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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Minister for Justice v Mc Nicholl (Approved) [2025] IEHC 166 (20 March 2025) URL: http://www.bailii.org/ie/cases/IEHC/2025/2025_IEHC_166.html Cite as: [2025] IEHC 166 |
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THE HIGH COURT
[2025] IEHC 166
BETWEEN Record No 2024 EXT 109
MINISTER FOR JUSTICE
APPLICANT
v.
JOHN EDWARD ANTHONY MC NICHOLL
RESPONDENT
JUDGMENT of Mr. Justice Patrick McGrath delivered on the 20 March 2025
1. In this application, the applicant seeks an order for the surrender of the respondent to Northern Ireland on foot of one Trade and Co-Operation Agreement warrant ('TCAW').
2. This warrant was issued on the 26 April 2024 by District Judge George Connor at Laganside Magistrates Court, Belfast and seeks the surrender of the Respondent for prosecution in relation to the following offences:
a. The Murder of Robert John McPherson, on the 26 July 1975, contrary to Common Law;
b. The Murder of William Robert Elliott, on the 26 July 1975, contrary to Common Law;
c. The Possession, on the 16 February 1976, at Brockaghboy, Garvagh of explosive substances, with intent to endanger life or cause serious injury to property or enable another to do the same, contrary to Section 3(1)(b) of the Explosive Substances, Act 1883
d. The Possession, on the 16 February 1976, at Brockaghboy, Garvagh of explosive substances, under such circumstances as to give rise to a reasonable suspicion he did not have them for a lawful object, contrary to Section 4(1) of the Explosive Substances, Act 1883
e. The Possession, on the 16 February 1976, at Brockaghboy, Garvagh of firearms and ammunition, with intent to endanger life or cause serious injury to property or enable another to do the same, contrary to Section 14 of the Firearms Act (Northern Ireland), 1969
f. The Possession, on the 16 February 1976, at Brockaghboy, Garvagh of firearms and ammunition, under circumstances such as to give rise to a reasonable suspicion he did not them for a lawful object, contrary to Section 19A of the Firearms Act (Northern Ireland), 1969
3. Additional information having been received from the issuing judicial authority ('the IJA'), this TCAW was endorsed by the High Court on the 29 May 2024. The Respondent was arrested on the 24 June 2024 and produced to the High Court on that date. He has been remanded in bail on this matter since that date, pending the outcome of these proceedings.
4. The warrant was issued by a 'judicial authority' in the issuing state within the meaning of s. 10 of the European Arrest Warrant Act, 2003 (as amended) ['the 2003 Act'].
5. I am satisfied that set out in the Warrant are the necessary details required under Section 11A of the 2003 Act.
6. I am satisfied that the person before the court, the Respondent, is the person in respect of whom this TCAW was issued. No issue is taken in relation to identity.
7. The minimum gravity requirement under the 2003 Act is met.
8. I am satisfied that none of the matters referred to in sections 22, 23 and 24 of the 2003 Act, arise for consideration in this application and surrender of the respondent is not precluded for any of the reasons set forth therein.
CORRESPONDENCE
9. It is not in dispute that this is a case where it is necessary to establish correspondence in accordance with ss 5 and 38 of the 2003 Act.
10. No issue is raised by the Respondent in relation to correspondence. The TCAW is a Warrant issued in accordance with Article LAW.SURR.112 of the Trade and Co-Operation Agreement. It is therefore necessary to demonstrate correspondence in accordance with s. 38 of the 2003 Act. Section 5 of the 2003 Act provides:-
'For the purposes of this Act, an offence specified in a European Arrest Warrant corresponds to an offence under the law of the state, where the act or omission that constitutes the offence so specified would, if committed in the State on the date on which the European arrest warrant is issued, constitute an offence under the law of the State'.
11. The relevant principles for showing correspondence are now well established. In assessing correspondence, the question is whether the acts or omissions that constitute the offence in the requesting state would, if carried out in this jurisdiction, amount to a criminal offence - Minister for Justice v Dolny [2009] IESC 48
12. I am satisfied that the acts or omissions that constitute the offences for which surrender is sought correspond to the following offences under Irish Law: -
a. Murder contrary to Common Law,
b. Attempted Murder contrary to Common Law;
c. Possession of Firearms/Ammunition with Intent contrary to S.27B Firearms Act 1964 as amended or Section 15 of the Firearms Act, 1925 (as amended);
d. Suspicious Possession of Firearms/Ammunition contrary to S27A of the Firearms Act 1964 (as amended)
e. Possession of Explosive Substances in Suspicious Circumstances contrary to S4(1) Explosives Act 1883
GROUNDS OF OBJECTION
13. The Respondent delivered Points of Objection on the 21 June 2024. At the hearing of this matter, the Respondent maintained the following points:
a. The application for surrender amounts to an abuse of the process of this Court;
b. The surrender of the Respondent would be contrary to s. 37 of the 2003 Act as it would be incompatible with his rights under Article 41 and 40.3.1 of the Constitution and Article 8 of the European Convention on Human Rights in the particular and unusual circumstances of this case;
c. His surrender would be contrary to s. 37 of the 2003 Act as incompatible with Article 38.1 of the Constitution and Articles 47 and 49 of the Charter of Fundamental Rights of the European Union, including the fundamental principle of legal certainty and legitimate expectation;
d. The delays and / or lapse of time in the issuing of this Warrant are cumulative factors which have resulted in the refusal of surrender being in the interests of justice
SECTION 20 REQUEST
14. Pursuant to s. 20 of the 2003 Act, this court sought further information from the requesting state. By letter dated the 1 July 2004, the following was sought:-
'The High Court respectfully requests additional information (and any relevant documentation) as follows:
1. Please provide full details of any knowledge the UK authorities had of the whereabouts of the requested person at any time between the date of his escape from custody on 5 May 1976 to the date of issue of the Trade and Cooperation Arrest Warrant on 26 April 2024;
2. Please provide full details of any decisions not to seek the requested person's extradition until 26 April 2024'
15. By letter dated the 17 July 2024 a reply was received. In that reply, which is the subject of much criticism by the Respondent, there are set out the details of the knowledge of the Northern Ireland authorities of the Respondents whereabouts over the years and a chronology of the various occasions over the years when consideration was given by the Northern Ireland authorities to seeking the extradition of the Respondent from this jurisdiction.
16. In the reply of the 17 July 2024, the IJA stated as follows:-
'On 5th May 1976 it was discovered that the requested person and others had escaped from custody at the Maze Prison.
An arrest warrant for the offence of escape from custody issued on 7th May 1976. It was believed that the requested person had likely travelled to the Republic of Ireland. The arrest warrant for the offence of escape from custody was sent to AGS on 8th May 1976.
The arrest warrant for the offence of escape from custody was returned to the RUC on 15th December 1977. RUC records indicate that a decision was made not to pursue McNicholl's extradition from the Republic of Ireland at that stage. That decision was taken because extradition had been refused in other, similar cases on the basis that the alleged offence (escape from custody) was political or connected to offences that were political in nature.
Records indicate that during September 1987 the Chief Constable of the RUC asked the Attorney General's Office and the Office of the Director of Public Prosecutions (DPP) to consider requesting the requested person's extradition from the Republic of Ireland. Records indicate that the matter remained under active consideration until February 1990, when a decision was taken not to request the requested person's extradition from the Republic of Ireland. That decision was taken because it was considered that a request would likely be refused.
During 1992 police became aware that the requested person was residing in the United States of America (USA). Between 1992 and 1994 consideration was given to requesting the requested persons extradition from the USA. On 10th February 1994, following a consultation with US authorities, a decision was taken by the DPP not to request the requested person's extradition from the USA. That decision was taken because it was considered such a request would not succeed.
Records indicate that in July 1994 the Chief Constable of the RUC wrote to the DPP requesting that the decision not to request extradition from the USA be reviewed. The DPP responded to the Chief Constable on the 5th August 1994 confirming that the matter had been reviewed and that an extradition request would not be made.
In June 1995 the FBI made the RUC aware that deportation proceedings had commenced in the USA.
During 1997 further consideration was given to requesting the requested person's extradition from the USA for the offences at 3-6 on the TCAW warrant. In correspondence to the Crown Office in Northern Ireland, the US Department of Justice opined that extradition proceedings would be 'a long, nasty, painful and ultimately fruitless effort'. A decision was taken not to request the requested person's extradition from the USA.
In 2001 the government established an administrative scheme to deal with the 'on the runs'. In the years that followed lists with names of individuals were provided to the PSNI, via the Northern Ireland Office, to review their wanted status. The PSNI set up an 'on the run' review team during 2001. Records confirm that incidents linked to the requested were first reviewed by the PSNI 'on the run' review team during 2001.
The requested person was deported from the USA to the Republic of Ireland on 18th July 2003.
Following the requested person's deportation from the USA to the Republic of Ireland, police requested that the DPP consider seeking the requested person's extradition from the Republic of Ireland. The DPP commenced a file review and concluded that the test for prosecution remained met for the offences detailed in the TCA warrant. Thereafter the DPP requested advice from the Crown Solicitor in Northern Ireland on the prospects of successfully extraditing the requested person from the Republic of Ireland.
Records confirm that during 2006 and 2007 further consideration was given to seeking the requested person's extradition from the Republic of Ireland. The DPP considered it appropriate to seek the requested person's extradition from the Republic of Ireland the Crown Solicitor in Northern Ireland was instructed to draft and apply for a European Arrest Warrant. Records for this period are incomplete and it is not known why an application European Arrest Warrant was not made at that stage.
Operation Rapid was a PSNI review team set up to review incidents linked to 'on the runs'. Operation Rapid replaced the PSNI 'on the run' review team. Records confirm that Operation Rapid conducted further reviews of incidents linked to the requested person between 2007 and 2009. Following that the PPS conducted a further file review between 2009 and 2011. The PPS concluded that the test for prosecution remained met for the offences detailed in the TCA warrant. Again, records for this period are incomplete and it is not known why an application for a European Arrest Warrant was not made at that stage.
Police have confirmed that the requested person has not been issued with a letter of comfort
In January 2019m the PSNI submitted a new file, in respect of all offences detailed in the TCA warrant, to the PPS. During 2019 and 2020 the PPS requested that police undertake further enquiries, including tracing witnesses to confirm their availability and recording additional statements. The work continued during 2021 and 2022. A decision was taken in 2023 that the test for prosecution remained met for the offences detailed in the TCA warrant.'
EVIDENCE OF RESPONDENT
17. An affidavit was filed by the Respondent on the 22 October 2024. In that affidavit he states that, following his deportation from the United States to Ireland in 2003, his case was 'all over the news' and then living openly in Donegal, he expected to be arrested at any time. The Respondent further says that having met with other Republicans at some unspecified date, he was assured that nobody was being arrested or surrendered any more. He stated that he met with the late Martin McGuinness who informed him that persons were handing themselves in in Northern Ireland and signing a piece of paper agreeing to keep the peace. He says that he did not do this due to uncertainty in relation to his own particular situation.
18. The Respondent then describes his work and family history in Ireland over the years following his deportation from the United States in 2003. Although he has missed out on significant family occasions due to his circumstances, he states that the living in uncertainty subsided over the years and his family finally settled down to living a normal life.
19. Mr McNicholl then goes on to describe various health difficulties he has had in the recent past. Following a number of episodes where he lost consciousness, he was finally fitted with a pacemaker in November 2023. He is now on medication and describes an ongoing loss of energy. The Respondent takes medications for type 2 diabetes and cholesterol, had a melanoma removed in Sligo Hospital and is awaiting surgery for his shoulder. He says that this extradition application has brought back night terrors and anxiety.
20. The Respondent describes missing out on both his parents' funerals, his son Sean's wedding and his son Conall's graduation. He worries about his wife and her ability to maintain herself and the possibility of losing the family home should he be surrendered.
SUBMISSIONS OF RESPONDENT
21. In the course of his submissions the Respondent refers to at least eight occasions when he says that the Northern Ireland authorities previously contemplated seeking his surrender. He further refers to the 'notable coincidence' of this TCAW, together with a clutch of other warrants being issued on the same date, the 26 April 2024, four days before an amnesty came into operation in Northern Ireland for such offences.
22. It is submitted that the exceptional history of this surrender application demonstrates that this application presents an unjust oppression of the elderly and infirm respondent and that this Court ought to refuse to surrender Mr McNicholl in the exercise of its abuse of process jurisdiction.
23. The Respondent says that abuse of the process of this Court is cumulatively established by:
a. The lapse of time from 1976 until the issue of this application in 2024;
b. The conscious conduct of the issuing judicial authority in bring about this delay; and
c. The elderly Respondents personal and family situation, including his ill health.
24. It is submitted that, following his escape from the Maze prison in 1976, the location of the Respondent was at all times known to the Northern Ireland authorities and he himself played no part in bringing about the delay of 49 years in seeking his surrender. Furthermore, it is said that the delay is all the more perplexing, given the rejection by the Supreme Court of the any type of blanket 'political offence' exception to extradition for IRA killings by the Supreme Court as long ago as in McGlinchey v Wren [1982] IR 154.
25. It is claimed that there is a 'surreptitious opaqueness' to the IJA's narrative of the history of correspondence with Ireland and the US in respect of his contemplated extradition.
26. The Respondent refers to the report of his G.P., Dr Murrough Birmingham of the 12 July 2024, wherein he is described as a '72 year old frail gentleman [who] suffers from serious mental and physical conditions and is chronically ill with them'. He has had the following diagnoses:-
a. PTSD with associated clinical anxiety;
b. Cardiovascular disorder with associated sudden collapses, dizziness and heart palpitations and he had had a pacemaker inserted in November 2023;
c. Severe, chronic shoulder injury;
d. Type 2 diabetes;
e. Hypercholesterolaemia;
f. Peptic ulcer disease;
g. Prostatic problem;
h. A historic cancerous melanoma.
27. He also has an unexceptional daily family life in Donegal with his wife built up over a long number of years.
28. Whilst it is accepted there is not and never could be a basis to argue that the offences here enjoy a 'political offence' exception, the Respondent submits that it would be absurd to suggest that the repeated conscious decisions not to formally apply for his surrender over the years did not have some politically expedient motivation. These circumstances and the fact that this application was made just prior to the coming into effect of the Legacy Act, 2023 in Northern Ireland also feed into the cumulative oppressive effect of this long-delayed extradition application.
29. The Respondent refers to the changed landscape in relation to the political offence exception over the years as evidenced by inter alia the Judgment of the Supreme Court in McGlinchey v Wren as far back as 1984. He says that there was certainly no conceivable basis for the issuing state not seeking surrender following the coming into force of the European Arrest Warrant Act, 2003. It is submitted that either a political decision was made not to seek the respondent' surrender or this delay was occasioned by incredible incompetence and an inference can be drawn that the decision not so seek his extradition earlier was political. A conscious decision must have been made not to seek his extradition before. The Respondent submits that it is utterly unjust that now aged 72 and because the political winds have changed, he is now unfortunate enough to be one of those persons pursued at this remove in time.
30. It is submitted that this application is utterly unjust, and this court is being asked to endorse this injustice. This litigation is oppressive and an abuse of process.
SUBMISSIONS OF THE APPLICANT
31. The Applicant submits that, contrary to the submission of the Respondent, an explanation and relatively detailed chronology has been provided for the delay in seeking his extradition. From the evidence it is clear that the authorities in the requesting state took the view, on several occasions, that an application for his extradition to stand trial for these matters would not at those various times succeed.
32. The Applicant claims that contrary to his apparent acceptance of the well settled principle that delay of itself cannot justify a refusal to surrender, he has in fact impermissibly rolled up the principles of delay and abuse of process.
33. The Applicant firstly commences with a consideration of the legal principles applicable to delay simpliciter in the context of surrender applications. The Minister submits that the core consideration in this regard is the wholly unsurprising assumption that there is a remedy available to a Respondent in the requesting state coupled with a need for a Respondent, when raising delay in objection to surrender, to show that the remedy available is deficient. The domestic courts will inevitably be in a better position to assess the significance and impact of delay on the criminal process in the requesting country.
34. The Applicant refers to the decision of Donnelly J in Minister for Justice v Downey [2019] IECA 119, where the period of delay was comparable to that in the present case. In the course of her Judgment, she referred to the seminal judgement of the Supreme Court in Minister for Justice v Stapleton [2008] 1 IR 669 which confirmed that where matters such as delay, or other issues which might impinge fair trial rights, are raised as objection to extradition, such matters should generally be dealt with in the courts of a requesting state. As to how courts should deal with the question of delay Donnelly J stated as follows in Downey:-
'The Respondent laid particular emphasis on the delay in the application for an EAW in this case. Delay of itself, was not so much urged by the respondent as a standalone ground, but as a ground that fits more easily into his claims of abuse of process and his right under Article 8 ECHR not to be surrendered
It is well established in this jurisdiction that the passage of time itself will not be sufficient to prohibit the surrender or a respondent. Delay must be tied to a breach of a constitutional or ECHR right before surrender will be prohibited. As part of a claim to a fair trial right, it is more correct to say that the requested person must demonstrate egregious circumstances, such as a breach in the system of justice in the issuing state, before delay will be a ground for prohibiting surrender. Delay and its consequences are more appropriately litigated at trial in the issuing state which is the state of trial.'
35. The Applicant submits that here, as in Downey, the Respondent is seeking to wrongly cloak what is essentially a delay argument (which can never be a standalone ground for refusal of surrender) in the contention that it amounts to an abuse of process.
36. The Applicant further submits that, for largely similar reasons, it is generally appropriate to leave over abuse of process arguments to the courts of the issuing state. He submits that, insofar as the Irish Courts may entertain abuse of process arguments in limited circumstances, this is essentially confined to the question of whether the current surrender proceedings amount to an abuse of the process of the Irish Courts and not the broader question of whether general delay may be considered as an abuse of the process of the courts of the issuing state.
37. The Minister submits that the Respondent has made no attempt to engage with the jurisprudence of the Irish Courts on the question of abuse of process in extradition cases and that the case he makes on abuse of process is little more than a confected argument, the sole object of which is to avoid the consequences of the well settled case law on delay. In this regard he points to the following:-
(i) There has been no prior application, and it cannot therefore be said that, unlike nearly all cases where this argument is made in surrender cases, these proceedings are an attempt to undermine or undo the result of previous proceedings;
(ii) There is no attempt to say that these proceedings somehow amount to an abuse of the process of the court in light of the principles as to the importance of finality of litigation as outlined in cases such as Henderson v Henderson [1843] 3 Hare 100, 67 ER 313 and applied in cases such as Vantive Holdings [2009] IESC 69 and AA v Medical Council [2003] 4 IR 302
(iii) At a level of principle, it is difficult therefore to see how, given there were no prior proceedings, a question of abuse of process can even arise here;
(iv) It is clear from the authorities that something truly exceptional is required before the Court will intervene on the grounds of abuse of process and, unlike for example the facts in JAT (No 2), there is nothing exceptional in this case which would justify the intervention of the court and the exercise of this exceptional jurisdiction
38. Although acknowledging that each case must be dealt with on its own facts, the Applicant instructively points to sixteen factors identified in JAT (no 2) [2016] IESC 17, which the court considered cumulatively when concluding that there had been an abuse of process, and says that, apart from ones which are statements of general principle, none apply here. By way of example he submits:-
(a) Whereas there had been a previous unsuccessful application in JAT (No 2) there was no such application here;
(b) In JAT (No2) the Court was of the view that failings in the first EAW should have been addressed in the first application and that clearly does not apply here;
(c) Although the Respondent here has some medical issues, he could not be described as a vulnerable person as in JAT (No 2);
(d) Unlike JAT (No2) no issue is raised here concerning the health or needs of another family member and nothing specific is raised here which is said to raise an exceptional feature such as to engage Article 8 rights;
(e) An explanation has been given for delay here unlike JAT (No 2) where no such explanation was given;
(f) Unlike JAT (No 2) there has been engagement by the issuing state here.
39. The Applicant submits that this is a classic example of a Respondent wrongly seeking to use the 'abuse of process' jurisdiction of this court as a place holder for delay. The delay in the prosecution of the Respondent is a matter he and his lawyers can legitimately raise before the domestic trial courts in Northern Ireland. That is the proper forum to litigate the issues of delay, its impact on the fairness of the trial of the applicant and any other questions such as, for example, any alleged abuse of process by the prosecution in seeking to now try the Respondent in respect of these serious allegations.
DECISION
40. The principles that apply to abuse of process cases in the area of Extradition have been considered in a considerable number of decisions of the Superior Courts.
41. In her Judgment in Minister for Justice and Equality v. J.A.T. No.2 [2016] IESC 17, a case that involved the issuing of two EAWs, Denham C.J. addressed abuse of process as follows:
'72. In general, if there is an abuse of process by authorities they should not benefit. The rule of law, and the right to fair procedures, requires that such a general principle be applied;
73. Of course, there may be circumstances where a court considers that there has been an abuse of process, but to a limited degree, and applying the principle of proportionality, a surrender procedure should proceed. However, such a finding would arise only in a situation where a process was found to be an abuse, but in a limited manner and with limited effect.
74. In this case there is an accumulation of factors.
75. It is clear, and remains the law, that simply because a second European arrest warrant is issued that does not of itself indicate any abuse of process. See Bolger v O'Toole, unreported, Supreme Court, 2nd December, 2002, and Gibson v Gibson, ex tempore, Supreme Court, 10th of June 2004, Keane C.J..
In analysing a case where there has been a finding of an abuse of process, the circumstances of each case are relevant and critical to the ultimate decision.
76. I have reviewed the circumstances of this appeal, which include the following factors:-
(a) this is the second EAW issued in relation to the offences alleged;
(b) failings in the first EAW could have been addressed in the first application;
(c) a considerable time has passed since the alleged offences and a considerable time has passed since the arrest of the appellant on the first EAW;
(d) the medical condition of the appellant, who is a vulnerable person;
(e) the medical condition of the appellant's son, for whom the appellant is a significant carer;
(f) the family circumstances;
(g) the oppressive effect which the two sets of EAW's have had on the appellant; on his son; and on his family;
(h) no explanation has been given for delays;
(i) there has been no engagement by the authorities with the issues as to the first EAW or the delays:
(j) the Central Authority has a duty to bring to the attention of the issuing State authorities defects or internal contradictions in a warrant, and to consider whether all the documentation is complete and clear, before being relied upon for the purpose of seeking to endorse an EAW;
(k) the duty of the Court to protect fair procedures; and
(l) the principle that a party in litigation should not benefit from proceedings which were de facto abusive of the Court's process."
42. Having set out these factors, Denham C.J. concluded:-
" 85. While no single factor, as set out above, governs this appeal, in circumstances where the High Court has found, correctly in my view, that there has been an abuse of process, I am satisfied that the factors, referred to in this judgment, taken cumulatively, are such that there should not be an order for surrender of the appellant."
43. It is furthermore clear that an abuse of process may arise without bad faith as stated by Hunt J. in Minister for Justice v. Bailey [2017] IEHC 482:
"Abuse of process can arise without any institution acting in bad faith. It may be caused, as it was in this case, by the cumulative effect of the circumstances of the case rendering an abuse of process on the individual concerned. These principles are all expressed in the judgment of Denham C.J. in Tobin (No. 2). 'Abuse of process' is described in the same case by Hardiman J. in characteristically vivid and eloquent terms. I can do no better than borrow his words. He described it at para. [313] as:- "a many headed concept whose manifestations range from the deliberate maintenance of legal proceeding without probable cause... to a ham fisted or unthought out conduct of litigation, particularly by making two or more actions where one would do, which tends to oppress the other party and to cause him expense and/or distress."
44. In Minister for Justice v Downey [2019] IECA 182 Peart J. emphasised the exceptional nature of the jurisdiction in this regard stating:
"[19.] It is clear from J.A.T (No. 2) that there can be circumstances which justify the High Court refusing an application for surrender on the basis of abuse of process. But it is equally clear firstly that such cases require some exceptional circumstance to justify such refusal, but, and critically, that the abuse asserted to exist must be of the processes of the High Court here dealing with the application for surrender, and therefore must relate to the application for surrender itself, and not to the prosecution of the offences which the respondent will face if he/she is surrendered. The different question whether there might be an abuse of process were the respondent put on trial for the offences for which surrender is sought is not a matter for determination in this jurisdiction on an application for surrender. Absent any suggestion that there is no possibility of a fair hearing of any application to have his trial on these offences stayed, and there has been no such suggestion made by the appellant, it is in my view clear that any such question of abuse of process will be a matter to be pursued by the appellant before the courts in the requesting jurisdiction."
45. In Minister for Justice and Equality v. Campbell [2020] IEHC 344, Donnelly J conducted a comprehensive review of the law on abuse of process insofar as it might apply to extradition and surrender cases. In Minister for Justice v Angel [2020] IEHC 699 Burns J helpfully summarised the principles as set out by Donnelly J in Campbell as follows:-
'(a) there is no bar to bring a fresh application to the Court for surrender
(b) there can be circumstances which justify or require the High Court refusing an application for surrender on the basis of abuse of process;
(c) a finding of an abuse of process should not be made lightly
(d) it is only where the case has exceptional circumstances that an abuse of process will be found (although exceptionality is not the test) and that the abuse of process is that of the High Court in this jurisdiction rather than a concern about an abuse of process to put the requested person on trial;
(e) there is broad public interest in bringing things to finality in one set of proceedings;
(f) there is a strong public interest in Ireland complying with its international obligations and surrendering individual in accordance with the relevant extradition provisions;
(g) a repeat application for surrender is not per se abusive of process. It would only be an abuse of process where to do so is unconscionable in all the circumstances;
(h) mala fides or an improper motive is not a necessary precondition for an abuse of process; and
(i) the Court should look to the cumulative factors which may make an application for surrender oppressive or unconscionable'
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46. The Respondent submits that, looking cumulatively at the circumstances in this case, the surrender of the Respondent would amount to an abuse of the process of this Court. The circumstances he relies upon in this regard are:-
(i) Lapse of time, being a period of 47 years between 1976 and the date of the issuance of this TCAW in 2024;
(ii) The conscious conduct of the IJA in bringing about this exceptional delay; and
(iii) The elderly Respondent's personal and family situation, including his ill health
47. Although the Respondent seemingly accepts that delay of itself is not a standalone ground for refusal of surrender, he does however heavily rely on the length of time that has passed since these alleged offences, and his family circumstances as have developed in those years, his current health issues as a 73 year old man and what he claims is the injustice of his being pursued at this remove in time where the authorities knew his location throughout that time and where there would appear to have been no good legal reason not to seek his surrender for at least the last 20 years since the coming into force of the European Arrest Warrant Act, 2003.
Delay and Article 8 Rights
48. The passage of time in this case since the alleged offences, no matter how lengthy, cannot operate as a standalone ground for a refusal to surrender.
49. This is not a case where in the particular circumstances it could be said, as in Minister for Justice v Palonka [2022] IESC 6, that although the delay of itself is not a standalone ground for a refusal of surrender of this Respondent, the lengthy passage of time in this particular case has led to a situation emerging that engages Article 8 of the ECHR in a genuinely exceptional way. Furthermore, there has been a lengthy and detailed explanation by the issuing state as to the passage of time in this case.
50. The Respondent is now a 73-year-old man with a number of health issues, all of which appear to have been well treated and all of which appear to be well controlled at present. Nothing has been put before the Court to suggest any reason to believe that he will not be provided with adequate medical care if surrendered to the United Kingdom. The onus is on the Respondent to adduce evidence to support any concerns in this regard and he has not sought to submit any such evidence.
51. Similarly, whilst there is no doubt that his surrender will impinge upon his enjoyment of family life and indeed the enjoyment of family life by his wife and other members of his family, as often stated this is a regular if not inescapable consequence of extradition. Disruption, even severe disruption of family life, does not ordinarily engage Article 8 of the Convention and raise a question as to the proportionality of surrender on foot of an otherwise lawful request.
52. On the evidence adduced by the Respondent the disruption of his normal family life, developed and enjoyed by him over a long number of years since 1976, could not in the context of an application for surrender be seen as being so exceptional as to amount to a disproportionate breach of his family and personal rights such that it would be a breach of the Convention or Constitution to now order his surrender to stand trial for these most serious offences.
Right to a Fair Trial: Delay and Alleged Inaction by IJA
53. It is not in dispute that, following on from the Judgment of the CJEU in Alchaster (Case C-202/24, Alchaster [2024]) the principles of mutual trust and confidence that underlie the operation of the Framework Decision and the consideration of applications from member states of the European Union, do not apply to the consideration of TCAWs received from the United Kingdom under the Trade and Cooperation Agreement.
54. Where objections are raised to surrender to the United Kingdom on the basis that, if surrendered to the United Kingdom on foot of a TCAW, there would be a real risk of a breach of his or her fundamental rights, the Court must not adopt the two stage test as set out in Aranyosi & Caldaru (Joined Cases C-404/15 and C-659/15 Aranyosi & Caldaru [2016]), as such a test only applies because of the system of mutual confidence and trust which applies under the Framework Decision and the United Kingdom is no longer a part of the EU and the Framework Decision.
55. A one step test applies which requires an evaluation, without any reference to the presumption underlying the operation of the Framework Decision, of all the circumstances in the individual case in order to consider whether there are valid reasons for believing that that person would run a real risk to the protection of his or her fundamental rights is surrendered to the United Kingdom. At paragraphs 78 to 80 of Alchaster, having distinguished between the one and two step tests, the CJEU described the approach to be adopted:-
'78. It follows that the executing judicial authority called upon to rule on an arrest warrant issued on the basis of the TCA cannot order the surrender of the requested person if it considers, following a specific and precise examination of that person's situation, that there are valid reasons for believing that that person would run a real risk to the protection of his or her fundamental rights if that person were surrendered to the United Kingdom.
79. Therefore, where the person who is the subject of an arrest warrant issued on the basis of the TCA claims before that executing judicial authority that there is a risk of a breach of Article 49(1) of the Charter if that person is surrendered to the United Kingdom, that executing judicial authority cannot, without disregarding the obligation to respect the fundamental rights enshrined in Article 524(2) of that agreement, order that surrender without having specifically determined, following an appropriate examination, within the meaning of paragraph 51 above, whether there are valid reasons to believe that that person is exposed to a real risk of such a breach.
80. For the purposes of that determination, it is necessary, in the first place, to point out that, although the existence of declarations and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of a breach of fundamental rights and freedoms (see, to that effect, judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 57), the executing judicial authority must, however, take into account the long-standing respect by the United Kingdom for the protection of the fundamental rights and freedoms of individuals, including as set out in the Universal Declaration of Human Rights and in the ECHR, which is expressly referred to in Article 524(1) of the TCA, and the provisions laid down and implemented in United Kingdom law to ensure respect for the fundamental rights set out in the ECHR (see, by analogy, judgment of 19 September 2018, RO, C‑327/18 PPU, EU:C:2018:733, paragraph 52).'
56. The Respondent has not suggested any defect in the system of justice in the requesting state such as might impinge upon his right to a fair trial. As has been made clear by the courts over a long number of years, certainly since the seminal judgement of the Supreme Court in Stapleton, ordinarily the place where issues such as delay and fair trial matters should be, and are more appropriately, raised are in the courts of the issuing state.
57. As it is generally appropriate to leave over any consideration of the issue of delay to the requesting state, so it is generally appropriate for the same reason to leave over the question of abuse of process as regards the criminal proceedings themselves to the courts of that state. As stated by Donnelly J in Downey (op. cit.):-
'80. In the view of this Court, it is undoubtedly true that the issuing state is the most appropriate place to deal with the question of an abuse of process as regards the criminal proceedings. The respondent has not asserted that there is any egregious defect in the system of justice in the issuing state that would prohibit (sic.) him from relying on such a process to prevent his surrender to that state. That is not the end of the consideration for this court, however. The real issue in these proceedings is whether it is an abuse of the process of this Court to surrender him in light of all the relevant facts. While the judicial authorities in the issuing state will undoubtedly be in a position to exercise control over the criminal proceedings and prohibit a trial where there has been an abuse of the process of their courts, it is for the High Court, as executing judicial authority, to determine if there is an abuse of process in surrendering him to face trial in the circumstances of this case'.
58. Although the presumption of mutual trust and confidence that underpins the operation of the Framework Decision, no longer applies to applications for surrender to the United Kingdom following its decision to leave the European Union, such applications are nonetheless to be approached on the basis of a presumption of good faith and cognisant of the fact that the UK is contracting state party to the ECHR and has a long history of compliance with the Convention.
59. In the absence of any evidence which might suggest otherwise, this Court must approach such complaints on the basis that the Courts of Northern Ireland can provide a fair trial to the Respondent. In the absence of any evidence to the contrary, this court must assume that there are available to the defendant and his lawyers in Northern Ireland various applications and procedures within which they can seek to ensure the fairness of the criminal process and raise issues such as delay and abuse of process.
60. There is therefore simply no basis to suggest that this Respondent will not obtain a fair trial in Northern Ireland and that he will not be in a position to fully litigate before the Courts of that jurisdiction issues such as delay and abuse of process, such as might impinge upon his fair trial rights.
61. Insofar as the Respondent, directly or indirectly, suggests some improper motive on the part of the requesting state over the years to previously seek his surrender, no evidence has been put before the Court to support such a bare assertion. Again, nothing has been put before the Court to raise any doubt that, for example, the Respondent would be shut out from challenging the continuation of this prosecution in Northern Ireland on the grounds of prejudice or improper motive on the part of the authorities such as to violate his right to a fair trial.
Abuse of Process
62. None of the issues raised by the Respondent individually give rise to a ground upon which he can successfully resist surrender for the reasons set out above. The Respondent has however submitted that cumulatively, for the reasons set out by him, it would be an abuse of the process of this Court to now order surrender.
63. Whilst the Courts jurisdiction to refuse to order surrender in extradition cases is not confined to cases of repeated applications, surrender has to date only been refused on such grounds where there have been previous applications. In this case the Court is considering the first application made by the Requesting State seeking the surrender of this Applicant for trial on these most serious of offences.
64. There has been a detailed response by the IJA to the request made by this Court seeking information as to their knowledge of the Respondent's whereabouts between 1976 and 2024 and as to the various decisions taken not to seek his extradition before 2024. Whilst there has been a lapse of time and there were periods of inaction on the part of the IJA, I do not agree with the Respondent's assertion that the Requesting state has failed to explain the delay. I agree with the Applicant that this case can be readily distinguished from cases such as Minister for Justice v Palonka [2022] IESC 6, where no explanation was offered for what occurred.
65. Furthermore, as stated by Burns J in Angel (op cit), a finding of abuse of process should not be lightly made. There is a public interest in Ireland honouring its international obligations under the various extradition treaties it has entered with other states. Where an abuse of process argument is made by way of objection to surrender, the Court's jurisdiction is limited to the question of whether the surrender proceedings themselves amount to an abuse of the process of this Court. This Court is not concerned with whether, for example, the issue of delay and the reasons therefor, could amount to an abuse of process of the courts in the requesting state.
66. Although every case falls to be determined on its own individual facts, I agree that it is of some assistance for these purposes to draw a comparison between the facts of this case and the facts in JAT (No 2). The individual circumstances in JAT (No 2) which cumulatively led to a finding of an abuse of process are in reality wholly absent here. As pointed out by the Applicant:-
- This is a first application for surrender whereas that case was concerned with a repeat application;
- The health difficulties of the Respondent in that case were far more pressing and serious than those of Mr McNicholl
- The family circumstances here bear no relation to those at issue in JAT (No 2) where the Respondent was one of the main carers of an ill son who needed considerable assistance;
- Here, unlike in JAT (No 2), there has been engagement by the IJA with the process and all requests from this Court;
- Unlike JAT (No 2) a detailed explanation has been offered in relation to the passage of time
67. Although this is a case where a long number of years have passed since the offences for which surrender is sought are alleged to have occurred, there is no reason to doubt that the Respondent will receive a fair trial if surrendered to Northern Ireland on foot of this TCAW. Furthermore, although there will be an interference (perhaps even a considerable interference) with his family rights if surrendered, the interference in this case is not so exceptional such as to raise the question of whether, taking into account the development of his family life over the years, it would now be so disproportionate to order his surrender that it might violate his family or personal rights under Article 8 of the Convention or the Constitution.
68. The circumstances of this case do not, in my view, compare with those under consideration by the Supreme Court in JAT (No 2) and which led that Court, having considered the cumulative effect of the circumstances, to hold that it would be an abuse of the process of the Irish Courts to order that Respondent's surrender.
69. I do not therefore consider this to be a case where there are grounds for this court, looking at all the circumstances cumulatively, to conclude that this is one of those cases where this application for surrender could be said to be an abuse of the process of this Court.
70. For the above reasons I have rejected the grounds of objection made by the Respondent and I therefore propose to make an order for his surrender pursuant to s. 16 of the 2003 Act.