Minister for Justice v O'Kane (Approved) [2025] IEHC 167 (20 March 2025)

THE HIGH COURT

[2025] IEHC 167

BETWEEN Record No 2024 EXT 108

MINISTER FOR JUSTICE

APPLICANT

SEAMUS CHRISTOPHER O'KANE

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:

(i) Unlawful possession, on the 16 February 1976, at Brockaghboy, Garvagh of explosive substances (two electric detonators and two improvised pressure mat switches) with intent to endanger life or cause serious injury to property in the United Kingdom, contrary to Section 3(1)(b) of the Explosive Substances Act, 1883;

(ii) On the same date and at the same location, unlawful possession of the said explosive substances, under such circumstances as to give rise to a reasonable suspicion that he did not have them in his possession or under his control for a lawful object, contrary to Section 4(1) of the Explosive Substances Act, 1883;

(iii) On the same date and at the same location, he had in his possession firearms and ammunition, namely one Browning pistol, two Walther pistols, a Remington shotgun and a quantity of ammunition, with intent to endanger life or cause serious injury to property or to enable any other person by means thereof to endanger life or cause serious injury to property contrary to Section 14 of the Firearms Act (Northern Ireland) 1969;

(iv) On the same date and at the same location, he had in his possession these firearms and ammunition under such circumstances as to give rise to a reasonable suspicion he did not have them in his possession 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 the details set out in the Warrant satisfy the requirements of 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. Possession of Firearms/Ammunition with Intent contrary to Section 27B of the Firearms Act, 1964 (as amended);

b. Possession of Firearms with Intent to endanger life or cause serious injury to property contrary to Section 15 of the Firearms Act 1925 (as amended);

c. Suspicious Possession of Firearms/Ammunition contrary to S27A of the Firearms Act 1964 (as amended);

d. Possession of Explosive Substances in suspicious circumstances contrary to Section 4(1) of the Explosives Act 1883

GROUNDS OF OBJECTION

13. The Respondent delivered Points of Objection on the 17 June 2024. At the hearing the following objections were pursued:-

a. 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 circumstances of this case, where these offences are alleged to have occurred 48 years ago amplified by the fact that there was a previous unsuccessful extradition request in relation to related matters some 46 years ago;

b. His surrender is prohibited as there has been a complete failure to guard his due process rights arising from culpable and blameworthy prosecutorial delay where the offences allegedly occurred in 1976, and a decision was made to prosecute in 1978. The Respondent has been denied his right to an expeditious trial guaranteed by Article 38.1 of the Constitution and Article 5 of the ECHR;

c. The surrender of the Respondent was previously refused in respect of offences which were dependent upon the same evidence as the offences for which surrender is now sought.

d. This request should be refused as it amounts to:-

a. An abuse of process

b. A collateral attack on a ruling already made by this Court;

c. An abuse of the rule in Henderson v Henderson;

d. A breach of the Respondents right to equal treatment.

ADDITIONAL INFORMATION

14. A request was issued pursuant to s. 20 of the 2003 Act on the 20 June 2024, seeking the following Additional Information:-

'1. Please provide full details of any knowledge the UK authorities had on 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 Agreement on 26 April 2004;

2. Please provide full details of any decision not to seek the requested person's extradition until 26 April 2004'

15. A reply was received from the IJA on the 17 July 2024 which provided the following additional information:-

a. An arrest warrant was issued on the 7 May 1976 following the Respondent's escape from custody in the Maze Prison on the 5 May 1976;

b. As it was believed he had travelled to Ireland this warrant was sent to the Gardai on the following day;

c. An order for his extradition was made on the 30 September 1977 but this was quashed on appeal in April 1978;

d. Records indicate that consideration was given during 1987 and 1988 to seeking his extradition from Ireland. At that time the Respondent was also wanted in Northern Ireland for offences of Murder and Attempted Murder. It is believed that a request was not made at that time because it was considered that it would be refused on the basis that the offences were political or connected to offences which were political in nature;

e. Records indicate that a request was made by the RUC, in October 1987 and February 1988, to the Attorney General and the DPP to reconsider this decision and again a decision was made not to seek extradition for the same reason;

f. The incidents linked to this request were first reviewed by the PSNI 'on the run' review team in 2001 and 2002. This was a team set up following the establishment by the UK Government of an administrative scheme to deal with 'on the runs', namely persons wanted in connection with offences carried out during the troubles in Northern Ireland;

g. The DPP in Northern Ireland reviewed the files in 2003 and concluded that the test for prosecution was then met for the offences in this TCAW and for offences of murder, attempted murder and escape from custody. Advice was sought by the DPP from the Crown Solicitor in Northern Ireland on the prospect of successfully seeking the surrender of the Respondent. It is stated that records from this time are incomplete, and it is not known why an application was not made for a European Arrest Warrant at that time. The Respondent however remained 'alerted' for arrest.

h. Operation Rapid, a further review team for 'on the runs', conducted further reviews of incidents connected to the Respondent in 2007 and 2009. They concluded that the test for prosecution remained met for the offences set out in this TCAW but that the test for prosecution was no longer met for the other offences of murder, attempted murder and escape from custody;

i. In January 2019 the PSNI submitted a new file to the PPS in respect of both this Respondent and this two co-accused, John Edward Anthony McNicholl and Gerard Joseph Kelly. During 2019 and 2020, the PPS requested the police conduct further enquiries including tracing witnesses to ensure availability and the taking of additional statements, this work continued through 2021 and 2022 and a decision was taken in 2023 that the test for prosecution remained met for the offences in the TCAW.

SUBMISSIONS OF RESPONDENT

Delay

16. The Respondent accepts that it is well settled law that delay of itself should not, ordinarily, amount to a bar to surrender. Relying on the decision of Denham CJ in Minister for Justice v JAT (No 2)[2016] IESC 17, the Respondent submits that delay can however, in conjunction with other factors, justify a refusal of surrender.

17. It is submitted that exceptionally in this case delay alone is capable of justifying a refusal to surrender. The Respondent submits that, whilst a decision was made to prosecute him for the TCAW offences on the 8 June 1976, it seems that no domestic warrant was ever issued in relation to these offences prior to 2024. And whilst an unsuccessful application was made for his surrender in relation to the other offences (the offences of Murder, Attempted Murder and Escape from Custody as set out above) in 1977, no such request was ever made in relation to the offences in the TCAW until 2024.

18. The Respondent states that no adequate explanation at all has been given for the failure to seek his surrender for the TCAW offences between 1976 and 2024. He submits that 'at best' the Northern Ireland authorities, after a decade of inactivity, did not seek his surrender in 1988 because they considered it might be refused and no explanation is provided for the failure to seek his surrender for the following 36 years.

19. Whilst acknowledging that there were other factors at play in that case, the Respondent relies on the comments of Hogan J in Minister for Justice v Palonka [2022] IESC 6, that 'a delay of 23 years [in that case] between conviction and surrender is in itself inordinate and the reasons for any such delay would need to be excused'.

Article 8

20. The Respondent has been living openly in Ireland since 1978 and, in that time, has built a normal and unremarkable family life. He does not suffer from any profound medical condition and assists with the care of his grandchildren. He states that this normal family life was built up over half a century and on the basis that he would not face trial for events in 1975 and 1976 following his escape from the Maze.

21. He submits that this certainty of family life in this jurisdiction, developed and strengthened since 1978 is the factor which elevates the proposed breach of his Article 8 rights to a disproportionate level. Referring to paragraphs 13 and 14 of the Judgement of Edwards J in Minister for Justice v TE [2013] IEHC 323, the Respondent asks what 'pressing social need' for surrender has been demonstrated by the Northern Ireland authorities in this case where they have singularly failed to seek surrender for 48 years.

22. The Respondent thereafter refers to a decision of the Recorder of Belfast in the case of Federal Republic of Germany v McAliskey [County Court, Recorder of Belfast, 23 November 2007] where a request for the surrender of Ms McAliskey to Germany was made for terrorist offences allegedly committed in 1996. In that case there was a protracted procedural history, which included an initial decision by the Home Secretary in 2008 to stay her surrender on the grounds of her then ill health. A second request was received in 2006, and her health again deteriorated. In these circumstances the Recorder refused surrender on this second warrant, finding that her surrender would be 'unjust and oppressive' and therefore was barred under Section 14 of the UK Extradition Act, 2003.

Abuse of Process

23. The Respondent submits that this case clearly demonstrates, individually and cumulatively, an abuse of process.

24. The Respondent firstly refers to the unsuccessful application for his surrender, in the years between 1976 and 1978, for a related offence of escape from lawful custody. This application was made at a time when a decision had already been made to prosecute him for the offences in this TCAW. His surrender was refused for the related offences in 1978 on the grounds that he had a substantial belief that if surrendered, he would be tried for offences that were political in nature. A direction for his release, on the grounds of the 'political offence' exception, was made under the then Section 50 of the Extradition Act, 1965.

25. The Respondent submits that it is inconceivable that his extradition would have been ordered for the offences in the TCAW at that time, given the decision made to refuse his surrender for the related murder, attempted murder and escape from custody offences. No explanation has been given as to why the Northern Ireland authorities did not seek his surrender on the TCAW offences at that time.

26. Whilst this is not a case where there have been successive attempts at surrender for precisely the same offences, the Respondent submits that the case comes within the wider doctrine of abuse of process.

27. The Respondent refers to Minister for Justice v Tobin (No 2) [2012] 4 I.R. 147 where Hardiman J described the broad and general nature of the abuse of process doctrine in the following terms :-

'[333] It appears, therefore, to be well established that abuse of process of the sort alleged here is separate and distinct from res judicata, which is not relied upon in the circumstances of this case. It is, instead, a separate but conceptually related weapon in the armoury of the courts to protect a litigant from oppression or harassment, to use two of the words employed in the cases. It is necessary that the court should have such powers, over and above the strict rules of res judicata, because the right to be free of harassment and vexatious litigation, are rights of a constitutional nature and arise fundamentally from respect for the dignity of the human person......'

28. Hardiman J then applied the principles to the facts of Tobin and, referring in particular to the proposition that 'there should be finality in litigation and a party should not be vexed twice in the same matter, that it is an abuse to subject a party to unjust harassment, that the appellant must therefore be protected from oppression, that it is important in the public interest, as well as that of the parties, that litigation should not drag on forever' found that the Respondent therein has been subjected to an abuse of process.

29. The Respondent herein submits that he has been subject to Henderson v Henderson type of abuse of process as the issuing state ought to have brought forward all its warrants for offences alleged against the Respondent when his surrender was sought between 1976 and 1978.

30. In his supplemental submissions the Respondent again acknowledges that his surrender is being sought for the TCAW offences and not for the ones for which surrender was previously sought (the murder and escape offences). He however there submits that the TCA offences are so closely linked and involved with the murder and escape offences that any attempt to distinguish them for the purposes of seeking his surrender is to create an artificial distinction.

31. He cites the Judgments of Denham J in Tobin (No 2) Hunt J in Bailey (No 2) and Burns J in Bailey (No 3) in support of the proposition that issue estoppel and accrued right can apply justifying a refusal of surrender on a second warrant where surrender was refused on the first. In Bailey (No 3) Burns J summarised the principles in this regard as follows:-

'From my review of Tobin and Bailey (No 2), I am satisfied that the principle of issue estoppel can apply in the context of an application for surrender made under the Act of 2003. I am also satisfied that a final judicial determination on a substantive issue, as opposed to a technical issue or alleged defect in the warrant, resulting in a refusal to surrender can give rise to an accrued right not to be surrendered on the part of the requested party'

32. The Respondent then cites the Judgment of Donnelly J in Minister for Justice v Leopold [2020] IEHC 84, a case where the Court refused surrender on a second warrant where an issue estoppel was found to have arisen from the decision of Edwards J on the first warrant where he has specifically given a reasoned decision refusing surrender on the grounds correspondence in respect of the same offence. The Respondent says that, adopting the analysis of Donnelly J in Leopold, this is a case where the issue here should not be re-litigated.

33. Mr O'Kane further submits that a point arises in respect of the Constitutional guarantee of equality of treatment and refers in this regard to the Judgments of the Supreme Court in McMahon v Leahy [1984] I.R. 525.

34. His surrender was refused on political grounds in 1978 for related offences and he claims that, in circumstances where the offences in the TCAW should have been the subject of an application in 1976 - 1978, to allow his surrender now would be to treat him in a constitutionally impermissible different manner for the TCAW offences merely because the Northern Ireland authorities delayed for 48 years before issuing this TCAW.

35. The Respondent nominates the following indicia of abuse of process :-

(i) The delay of 48 years in seeking his surrender for the TCAW offences, notwithstanding a decision to charge him for the same in 1976;

(ii) The absence of any adequate explanation for such delay;

(iii) The failure of the IJA to seek his surrender for all offences for which a decision had been made to charge him in 1976;

(iv) The absence of any adequate explanation for the failure to seek his extradition for all offences at that time;

(v) The IJA, in the additional information provided, cites knowledge that the Respondent had been granted a declaration by this court previously that his extradition was prohibited under the then existing 'political offence' exception;

(vi) The Respondent has, for 46 years, believed these events were behind him and lived his life with such a belief;

(vii) By failing to previously seek his surrender for all offences, including those in the TCAW warrant now before the Court, the requesting state seeks to benefit from behaving in a manner which is de facto abusive of the processes of this court;

(viii) No consideration has been given by the IJA to the Article 8 rights of this Respondent.

SUBMISSIONS OF THE APPLICANT

36. The Applicant first refers to his written submissions in the related proceedings against John Edward Anthony McNicholl, insofar as they address issues common to both cases in relation to delay and abuse of process.

37. The Applicant submits that the Respondent does not, and indeed cannot, explain how an abuse of process can arise in relation to proceedings which were concerned with other offences, namely the escape and murder offences for which surrender was refused in 1978.

38. The fact is that his surrender was never previously sought for the TCAW offences, and the height of his argument is therefore that if he had been the subject of an earlier extradition request for the offences in this TCAW, then his surrender might have been refused under the political offence exception thereby permitting him to argue abuse of process and / or the existence of an acquired right.

39. The Minister submits that the political offence exception, as applied at the time of the previous unsuccessful extradition application for the so called 'related offences', no longer applies and is of no relevance. The introduction of the 2003 Act had the effect of doing away with such an exception to surrender. And although it was reintroduced in Article 602 of the Trade and Cooperation Agreement, it is not suggested that the facts giving rise to the alleged offences in this case could give rise to such a bar to surrender. The Applicant submits that the Respondent seeks to elide any distinction between the offences the subject of the 1978 refusal to surrender and the offences in the TCAW for the purely artificial purpose of suggesting an abuse of process in the nature of repeat proceedings.

40. The Applicant submits that the reliance of the Respondent on the dicta of O'Donnell J in Tobin (No. 2) in support of the argument that he has an acquired or vested right not to be proceeded against because of the 1978 refusal is wholly misconceived for the following reasons:-

a. The dicta of O'Donnell J on this issue were only shared by Hardiman J and thus represent the minority view on this issue;

b. An even cursory review of O'Donnell J's judgment in Tobin (No 2) makes it clear that what he was considering was whether or not it was open to Mr Tobin to argue whether the result in Minister for Justice v Tobin (No 1) [2008] 4 IR 42 ('Tobin No. 1') gave rise to a vested or acquired right. The respondent is not in the same position at all as no decision has previously been made, nor indeed has his surrender ever been previously sought, in respect of the offences in the TCAW. No issue in relation to the TCAW has actually previously been decided in this case.;

c. The fact that there were no previous proceedings relating to the offences under consideration make it impossible for any vested right to be claimed as in Tobin (No. 2). The right that is asserted in this case never vested in the Respondent as regards the TCAW offences;

d. Given that there was no refusal to extradite in respect of the TCAW offences on the grounds of the political offence exception, it is simply not open to the Respondent to contend that had extradition been sought in respect of the same at the relevant time that surrender would have been refused;

e. To hold otherwise would have the impermissible result that amendments to the law could not apply to the vast cohorts of persons for whom an application for surrender had never been made. By way of example, the argument of the Respondent would mean that the amendment to section 10 of the 2003 Act that arose after (Tobin No 1) would not have applied to any person who had committed an offence prior to amendment irrespective of when their surrender was sought

41. The Applicant submits that, even taking the judgment of O'Donnell J in Tobin (No 2) as a binding precedent it proceeds on the basis that Section 27 of the 2003 Act applied in Tobin (No 2) by reason only of the fact that was a binding decision in Tobin (No 1) and that it did not and could not apply more generally. It could not apply to those who had not taken proceedings (or not had proceedings taken against them) previously. The Respondent in not a person who was the subject of previous proceedings and therefore the judgement is of no application to his case.

McMahon & Leahy

42. Insofar at the equality of treatment argument is concerned, the Applicant says that it is clear that the principle identified in Mc Mahon v Leahy [1984] I.R. 525 was no more than the idea that it would be invidious for those who committed the same offence to be treated entirely differently by reason of a happenstance of timing. What had connected all the persons concerned in that case was that they had been part of the same break out from the Maze prison and the reference to it being the same offence was intended to convey that it had actually been the same offence rather than the same category of offences.

43. The Minister further notes that doubt appears to have been subsequently cast by O'Donnell J in his judgment in Tobin (No 2) on one of the foundational premises of McMahon v Leahy, namely that none of the Maze escapees could ever be the subject of a further request for extradition, for example even if and when the law in relation to political offences changed. In summary on this issue the Applicant submits that McMahon v Leahy:

(a) Is confined to the facts of that case;

(b) Is of no application in the present case; and

DISCUSSION

44. 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. In this regard I refer to paragraphs 62 - 68 of my Judgment in the associated case of Minister for Justice v McNicholl.

45. As stated therein the principles were comprehensively summarised by Burns J in Minister for Justice v Angel [2020] IEHC 699 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 '

46. The Respondent submits that, looking cumulatively at the circumstances in this case, his surrender would amount to an abuse of the process of this Court. The circumstances he relies upon in this regard are:-

(i) The delay of 48 years in seeking his surrender for the TCAW offences, notwithstanding a decision to charge him for the same in 1976;

(ii) The absence of any adequate explanation for such delay;

(iii) The failure of the IJA to seek his surrender for all offences for which a decision had been made to charge him in 1976;

(iv) The absence of any adequate explanation for the failure to seek his extradition for all offences at that time;

(vi) The Respondent has, for 46 years, believed these events were behind him and lived his life with such a belief;

(viii) No consideration has been given by the IJA to the Article 8 rights of this Respondent.

47. There is much in common between the facts and circumstances pleaded in this case and the associated case of McNicholl as giving rise to an alleged Abuse of Process. There are however differences between each case and the Respondent in this regard lays particular emphasis on the failure of the requesting state to seek his surrender for all offences then extant against him in 1976 - 1978, which includes the offences set out in the TCAW, as being de facto an abuse of the process of this Court.

48. It is by now well settled law that delay, no matter how lengthy, cannot operate as a standalone ground for the refusal of an otherwise lawful request for surrender. There may be circumstances, as for example in Palonka, where the passage of time led to the growth of family or personal circumstances such that it would be a breach of Section 37 of the 2003 Act to order surrender. In other words, as recognised in that case, delay may, in truly exceptional circumstances, lead to the development of family or personal rights such that it may be disproportionate and in breach of the Convention and Constitution to order surrender. Similarly, as in JAT (No 2), delay may be one of the several factors to be weighed in the balance in considering whether, in the particular circumstances of an individual case, the court ought to refuse surrender on the grounds of an abuse of its processes.

Delay and Article 8 Rights

49. This is not a case where in its 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. In addition, unlike the circumstances under consideration in Palonka, there has been an explanation (albeit not a complete explanation) for the passage of time between the alleged commission of these offences and the issuance of the TCAW.

50. The Respondent has been living openly with his family in this jurisdiction since 1978 and his family is now raised. He does not suffer from any particular medical conditions and nor do any members of his family. In the intervening years he has built an unremarkable and normal family life and says he has done so on the basis that he would not face trial for the events that took place back in the 1970s.

51. The Respondent says that this factor, that of certainty of life in this jurisdiction, developed and strengthened over those years, is what elevates the proposed breach of his Article 8 rights to a disproportionate level.

52. 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.

53. 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 1978, 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 offences.

Right to a Fair Trial: Delay and Alleged Inaction by IJA

54. Although the Respondent does not directly raise the issue of breach of fair trial rights in the facts and circumstances of his case, this Court would nonetheless for the sake of completeness repeat its comments and observations on this issue as set out at Paragraphs 53 - 61 of McNicholl.

55. In other words, applying the post Alchaster test to this question, namely whether there is a risk of a breach of the Respondent's fundamental rights if surrendered, the following is clear:

(i) No evidence has been put before the Court to suggest that there is any risk of a violation of the right of the Respondent to a fair trial in accordance with Article 6 of the Convention;

(ii) No evidence has been put before the Court to suggest that there are not available to the Respondent procedures and remedies to raise issues relating to delay and abuse of process in the Courts of Northern Ireland and / or to suggest that such remedies would not be effective in vindicating his right to a fair trial;

(iii) Applying the principle of good faith that underlies the operation of the Trade and Co-Operation Agreement and cognisant of the comments of the CJEU in Alchester as to the long standing membership of the UK of the ECHR and its compliance with the rulings of the ECtHR, there is no basis upon which to suspect that the fair trial or other fundamental rights of the applicant would be violated if surrendered on foot of this TCAW

Failure to previously seek surrender for TCAW offences

56. The Respondent has sought to distinguish this case from that of McNicholl due to the failure of the Requesting State to seek his surrender for these offences when seeking his surrender for what he calls the 'related offences' of escape and murder in 1978.

57. The Respondent says that it was improper and an abuse of the processes of the Irish Court for the Requesting State not to then seek his surrender for all offences for which he was wanted by the Northern Ireland authorities, including the offences set out in this TCAW. He submits that he has been the victim of a Henderson v Henderson type abuse as the issuing state ought to have brought forward all of its warrants against the Respondent when his surrender was sought in 1978.

58. The following facts in this regard are established:-

a. The Respondent was arrested for the offences in this TCAW on the 16 February 1976;

b. He was charged with the Murder offences (alleged to have been committed on the 26 July 1975) on the 19 February 1976;

c. He escaped from the Maze prison in Northern Ireland on the 5 May 1976;

d. His extradition for the murder and escape offences was refused in the High Court in this Jurisdiction on the 4 April 1978;

e. His surrender for the offences set out in the TCAW has not previously been sought;

f. This is therefore the first occasion upon which an Irish Court has had to consider whether or not to order surrender on foot of the offences in the TCAW.

59. This application is made by the Minister on foot of the first request from the issuing state seeking the surrender of this Respondent to stand trial for the offences set out in the TCAW. There has been no previous consideration or ruling by any Court in this jurisdiction on the question of whether Mr O'Kane should be extradited to Northern Ireland for these offences.

60. As was made clear by Donnelly J in Leopold issue estoppel can apply in the context of a surrender application under the 2003 Act. And a final judicial determination on a substantive issue resulting in a refusal to surrender can give rise to an accrued right not to be surrendered. No decision has previously been made on any issue of law or fact concerning this extradition application. It is not therefore a case where any issue estoppel or accrued right can arise as there has simply been no previous determination on any such issue.

61. Furthermore, the Respondent cannot claim any acquired or vested right not to be proceeded against as a result of the refusal to order his surrender in relation to the murder and escape offences in 1978. Although he describes these offences as ones which are 'related' to the offences set out in the TCAW, they are not the offences for which his surrender was refused in 1978. Although described as 'related', the alleged offences concern events more than a year prior to the murder and escape offences and were said to have occurred at a different location and furthermore are offences of a different kind. It is not therefore a case where the offences in the TCAW are, for example, part of a series of offences which arise from the same incident or series of incidents.

62. I agree with the submission made by the Minister that, even on the basis of the Judgments of Hardiman and O'Donnell JJ in Tobin (No 2) which were of course in a minority on this issue, the fact that there have been no previous proceedings in relation to these offences makes in impossible for any vested or acquired right to be claimed by this Respondent in this case.

63. The Respondent seeks to argue that had his extradition been sought for these offences at the same time as it was sought for his extradition for the murder and escape offences, his surrender would inevitably have been refused and he must therefore have acquired some form of vested right given the likely outcome of any such extradition application in 1978. Such an argument was specifically commented upon by O'Donnell J in the course of his Judgment in Tobin (No 2) where he referred to the rejection of a similar argument in the case of Minister for Justice v Bailey [2012] 4 I.R. he stated:-

'[438] ... In that case it will be recalled, Mr Bailey's surrender was sought by French authorities in respect of an offence committed in Ireland in 1996, and in respect of which the Director of Public Prosecutions had decided on a number of occasions between 1997 and 2001, not to commence any prosecution in Ireland. Under the terms of s 42(c) of the Act of 2003 this was a ground for refusal of surrender. However s 42(c) was repealed by s 83 of the Criminal Justice (Terrorist Offences) Act, 2005. The relevant request for surrender was made in 2011 long after the repeal of s 42(c) of the 2003 Act. It was however argued on Mr Baileys's behalf that the existence of s 42(c) of the Act of 2003 during the time in which it was enforced, conferred upon Mr Bailey (being a person in respect of whom the Director of Public Prosecutions had made a decision not to prosecute) a right not to be surrendered and the subsequent repeal of s.42 (c) was not to be construed as affecting or removing that right. This court concluded unanimously, following in this regard the reasoning in Sloan v Culligan [1992] 1 IR 233 that the mere existence of legislation which could be invoked to resist surrender at a particular time did not itself constitute a vested or acquired right, so as to trigger the presumption contained in s.27 (1)(c) of the 2003 Act.'

64. As submitted by the Minister, the salient fact is that no such issue (the question of whether this application might have been refused on the political exception ground) has never arisen in relation to these offences. The question of what might have happened had these proceedings taken place at that time is of no relevance or has no bearing on any question in these proceedings. An acquired or vested right cannot be asserted on the basis of what might have happened on the basis of the law as it then existed.

65. Even taking the judgment of O'Donnell J in Tobin (No 2) as a binding precedent, which is not the case as he was in the minority on this issue, he proceeded on the basis that s. 27 of the Interpretation Act, 2005 applied in that case on the basis of a binding decision on an issue of substance in Tobin (No 2). His judgment cannot be availed of by a person such as the Respondent, who had not previously taken proceedings (or had proceedings taken against him) and therefore acquired a vested right as a result of a binding decision in those earlier proceedings.

66. The Respondent has further referred to the judgment of Murray CJ in Tobin (No 2) where, having referred to In Re Vantive Holdings [2010] 2 IR 118, he referred to the power of the court to protect courts from vexatious or frivolous litigation and the obligation on parties to make their whole case before the court when the matter is before the court for adjudication. The Respondent submits that this rule has application on the facts of this case and that the court ought to intervene to stay these proceedings as this extradition should have been sought back in 1978.

67. I do not consider that these comments or this rule can have any application on the facts of this case. This is a separate application for extradition for separate offences and not a situation where, as in the cases cited by the Respondent, there was some criticism of a litigant for, for example, not putting forward all of his arguments in relation to a dispute in one set of proceedings. I do not consider the Respondent to have been the victim of some form of Henderson v Henderson type abuse on the facts of this case.

McMahon v Leahy

68. The principle identified by the Supreme Court in McMahon v Leahy cannot be availed of by the Respondent in this case as he is not in a position to point to differential treatment of any other person who committed or was sought for the same actual offences as those covered in the TCA warrant.

69. At paragraphs 51 - 52 of her Judgment in Tobin (No 2) Denham CJ said the following:-

'[51] In McMahon v Leahy [1984] IR 525 at issue was equality before the law. It had been the practice and law for the High Court, influenced by the State's attitude, to declare that escapes in Northern Ireland were political offences. A solemn declaration and direction had issued from the High Court to the effect that four escapees from Newry Courthouse on the 10^th March 1975, were political offenders. In this case the State sought the opposite result in similar proceedings and on similar facts under the same Act. O'Higgins CJ stated at p 537:-

'if the state were successful in this submission, it would mean that contradicting declarations in relation to the same incident would have issued from our courts. If such occurred, respect for the administration of justice in our Courts would surely suffer, and the Courts process would surely have been abused'

[52] This appeal is entirely different

(i) There is no question of equality as between this appeal and other persons and court orders. Mc Mahon v Leahy was determined on the basis of the obligation to provide equal treatment for citizens of the State in accordance with Article 40 of the Constitution. It would have been unfair if co-escapees of the applicant had the benefit of the 'political offence' defence and the applicant did not

(ii) The issue in Tobin (No 1) was on the interpretation of 'fled', which is no longer an issue. The issue in the other cases referred to in Mc Mahon v Leahy was the same, the political offence defence, such as an equality issue does not arise in this case'

70. As was made clear by Denham CJ therein, the principle identified in McMahon v Leahy arises from the idea that it would be invidious for those who committed the same offence to be treated entirely differently due to the happenstance of timing. So, therefore, it would have been invidious if certain persons who had escaped from custody were to be declared 'political offenders' whereas other persons who had escaped from the same custody at the same time were not at some later date.

71. This principle can have no application to the facts of this case as the Respondent simply cannot point to a differential treatment of any other person who committed or was sought for the offences as those set out in the TCAW.

Abuse of Process

72. None of the issues raised by the Respondent individually therefore give rise to a ground upon which he can successfully resist surrender for the reasons set out above. The Respondent has however also 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.

73. Although every case falls to be determined on its own individual facts, as in the associated McNicholl judgment, I agree that it is a useful exercise to draw a comparison between the facts of this case and the facts in JAT (No 2), insofar as relevant to the issue of abuse of process. Doing such an exercise the following individual facts are of particular relevance:-

(i) This is a first application for surrender whereas that case was concerned with a repeat application;

(ii) The health difficulties of the Respondent in that case were far more pressing and serious than those of Mr O'Kane

(iii) 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;

(iv) Here, unlike in JAT (No 2), there has been engagement by the IJA with the process and all requests from this Court;

(v) Although the passage of time is very lengthy in this case, unlike JAT (No 2) an explanation has been offered in relation to the passage of time;

(vi) Unlike the position in JAT (No 2) a decision was made to prosecute the Respondent for the offences in this TCAW back in 1976 and before an earlier unsuccessful extradition application was made to the Courts in this jurisdiction for his surrender on other offences (the murder and escape offences ). The requesting state did not however then seek the surrender of the Respondent for the offences in the TCAW.

74. Whilst the Court's 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. This is the first application made by the requesting state seeking the surrender of this Applicant for trial on these offences.

75. 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 for the offences in the TCAW 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 Respondents 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.

76. 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.

77. 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.

78. 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.

79. This is not a case where the surrender of the Respondent has been previously sought to stand trial for the offences set out in the Warrant. No issue estoppel or accrued right arises in this case, as no issue has been determined before in relation to his extradition for these offences. For similar reasons he cannot assert any vested or acquired right as a result of some previous decision in relation to these offences and any request for his surrender thereon. Although he asserts that the offences are 'related' offences for which his surrender should have been previously sought, the fact remains that the offences for which his surrender is now sought are distinct from those for which surrender was refused in 1978. Those offences were ones alleging murder, attempted murder and escape from lawful custody. The offences alleged in the TCAW were committed at a different time, in a different location and are different types of offence.

80. 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. I do not consider that this extradition application, seeking for the first time the surrender of this Respondent on foot of this lawfully issued TCAW to try him for serious offences, could be said to amount to harassment or vexatious litigation.

81. 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.

82. 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.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Minister for Justice v O'Kane (Approved) [2025] IEHC 167 (20 March 2025) URL: http://www.bailii.org/ie/cases/IEHC/2025/2025_IEHC_167.html Cite as: [2025] IEHC 167

High Court of Ireland Decisions