntarily, a haven for

persons seeking to evade trial in other countries. There is no option in this jurisdiction for a court, in most cases, to direct a trial of

the offence here (whatever the practical difficulties involved). This means that the decision to refuse to surrender in individual cases

will provide a form of limited immunity to a person so long as they remain in this jurisdiction. The question is, therefore, not where a

person should be tried, but whether they should be tried at all so long as they remain in Ireland. There is, therefore, a closer analogy

in this regard to be drawn between the analysis of claims involved in domestic criminal proceedings and surrender/extradition than

there is between surrender and deportation, for example. Trial and, if appropriate, sentence in this jurisdiction may always involve an

interference with family and other relationships, and it is necessary, therefore, to assess the additional interference occasioned by

trial abroad in circumstances where it may also be appropriate to take account of the fact that arrangements exist to facilitate

prisoners who wish to serve their sentences in their home state. I think it is fair to say that it is only if some quite compelling feature,

or combination of features, is present that it would be appropriate to refuse surrender on grounds of due process or interference with

rights. It is important that courts should also rigorously scrutinise the factual basis for any such claims against that background.

5 Here, three factors are asserted as cumulatively leading to an order refusing surrender.

6 The first factor is the undoubted fact that the first warrant was found to be defective by order of this Court, and this is a repeat

application. It is important, in my view, to maintain, however, the clear distinction between the principles of res judicata and the

closely associated principles established in Henderson v. Henderson and A.A. v. The Medical Council [2003] 4 I.R. 302, on the one

hand, and the law relating to warrants on the other. Henderson v Henderson deals with the question of a full inter partes hearing of

civil proceedings under a process designed to ensure that the true issues between the parties are identified (if necessary by

amendment of pleadings) and determined. The position in relation to warrants is fundamentally different. Importantly, there is no

process of amendment. The issue is the validity of the warrant as issued. Strictly speaking, when a fresh warrant is issued, its validity

becomes a separate issue. It is not res judicata because the issue under the new warrant has not been decided. Technically (and

this is a technical issue) the issue now is the validity of the new warrant. Nor is it appropriate to try to apply the concepts of bringing

all claims at the same time. In the case of warrants, that would amount to saying that only one warrant could ever be issued. For

these reasons and more, it has always been held that the fact that an initial warrant has been found to be defective does not

preclude the issuance of a further warrant. (See ex tempore judgment of Denham J. in Bolger v. O’Toole (Unreported, Supreme Court,

2nd December, 2002) and ex tempore judgment of Keane C.J. in Attorney General v.Gibson, (Unreported, Supreme Court, 10th of

June, 2004). Indeed, it could be said that this is part and parcel of the law which also requires that warrants should be scrutinised

with rigour. For my part, therefore, I do not think that concepts such as oppression and harassment by repeated application, which

employs part of the language used in Henderson v. Henderson, should be used in dealing with warrant issues. There may be

circumstances in which the repeated issuance of warrants may be prohibited, either because of bad faith, the seeking of tactical

advantage, or otherwise. It may also be appropriate to consider the impact on an individual of repeated applications. But those

situations require to be analysed in the context of the law relating to warrants, and not of some hybrid version incorporating the

principle in Henderson v. Henderson.

7 Counsel in this case argued strongly that an important feature of this case was that there was a duty on the part of the authorities

of both the requesting and executing states to explain how it was that the error had occurred in relation to the first warrant. It was,

he contended, insufficient merely to issue a further warrant which was said to have addressed the defects identified in this case in

Minister for Justice, Equality and Law Reform v. J.A.T.( No. 1) [2010] I.E.S.C. 61. I am wholly unconvinced by this contention. If

explanation was ever required, it was more naturally required in the context of the proceedings in which the error was identified. It

would, I think, border on the perverse to refuse surrender now on foot of what is ex hypothesi a perfectly valid warrant because the

authorities had not given a more elaborate explanation of an error made in an earlier warrant, which itself had been found to be

defective by a final decision of this Court (at least when there is no suggestion of bad faith or concealment calling for explanation)

particularly when, until now, it had never been suggested that such an explanation was a necessary condition of the execution of a

second warrant. In any event, there is little mystery about the events here. An error was made in dealing with a relatively complex

area of law, both in itself and in relation to the operation of the European Arrest Warrant system, and both the substantive and

procedural law of Ireland. That misunderstanding was corrected, albeit at some cost in terms of expense and time. But if this Court

was to hold that surrender should not be made on foot of the second warrant because the error in the first warrant had not been

sufficiently explained to the Court’s satisfaction, it would be coming close to the proposition that a second warrant could not be

issued, or could only be issued and executed at the discretion of the second court.

8 I am prepared to accept, for the purposes of this argument, that there are circumstances where a second or subsequent warrant

may be issued for tactical reasons which may accordingly amount to an abuse of process. Certainly, obiter dicta in Turin v Barone

[2010] E.W.H.C. 3004 might support this approach. I also accept that while abuse of process normally involves an improper motive

(and certainly can be more readily identified when that is present) it is not necessarily confined to such circumstances. It may be

that a situation can be arrived at in an individual case, perhaps without culpability and certainly without improper motive, but where it

can nevertheless be said that to permit proceedings to continue would be an abuse of the Court’s process in the sense that it would

no longer be the administration of justice. I also do not rule out the possibility that there may be a case where the facts are so

extraordinary that they call for explanation. However, in the present context, it must be kept in mind that the issue for an Irish court,

in respect of which it is required to administer justice, relates principally to the surrender, and it is the process in relation to that

which must be the primary focus of any such inquiry. I would not, therefore, have considered that the issuance of a second warrant

in this case amounts to, or even comes close to being an abuse of the process. I do not think that if the second warrant had been

issued reasonably promptly, and in relation to a person of full health, and with less forceful claims under Article 8, that it would be

considered that the issuance of a second warrant after refusal of surrender on an earlier warrant would, by itself, be a ground for

refusal of surrender.

Delay and Lapse of Time

9 The fact that the crimes alleged here date back to 1997 is more properly to be considered in the context of lapse of time rather

than delay. There is, as I understand it, no suggestion that the United Kingdom authorities ought to have detected the alleged crime

any earlier. In any event, such an allegation is one which a court should be extremely slow to entertain. The relative antiquity of the

offences, however, is relevant in considering those elements of delay in the issuance of the first warrant, and more importantly, the

second warrant, and its execution in this jurisdiction. I do think that these delays are factors in the Court’s assessment, but,

regrettable and worthy of criticism as they are, in my view they fall far short, by themselves, of establishing any abuse of process or

grounds for refusal of surrender. Nor do they do so when taken in conjunction with the fact that a second warrant was issued.

Article 8

10 It seems clear that the respondent is in a very difficult health situation, although the Court might expect a more detailed expert

report. Again, however, this matter must not be tested against some generalised consideration of personal sympathy, but rather as to

whether the circumstances are such which render it unjust to surrender the respondent. It will almost always be the case that

considerations such as these, which undoubtedly evoke some sympathy, would never, in themselves, be remotely a ground for

refusing surrender any more than they would be a ground for prohibiting a trial in this jurisdiction. The respondent, however, is also

the primary, and effectively the sole caregiver for his son, who in turn is in a situation where that care is particularly important. For

the reasons set out in the judgment of the Chief Justice, it seems clear that he will undoubtedly suffer very severely if the appellant

is surrendered for trial. He is not a person against whom there is any accusation of wrongdoing. The impact on the appellant’s son is,

for me, an important consideration. While the appellant’s son is not a child, he is, in my view, a member of the appellant’s family for

the purposes both of Article 8 of the ECHR and the Constitution. Nevertheless, I agree with the learned trial judge in this case that

these considerations would, themselves, not be enough to establish a ground for refusing surrender if the first warrant had been in a

proper form and these matters, which were present at that time, had been the sole ground for resisting surrender. I do not, however,

agree that the fact that neither the respondent’s health issues nor his son’s condition has deteriorated in the intervening time means

that this consideration is now irrelevant. It seems to me to be relevant that this is a second application, and moreover, that there

has been avoidable delay on the part of the authorities in both jurisdictions in the preparation, submission, and execution of the

second warrant, even though the evidence of the respondent's circumstances, and those of his son, had been adduced in the first

European Arrest Warrant proceedings. These factors - repeat application, lapse of time, delay, impact on the appellant’s son, and

knowledge on the part of the requesting and executing authorities of those factors - when weighed cumulatively, are powerful. Even

then, and without undervaluing the offences alleged here, it is open to doubt that these matters would be sufficient to prevent

surrender for very serious crimes of violence. This illustrates that the decision in this case is exceptional, and even then close to the

margin.

11 In any future case, where all or any of the above factors may be relied on, it would not, in my view, be necessary to carry out

any elaborate factual analysis or weighing of matters unless it is clear that the facts come at least close to a case which can be said

to be truly exceptional in its features. Even in such cases, which must be rare, it is important that the considerations raised are

scrutinised rigorously.

12 Finally, I also agree that the real issue in this case is whether an abuse of process has been established. Where a true abuse of

process is established, I think it would normally follow as a matter of logic that the proceedings should not be further entertained and

should normally be struck out. There may be cases where the abuse itself is one capable of remedy, and where a locus poenitentiae

might be permitted to allow the defect to be cured. But the normal and logical remedy for an abuse of process is the striking out or

staying of the proceedings constituting abuse. Insomuch, however, as there is expansion of the concept of abuse of the process, and

less reprehensible conduct is included under that heading, it may be understandable that there would be inevitable tendency to

broaden the corresponding remedies to accommodate and respond to the different levels of conduct constituting abuse of process.

That is, perhaps, a reason to ensure that the concept of abuse of process is not extended unduly, and its essential strength diluted.

If it is considered that matters can properly be addressed by admonishment, then it is open to doubt that the conduct amounts to an

abuse, de facto or otherwise, at all.