High Court dismisses surrender request due to abuse of process from French authorities and Minister's conduct.

[2017] IEHC 482

THE HIGH COURT

2017 No. 46 EXT

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

IAN BAILEY

RESPONDENT

JUDGMENT of Mr. Justice Hunt delivered on the 24th day of July, 2017

Background

1. By these proceedings the applicant seeks the surrender of the respondent Mr Ian Bailey to France, pursuant to a request effected

by way of a European Arrest Warrant (“the warrant”). The offence alleged in the warrant is the murder of Mme. Sophie Toscan du

Plantier in Cork in December 1996. The warrant appears to have been issued in or about the 3rd of August 2016 by Ms. Anne

Givaudand, Magistrate of the Judicial Order and Vice-Prosecutor. It is based on a domestic warrant for arrest issued on 13th of July

2016 by Ms. Nathalie Turquey, Vice-President in charge of investigation at the High Instance Court of Paris, for the purpose of

criminal prosecution. The warrant is further described as a warrant of arrest for the purpose of criminal prosecution pursuant to

section 131 of the Code of Penal Procedure. The subsequent English translation is dated the 2nd November 2016.

2. The warrant was endorsed for execution pursuant to section 13 of the European Arrest Warrant Act 2003 on the 30th of March

2017. On the same date, Mr Bailey was arrested by prior arrangement and immediately remanded on bail. The respondent objected to

his surrender on foot of this warrant, and the application and objection were heard on various dates in May and June 2017.

3. An obvious and unusual feature of this case is that the Supreme Court has previously ruled that there is a jurisdictional bar to the

surrender of Mr Bailey to France in respect of the alleged offence. By judgments and order of the 12th of March 2012 the Supreme

Court ruled that Mr Bailey’s surrender for the alleged murder of a French citizen in Ireland is prohibited by virtue of the provisions of

section 44 of the European Arrest Warrant Act 2003 (“the Act”). On this point, the Supreme Court divided by four to one in favour of

Mr. Bailey. The case is reported as Minister for Justice and Equality v. Bailey at [2012] IESC 16 and [2012] 4 I.R. 1. The facts of the

matter up to that date are extensively recited and may be found therein. I do not propose to recite or revisit the factual matters

apparent in the various judgments of the Supreme Court, and will refer only to the few developments that have occurred since that

date.

Res Judicata/Issue Estoppel

4. The first and principal issue which arises in this application is as to whether it should be dismissed on the grounds that surrender is

prohibited by section 44 of the Act as amended. For the respondent, Mr Simons SC submitted that as there had been no material

change in either the factual circumstances alleged or in the applicable statutory regime since the delivery of the Supreme Court

judgment, the applicant is precluded and/or estopped from re-litigating the matter of the surrender of the respondent on foot of the

second warrant, absent a change of circumstances. On that basis, it was said that this issue was res judicata, and/or subject to an

issue estoppel, and/or subject to a cause of action estoppel.

5. The Minister submitted that the principle of res judicata did not apply. In that regard, it was submitted that the Respondent’s case

was premised on the mistaken assumption that the applicant was seeking to reopen the decision reached by the Supreme Court in the

previous application, which was not the case as the current application currently before the court is based on a fresh warrant. This

submission was based on the decision of the High Court of England and Wales in Auzins v Prosecutor General’s Office of the Republic

of Latvia (2016) EWHC 802 (Admin), to the effect that the principle of res judicata does not apply to criminal proceedings applied in

equal measure to extradition proceedings. Mr Barron SC also relied on Attorney General v. Abimbola [2008] 2 IR 302 in that regard. He

also submitted that European Union law does not permit res judicata to be applied in all cases where it would have the effect of

precluding a Member State from applying European Union law and complying with its obligations thereunder. The placing of a fresh

European Arrest warrant before the Court gave rise to a fresh application to be determined, and there was no exception to the prima

facie obligation to surrender on grounds of res judicata to be found in the Framework Decision underpinning the European Arrest

warrant regime. Mr Barron suggested that this was the first occasion when it had to be decided whether these doctrines had any

applicability to extradition matters in this jurisdiction.

6. If it is the first such occasion, I am greatly assisted in the decision to be made by a range of previous observations of the Supreme

Court. I am satisfied that in such proceedings, a critical distinction may be drawn between the refusal of surrender in earlier

proceedings and the conclusive determination of an issue of law or fact as part of that refusal. A refusal of surrender pursuant to a

first warrant does not preclude the issue of a second or subsequent warrant. However, if an issue of law or fact has been

conclusively determined in the earlier proceedings, and there has been no material change in the factual or legal circumstances

presented to the court considering issues arising from the second warrant, I am satisfied that on issues integral to the determination

in the earlier proceedings, that determination remains binding on the parties to the first decision.

7. An example of the presentation of a second or fresh warrant following a previous refusal to surrender is found in Attorney General

v. Gibson [2004] IESC 85. The first warrant had been dismissed by the District Court on the basis that the facts set out in that

warrant were insufficient to allow the District Judge to determine whether there was correspondence between the offence alleged

against the respondent and an offence in this jurisdiction, as required by the Extradition Act 1965 (as amended). A second warrant

was then issued by the requesting State which set out more detailed particulars of the alleged offence. This was then presented to

the High Court. The Supreme Court held that the High Court was not precluded by the principle of res judicata from adjudicating on

the second, differently worded warrant. Keane C.J. stated as follows:-

“It is necessary to say at the outset that, in my view, it is clear beyond argument that in extradition cases, the mere

fact that a warrant has been issued and an application made arising out of the warrant to the court for an order or

extradition, that a warrant has been issued on an earlier occasion arising out of precisely the same alleged offence, and

has been adjudicated upon by the District Court or any court of competent jurisdiction, that fact does not, of itself and

by itself, preclude a subsequent application to a court of competent jurisdiction. If there were any doubts that that is

the state of the law, they were, in my view, laid to rest by the decision of this court in Bolger -v- O’Toole (unreported

decision of the court, delivered on 2nd December, 2002).

8. Significantly, the Supreme Court then stated the following in relation to extradition matters:-

“It is a particular judicial procedure under which, given the existence of an extradition treaty, a court has to determine

whether the specific requirements of the extradition treaty, in this case Part 3 of the Extradition Act, 1965, have been

complied with. Namely, in effect, has the person before the court been identified as the person in the warrant and does

the warrant or any other material before the court show that the offence with which he is charged is an offence

corresponding to an offence of the requisite degree of gravity in this jurisdiction. Points may be taken on an earlier

hearing which are technical in nature and that may be how the points taken before District Judge Haughton, points

which concerned him may be characterised but it is of no relevance at the end of the day because what is relevant is

that the District judge can be said to have arrived at an adjudication which is final and binding between the parties and

their privies and which relates to the same issue. If it does not relate to the same issue then it does not really matter

whether one describes it as a decision on a technical point, a decision on a substantive point, a decision on the merits or

whatever, if it was a final adjudication made within his jurisdiction as between the parties and their privies then, of

course, the doctrine of res judicata can well arise in subsequent cases. If it is an adjudication on a different issue, then

it does not matter, again, whether it is a technical issue or an issue on the merits.”

I am satisfied that if the doctrine of res judicata cannot apply by definition to issues arising in relation to a second or subsequent

request for rendition, this passage is strong authority for the existence and availability of a plea of issue estoppel in appropriate

circumstances in such cases.

9. Bolger v. O’Toole, an unreported judgment of December 2nd 2002, was also a “second warrant” case, in which Denham J. stated as

follows at page 12:-.

“[…] The fact that a previous set of warrants existed and on which the applicant was discharged does not prima facie

exclude the production and endorsement of a second set of warrants. It may well be that for good reason, in the

circumstances of a case, a court may determine that an application for rendition should be refused. Thus, if it were an

abuse of process the application may fail. In this case the applicant has been refused leave to make a specific

application grounded on specified issues of abuse of process. However, that would not be a bar to any subsequent

application for habeas corpus on different issues. Similarly, issues such as delay, which may arise in accordance with the

legislation as well as the Constitution, are separate issues which may be raised. However, these matters are not before

this court.”

10. O’Donnell J. also clarified this question in Minister for Justice and Equality v. J.A.T. (No. 2) [2016] 2 I.LR.M. 262, [6] as follows:-

“[…] The position in relation to warrants is fundamentally different. Importantly, there is no process of amendment. The

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

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

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

concepts of bringing all claims at the same time. In the case of warrants, that would amount to saying that only one

warrant could ever be issued. For these reasons and more, it has always been held that the fact that an initial warrant

has been found to be defective does not preclude the issuance of a further warrant. […]”

11. The applicability of res judicata/estoppel to extradition proceedings is also discussed in some of the judgments in Minister for

Justice v. Tobin (No. 2) [2012] 4 I.R. 147. Obviously the question did not arise directly in that case, because the legislative provision

that had barred surrender on the first warrant had been amended subsequent to the first set of proceedings, and thus the

interpretation of the original version of the legislation was no longer determinative of issues presented on foot of the second warrant.

The current position in this case is quite different. Unlike after the decision in Tobin (No.1), the Minister has taken no steps since the

date of the Supreme Court decision refusing the surrender of Mr Bailey to effect any amendment to the statutory provision relevant

to this case, notwithstanding the dissatisfaction expressed in the course of the hearing as to the correctness of the conclusion of the

majority of the Supreme Court on the interpretation of section 44 of the Act. There has been ample opportunity to amend the section

in question if it is thought that the Supreme Court made an error, or that the law ought to be otherwise than as expressed by that

Court, and to ensure that any proposed alternative to section 44 is otherwise consistent with the Constitution and any relevant EU

law.

12. Murray J. stated that the general application of the doctrine of res judicata - which the parties had conceded did not apply to

extradition cases - should not be confused with the subsidiary principle of issue estoppel, which would apply: see his remark at para.

[145]. The rationale for the existence of this principle has been expressed many times. The following statement of the law as to issue

estoppel by Sir Owen Dixon in Blair v. Curran (62 C.L.R. 464 at pp.531/2) was cited with approval by the Supreme Court in Belton v.

Carlow County Council [1997] 1 I.R. 172 at 180.

“A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot

afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior

judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that

conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights

be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action

claimed or put in suit has in the formal proceedings passed into judgment, so that it is merged and has no longer an

independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or

law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.”

13. This rationale was also summarised as follows by Keane J. in Dublin Corporation v. Building and Allied Trade Unions [1996] 1 I.R.

468 at 481:-

“It is accepted by the Corporation that the award in this case was final and binding on both it and the union. The

doctrine of res judicata applicable to this, as to every final judgment or award of any competent court or tribunal, has

the consequence that the parties are estopped between themselves from litigating the issues determined by the award

again. The justification of the doctrine is normally found in the maxim interest rei publicae ut sit finis litium and it is

important to bear in mind that the public interest referred to reflects, in part at least, the interest of all citizens who

resort to litigation in obtaining a final and conclusive determination of their disputes. However severe the stresses of

litigation may be for the parties involved the anxiety, the delays, the costs, the public and painful nature of the process

there is at least the comfort that at some stage finality is reached. Save in those exceptional cases where his opponent

can prove that the judgment was procured by fraud, the successful litigant can sleep easily in the knowledge that he

need never return to court again.”

14. See also Hamilton C.J. in In re Greendale Developments Ltd. (No. 3) [2000] 2 I.R. 514 at 529:-

“These passages emphasise the fundamental importance of the finality of proceedings to the certainty of the

administration of law. Public policy requires a definite and decisive end to litigation.”

15. I am satisfied that the observation made by Murray J. is a correct and succinct identification of the applicability of the principle of

issue estoppel to extradition cases. I have set out the rationale for the principle as expressed in the citations above to emphasise

that there is no reason to exempt extradition litigation from this reasoning, and I am satisfied that the principle therefore applies with

as much force to this case as it does to other classes of case. The fact that extradition litigation takes the form of an inquiry rather

than an adversarial contest makes no difference to this conclusion. There is the same interest in finality and certainty in relation to

the outcome of such inquiries as there is in other cases, together with the same necessity to avoid the parties to such inquiries and

the courts conducting same being vexed repeatedly with issues previously and conclusively decided as between the same parties.

16. In Minister for Justice v. Tobin (No. 2) O’Donnell J. also addressed this issue, at paras.[442] to [448]:-

“[442] In my view this case cannot be decided by an appeal to some sweeping constitutional principle of uncertain

extent, or invocations of generalised statements of law. In particular the statement that ‘res judicata is not applicable

to extradition’ is one that while perhaps unremarkable as a rule of thumb, requires closer scrutiny. It suggests on the

one hand that the application of the law in relation to extradition is an exception to a general rule and ought therefore to

be narrowly construed. In fact, it may be that there is nothing unique about the law of extradition in this regard. The

feature identified that a fresh warrant can always be issued and executed after a court has refused to enforce an earlier

warrant on the grounds of some defect is common to any warrant whether for arrest or for search. It is a feature

therefore of the law of warrants rather than the law of extradition. It is relatively unusual that the validity of a search

warrant would be considered outside the context of an argument as to the admissibility of evidence in a trial, but where

it is such as in the case of Simple Imports Ltd. v. Revenue Commissioners [2000] 2 I.R. 243, there seems little doubt that

if a new warrant was issued, and the material was still available, it could be seized on foot of the new warrant. It is a

common place of the law of habeas corpus and Article 40.4 inquiries, that warrants or arrests may be held invalid, and a

person released, but arrangements can lawfully be put in place to effect an immediate re-arrest. In the somewhat

different circumstances of Curtin v. Dáil Éireann [2006] IESC 14, [2006] 2 I.R. 556 it was held that where a computer

had been seized on foot of a search warrant unlawfully and in breach of the applicant’s constitutional rights, the

evidence was declared inadmissible at the trial and he was acquitted on those charges and could not be prosecuted

again. However, a subsequent direction given by an Oireachtas committee for production of the computer was held to

be valid, Murray C.J. observed at p. 637:-

‘[166] If the computer could have been and had been returned to his possession it could not be said that the

exclusionary rule means that it was forever immune, in all circumstances, from a lawful seizure or order for

production.’

Therefore, whether the determination that a warrant is invalid has a temporary or permanent consequence depends

upon other factors such as whether it occurs in the context of a trial and results in an acquittal, or whether it is or

remains possible to issue and execute a fresh and valid warrant.”

17. O’Donnell J. returned to this question in Minister for Justice and Equality v. J.A.T. (No. 2) [2016] 2 I.LR.M. 262, para.[6].

“[…] The position in relation to warrants is fundamentally different. Importantly, there is no process of amendment. The

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

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

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

concepts of bringing all claims at the same time. In the case of warrants, that would amount to saying that only one

warrant could ever be issued. For these reasons and more, it has always been held that the fact that an initial warrant

has been found to be defective does not preclude the issuance of a further warrant. […]”

18. In my view, it therefore follows that, although res judicata cannot apply so as to exclude scrutiny of a second warrant, and all

issues must be looked at afresh in such a case, the applicability of issue estoppel has the consequence that individual issues

determined in relation to a first warrant can directly affect the resolution of matters arising on a second or subsequent warrant issued

in relation to the same subject matter. An estoppel can arise where the legal issue remains identical, and where there is also no

relevant difference in the applicable factual circumstances. I am satisfied that the present application involves precisely the same

issue of extra-territoriality previously settled by the Supreme Court, without any alteration to the underlying facts or law since the

matter was determined by the judgment and order of that Court in March 2012.

19. Consequently, I am satisfied that earlier observations in Abimbola do not definitively exclude the application of the doctrine of

issue estoppel to extradition proceedings. The statements of law contained in English decisions are of limited and persuasive authority

in this jurisdiction, and the observations in Auzins relied on by the Minister are far outweighed by the various expressions of the

Supreme Court set out above. Furthermore, as stated by Hardiman J. in Tobin at para.[311], I am satisfied that other persuasive case

law of the United Kingdom in fact sets out the law in a manner similar to that expressed by the Supreme Court in Bolger v. O’Toole. In

Office of the Prosecutor General of Turin v. Barone [2010] EWHC 3004 (Admin), Moses L.J. stated that whilst the mere fact that a

previous request was refused was not of itself a basis for refusing a fresh request for surrender, it did not follow that the previous

consideration of the court of the requested State was irrelevant.

20. The non-applicability of issue estoppel to rulings made in the course of criminal trials for the purpose of subsequent trials as found

by the Supreme Court in Lynch v. Moran [2006] 3 I.R. 389 does not affect this conclusion, depending as it did on features particular

to such trials, including the unitary nature of the trial process, the absence of a right of appeal in respect of rulings, the right to a fair

trial, the presumption of innocence, the right of an accused to examine the witnesses against him, and the practical difficulties in

identifying decided issues in such cases. In this case, the decided issues are clearly set out at length in written judgments of the

Supreme Court. Borrowing from the terms used by O’Donnell J. in Tobin, whether the consequences of the decision on the first

warrant are temporary or permanent is dependent on a precise assessment of the circumstances of each case.

21. I am also satisfied that there is nothing in the application of the principles derived from the law of the European Union to affect

this conclusion. The principle of the finality of judgments is a shared value of the Irish legal system and the EU legal system. The

application in this case is for surrender of the respondent pursuant to the provisions of domestic legislation. The sole European aspect

to this case is essentially secondary in nature, involving the principle of conforming interpretation of a national provision by reference

to an underlying Framework Decision. The European Arrest Warrant legislation represents the choices made by the Oireachtas as to

the domestic implementation of the structure embodied in the relevant Framework Decision. Unlike domestic legislation which

implements the requirements of a Directive, the underlying EU legislative measure in this case is incapable of producing direct effects

after the transposition of the framework provisions into domestic law. The remaining relevance of the provisions of the Framework

Decision is limited to the principle of “conforming interpretation” in relation to the domestic statutory provisions. The limitations of this

principle are expressed in Pupino (referred to below) and by Fennelly J. in Attorney General v. Abimbola [2008] 2 I.R. at para. [37]. A

comparison between a domestic provision and a provision of the Framework Decision can never result in an interpretation of national

law which is contrary to the plain meaning of the national legislative provision. The plain meaning of section 44 of the 2003 Act has

been authoritatively determined by the Supreme Court as a matter of national law, so far as the facts of this or any other comparable

case are concerned.

22. Consequently, I am satisfied that the Minister is estopped from re-litigating the interpretation of section 44 of the Act, or the

application of that interpretation to the same salient facts, by reason of the final and conclusive determination by the Supreme Court

of the same issues between the same parties in the litigation concerning the first arrest warrant. I accept that the Minister is not

seeking to re-open the issue of the validity of the first warrant, but that is not the point. The second warrant is different and must

be assessed individually. However, the Minister cannot point to any relevant change in legal or factual circumstances which would

allow this Court to take a different view of the extra-territoriality issue that also inevitably arises under the new warrant. An assertion

that the majority of the Supreme Court incorrectly decided the previous case does not permit the High Court to proceed to adopt the

minority view. If that were the position, the work of the courts would expand exponentially, and no legal advice could be offered with

any degree of certainty. The fact that the previous s.21A point may have been addressed by the new warrant is irrelevant, and does

not address in any way the continuing application of section 44 as interpreted by the Supreme Court to the same basic facts. (I do

not express any view as to whether the warrant satisfactorily addresses the s.21A issue, as it not necessary to decide that matter at

this time).

23. The prior judicial determination of this issue of fact and of law disposes of the matter for once and for all time, so that it cannot

be raised again between the same parties. An estoppel arises and covers those matters which the prior judgment and order

necessarily established as the legal foundation or justification for the refusal of surrender. The refusal of surrender on foot of the first

warrant was based in substantial part on the interpretation of section 44 as it applied to the relevant personal and factual

circumstances of the respondent. For the purpose of the current application, the same state of fact and law is in issue as in the

previous proceeding, and has necessarily been decided by the prior judgment and order. Consequently, surrender on foot of the

warrant in issue in this case must be refused by reason of the operation of an estoppel on the extra-territoriality issue.

Reference to CJEU

24. In reality, it appears to me that the theme underlying the application for enforcement of rendition on foot of the warrant is a

conviction on the part of the Minister that the majority of the Supreme Court were in error in deciding the previous application in the

manner that they did. Unlike most disappointed litigants, the Minister and his successors had the power to amend the legal position

applicable pursuant to that ruling, if it was genuinely felt that the Supreme Court had incorrectly interpreted section 44 in the light of

the provisions of the Framework Decision, as was submitted by the Minister in this case. No steps have been taken in that direction.

Instead, the Minister now seeks to take advantage of the fact that a reference to the Court of Justice of the European Union

(“CJEU”) in relation to the interpretation of the Framework Decision is now possible from the Irish courts. It is suggested that the

earlier interpretation of section 44 could be overturned, if a preliminary reference to the CJEU resulted in an opinion from the CJEU on

the interpretation of Article 4.7(b) of the Framework Decision suggesting that the Supreme Court was in error in the application of the

principle of conforming interpretation in the previous decision. Therefore it is necessary to consider whether it would be proper to

accede to the suggestion by Mr. Barron that I should facilitate the Minister by adopting that course of action.

25. Article 267 of the TFEU refers to national courts or tribunals obtaining a preliminary ruling on the interpretation of Union law and/or

on the validity of acts adopted by the institutions, bodies, offices or agencies of the Union. I am not satisfied that this case involves

any issue of that kind. What is at issue is the interpretation of the words used by the legislature in enacting a provision of domestic

law. The correct interpretation of that national provision has been has been specifically, finally and conclusively determined in

proceedings between the same parties by a final court of appeal whose decisions are expressed to be “final and conclusive” under the

Constitution. The operation of the doctrines of issue estoppel, abuse of process or precedent are not conditioned upon the premise

that such binding previous decisions are correct; rather they are predicated on the premise that such judgments possess a final and

binding effect. The question of whether the Supreme Court judgment has a conclusive effect under any of the previously mentioned

doctrines is a matter of national law, which I am satisfied would not be susceptible to change by any advice that might subsequently

be received consequent upon a reference to the CJEU. In these circumstances, in terms of Art. 267, I do not believe that such a

reference is required to enable me to give judgment in these proceedings.

26. In addition, as a decision to make a preliminary reference is a matter of discretion as opposed to compulsion, given that the High

Court is not a final court for the purposes of Art. 267, as it is not a court against whose decisions there is no judicial remedy under

national law, I am satisfied that I should not exercise any discretion on my part in favour of referring a question to the CJEU. There

are numerous routes by which the Minister can plot a course from this Court back to the Supreme Court. In circumstances where the

applicant takes issue with the correctness of the judgment of the Supreme Court of March 2012, I believe that that it is for that

Court to decide whether it would wish to revisit the earlier decision for any reason, and whether to refer any question to the CJEU in

that context.

27. It is also not clear that it would be appropriate to make such a reference at this stage of the proceedings, given the political and

legislative history behind the inability of Irish courts to refer such a question until after the end of the transitional provisions of the

TFEU in December 2014. Prior to the signature of that Treaty in December 2009, the CJEU did not have automatic jurisdiction to give

preliminary rulings on the validity and interpretation of framework decisions in the fields of police and judicial cooperation in criminal

matters. Instead, Member States had the option to accept the jurisdiction of the CJEU, and Ireland did not exercise this option after

the Treaty of Amsterdam. After the TFEU, such matters are now subject to the ordinary legislative procedure, and to the jurisdiction

of the CJEU.

28. It appears that McKechnie J. has suggested obiter dicta that judgments of the CJEU in cases referred by other Member States

prior to December 2014 might not be binding on the Irish national courts. In Minister for Justice v. Ostrowski [2013] 4 I.R. 206 at

[101], he stated as follows:-

“101. The general power of the Court of Justice to give preliminary rulings is that as now contained in Art.267 TFEU (ex

Art.234 TEC: ex Art.177 TEC). That power is applied, pre-Lisbon, by virtue of Art.46 of the TEU to any measure adopted

under the provisions of Title VI of that Treaty subject to ‘the conditions provided for by Art.35’, thereof. That article

expressly confers on the court, jurisdiction to give preliminary rulings on the ‘validity and interpretation’ of framework

decisions: however, in order to access the jurisdiction of the court in this regard, a Member State must make the

declaration specified in subpara.2. That is the jurisdictional link between a State and the court. On making the

declaration, a Member State by that act, is empowered on the one hand to seek such a ruling but on the other, as a

corollary, undertakes to accept the court’s jurisdiction which evidently includes the binding nature of the resulting

opinion. There are thus two aspects to the situation. Italy has made the declaration and hence, Pupino, as Belgium has

and hence, Advocaten voor de Wereld. If however no such declaration is made what is the position? If it is accepted

beyond question that in such circumstances no preliminary ruling can be sought, which it is, it is difficult to see how at

the same time the court’s opinion could be compulsorily imposed on such a Member State. In the absence therefore of

some such process by which this might result which has not been identified, this can only mean that in the former

situation, the court’s ruling must be followed, whereas in the latter, no such requirement exists. To suggest that a

similar result follows even in the absence of a declaration does not appear correct. For, if it were so, the entire process

of submission would be nullified, and Member States, without subscription, would be as equally entitled and as equally

bound as those who did subscribe. Ireland has not made the required declaration. Consequently, I do not believe that

the judgment in Pupino is binding on this court.”

29. In the light of these remarks, it seems to me to be desirable that if the Supreme Court decides to revisit this matter, it should also

explore the matters alluded to by McKechnie J. and their possible effect on a reconsideration of the issues in this case. There may be

an issue as to whether a reference to the CJEU would have the effect of defeating the purpose of the previous opt-out, or would be

at the expense of the legal certainty attaching to definitive rulings on the application and interpretation of the EAW Framework

Decision by the Irish courts at a time when they were not subject to the supervisory jurisdiction of the CJEU as a matter of political

choice. In my opinion, if these matters are to be ventilated, it should be in the context of a final and conclusive evaluation of the

matter by the Supreme Court.

30. In summary, I do not consider it necessary to obtain the opinion of the CJEU in order to give judgment on this application. The

basic fact of this matter is that the resolution of the case does not depend on any of the matters set out in Art. 267. It depends on

the settled interpretation of an applicable statutory provision of domestic law, not a possible interpretation of an EU framework

provision that is devoid of direct effect. I am also satisfied that the Supreme Court regarded the decision of the CJEU in Pupino as

binding, and took full account of the relevant provisions of the Framework Decision in the process of adopting a conforming

interpretation of the wording of section 44. I am bound by the conclusions of that Court on this matter as a matter of national law,

and in the absence of any provision of Union law that is capable of directly affecting the outcome on the factual circumstances of the

case, in my opinion there is no question of interpretation or validity of an EU instrument giving rise to the necessity for a reference for

a preliminary ruling in order give judgment in the case. Although the interpretation of section 44 had an EU dimension in that it

involves use of the principle of conforming interpretation, the result of that process of interpretation remains an issue of national law.

Abuse of process

31. Mr. Simons also submitted that these proceedings were an abuse of the process of the court. He suggested that the values of

finality in litigation and the right of litigants and courts to be free from vexatious litigation required the application of this doctrine to

extradition proceedings. He listed a number of reasons as to why these proceedings ought to be regarded as an abuse of process,

including the achievement of finality, the manner in which the previous proceedings were conducted by the then Minister, the wholly

unexplained and inordinate delay connected with the second warrant and this application, and the inadequate response to certain

individual features of this case.

32. Mr. Barron did not deny that there was a jurisdiction to entertain an abuse of process submission in extradition proceedings, but

argued that this application did not constitute such an abuse by reason of the absence of the type of oppressive conduct identified in

Tobin. He pointed to the various favourable presumptions that apply to EAWs and the issuers thereof under the relevant legislation,

and submitted that the Minister had no power to decline to accept or to seek endorsement of a warrant. However, there is a power

to seek further information, and this power was not exercised to any significant extent by the Minister in relation to this warrant. In

effect, he submitted that the Minister does not have a wide margin of discretion in deciding whether to seek surrender when an EAW

is received for execution in this jurisdiction.

33. The case law referred to above also suggests that the principle that litigation may be dismissed as an abuse of process is also

applicable in extradition proceedings, and is closely allied to the doctrine of res judicata. In Minister for Justice v. Tobin (No. 2)

Hardiman J. stated as follows at [318] and [319]:-

“[318] In my judgment in A.A. v. Medical Council [2003] 4 I.R. 302 I referred to the assistance I had derived from an

illuminating article by Mr. Justice Handley of the Court of Appeal in New South Wales, A closer look at Henderson v.

Henderson, (2002) 118 LQR 397. I also made the general observation at p. 317 that:-

‘Rules or principles so described cannot, in their nature, be applied in an automatic or unconsidered fashion.’

[319] I reiterate that. In this case it cuts both ways, so to speak. It is well established that the dismissal on ‘technical

grounds’ of an application for extradition does not constitute a res judicata , so as to prevent a second application in

respect of the same offence. But equally, it cannot be said that that is the whole story: as Bolger v. O’Toole

(Unreported , Supreme Court, 2nd December, 2002) itself indicates, the question of whether or not there has been an

abuse of process in an individual case remains open as does the possibility of claiming relief on the ground of delay. In a

suitable case delay or sheer lapse of time may be part of what goes to make up an abuse of process.”

34. He added to those remarks as follows:-

“[332] I wish to emphasise certain phrases from the cases just cited, firstly the reference in Johnson v. Gore Wood &

Co. [2002] 2 A.C. 1, to ‘the underlying public interest that there should be finality in litigation and that a party should not

be twice vexed in the same matter’. Secondly, the fact that it is unnecessary ‘before abuse may be found, to identify

any additional element such as collateral attack on a previous decision, or some dishonesty …’ (p. 31 of Johnson v. Gore

Wood & Co.). Thirdly, to the need ‘to protect the respondents to successive applications … from oppression’ (p. 2575 of

Woodhouse v. Consignia plc [2002] 1 W.L.R. 2558) and fourthly, the emphasis on the desirability ‘… that litigation should

not drag on forever and that a defendant should not be oppressed by successive suits where one would do’ (p. 2575 of

Woodhouse v. Consignia plc and the important legal value of ‘finality’, so as to provide ‘closure’ for the parties.

[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, and to fair procedures and equality of

arms in litigation, are rights of a constitutional nature and arise fundamentally from respect for the dignity of the human

person. It is salutary to recall the important if general words spoken in this court by O Dálaigh C.J. in The State (Quinn)

v. Ryan [1965] I.R. 70, at p.122:-

‘It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights

should be set at nought or circumvented. The intention was that rights of substance were being assured to the

individual and that the Courts were the custodians of these rights. As a necessary corollary that follows no one

can with impunity set those rights at nought or circumvent them, and that the Courts' powers in this regard are

as ample as the defence of the Constitution requires.’”

35. Hardiman J. went on then to apply those principles to the facts of Tobin.

“[340] In my view, all of the considerations mentioned above are relevant to the present case. I refer particularly to the

proposition that there should be finality in litigation and that 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 for ever; and

that a defendant should not be oppressed by successive suits where one would do. Similarly, I agree that these rules are

rules of justice. They arise with particular force where there is a gross disparity in resources and powers between

litigants; this is seen in this case with particular force because the State waged unending litigation from a bottomless

purse whereas the appellant had to fund himself. Similarly, and for the reasons set out above, I believe that the term

‘ordeal’ is entirely apt to describe what the appellant and his family have been put through in the years since 2000, and

since 2004 in particular, and that the least part of this ordeal is the embarrassment and expense to which the appellant

has been put.

[…]”

36. More recently, in Minister for Justice and Equality v. J.A.T. (No. 2) [2016] 2 I.LR.M. 262, Denham C.J. identified delay as one of a

number of factors to be considered in such a case.

“Time Passing

65. A great deal of time has passed: it is alleged that the appellant committed the offences between 1997 and 2005; the

first warrant issued on 7 March 2008, the judgment of this court in Minister for Justice v JAT (No.1) was delivered on 21

December 2010; the arrest on the second EAW on 24 July 2012; and the hearing of this appeal. The scheme under the

Framework Decision, and the Act of 2003, aspires to be a speeded up procedure. This has not been achieved in this

case. The time which has passed since the alleged offences, the first arrest on the first EAW, the second EAW, and the

hearing of this appeal, is not of itself a factor upon which a request for surrender would be refused. However, this time

period has to be considered in light of all the circumstances of the case.”

37. These words, and their application to the cases concerned, could not be clearer. I am satisfied that an abuse of process

jurisdiction can be invoked in extradition proceedings, although it will arise predominantly in the limited category of cases involving a

second or subsequent request for rendition. The necessity for an applicable abuse of process doctrine is emphasised by the

submissions of Mr. Barron as to the limited nature of the ministerial role in processing EAWs. It is not necessary that I conclude one

way or the other whether those submissions are correct. They are certainly understandable in the context of first applications, where

the efficient operation of the system requires application of the trust, respect and favourable presumptions that underpin the

Framework Decision and the national EAW provisions, as referred to in various decisions of the higher courts. I do not think that such

a detached approach is necessarily appropriate to cases involving a second or subsequent application, particularly where, as in this

case, the first application involved a number or complicated and difficult issues which proceeded as far as a constitutionally final and

conclusive determination by the Supreme Court. If such cases do not receive enhanced scrutiny from the Minister before surrender is

sought, then it is incumbent on the High Court to scrutinise second or subsequent requests closely, to ensure that they do not

constitute an abuse of process.

38. It may be relevant to bear in mind the remarks of Hardiman J. at para. [344] of Tobin, which appear to caution against a “slavish”

approach to the perceived need to conform to surrender obligations. In such circumstances, it might be thought that there would be

an additional margin for consideration of the wisdom or propriety of invoking a further surrender process or, at a minimum, as to

whether the court has been provided with all relevant information as to developments since the first surrender process terminated.

Accordingly, as this is a second warrant case with unusual and complex features, it is proper to examine the individual features of

both processes, in the light of the submission that the current application amounts to an abuse of process.

39. Firstly, it is relevant to note that the parties to these proceedings received a binding and conclusive decision of the Supreme

Court on the extra-territoriality issue in the previous proceedings. Secondly, a further period of over five years has passed since the

date of this determination. It is now twenty-one years since the crime in question was committed and seven years since the first

warrant was issued. Over four years passed from the date of Supreme Court ruling to the issue of the new warrant. Apparently

neither the Minister nor the requesting authorities considered it appropriate to furnish any information by way of explanation for the

elapse of this period of time. I do not know when or why Mr. Bailey became regarded by the requesting authorities as having moved

from the status of being a suspect to that of being a person required for prosecution. It might have been relevant in this case to

know, for example, whether it was reasonably possible for the French authorities to have issued a fresh warrant for Mr. Bailey prior

the coming into force of certain legal provisions arising from the Treaty on the Functioning of the European Union (“TFEU”) at the end

of December 2014, which provide the route which the Minister now wishes to travel in this case. The period of further delay in this

case since 2012 has nothing whatsoever to do with Mr. Bailey, and has not been explained or detailed adequately, or at all.

40. Thirdly, there has also been no engagement by the Minister or the requesting authorities with the unusual fact in an extradition

case that the allegations the subject matter of the request and the alleged involvement of the requested person have been

comprehensively and repeatedly investigated and considered by the police force and prosecuting authorities of the requested State.

The Director of Public Prosecutions has concluded long ago that there is no basis for either charge or trial on this matter in this

jurisdiction, and unusually, a comprehensive statement of reasons for this prosecutorial decision came into the public domain during

the previous Supreme Court proceedings. Neither the warrant nor the application for surrender pursuant thereto engages with this

situation at all. It is simply suggested by the Minister that such matters are not relevant to the surrender request. I am unable to

share this sanguine viewpoint. If no consideration was given to the relevance of these highly unusual circumstances before the court

process was invoked, this was a significant omission bearing on the abuse of process issue. In effect, proceedings were issued for the

involuntary surrender of a person entitled to the protection of our laws and Constitution for trial and the possible imposition of a

prison term of up to 30 years, ignoring or regarding as irrelevant that fact that the domestic legal process has comprehensively

determined that the allegation giving rise to the request cannot be supported to the extent of justifying the preferment of a charge,

let alone trial and conviction. I believe that I am entitled to regard this highly unusual state of affairs as a contribution to a finding of

abuse of process in this case.

41. Fourthly, even if it were subsequently decided that the Supreme Court had incorrectly decided the extra-territorial issue, it is

highly debatable whether these proceedings could result in the rendition of Mr. Bailey, and the forfeiture of the benefit of the earlier

ruling in his favour. In A. v. Governor of Arbour Hill Prison [2006] 4 I.R. 88 at 117, Murray C.J. stated as follows:-

“[36] Judicial decisions which set a precedent in law do have retrospective effect. First of all the case which decides the

point applies it retrospectively in the case being decided because obviously the wrong being remedied occurred before

the case was brought. A decision in principle applies retrospectively to all persons who, prior to the decision, suffered

the same or similar wrong, whether as a result of the application of an invalid statute or otherwise, provided of course

they are entitled to bring proceedings seeking the remedy in accordance with the ordinary rules of law, such as a

statute of limitations. It will also apply to cases pending before the courts. That is to say that a judicial decision may be

relied upon in matters or cases not yet finally determined. But the retrospective effect of a judicial decision is excluded

from cases already finally determined. This is the common law position.

[37] Only a narrow approach based on absolute and abstract formalism could suggest that all previous cases should be

capable of being reopened or relitigated (even if subject to a statute of limitations). If that absolute formalism was

applied to the criminal law it would in principle suggest that every final verdict of a trial or decision of a court of appeal

should be set aside or, where possible, retried in the light of subsequent decisions where such subsequent decision could

be claimed to provide a potential advantage to a party in such a retrial. In principle both acquittals and convictions could

be open to retrial. But one has only to pose the question to see the answer. No one has ever suggested that every time

there is a judicial adjudication clarifying or interpreting the law in a particular manner which could have had some

bearing on previous and finally decided cases, civil or criminal, that such cases be reopened or the decisions set aside.

[38] It has not been suggested because no legal system comprehends such an absolute or complete retroactive effect

of judicial decisions. To do so would render a legal system uncertain, incoherent and dysfunctional. Such consequences

would cause widespread injustices.”

On the authority of this statement, where the underlying statutory position has not been amended, it may well be that the judgment

in Bailey (No. 1) must be treated as final and conclusive as between the parties even were it to later transpire, for whatever reason,

that the judgment was wrongly decided. I am satisfied that the final determination of Mr. Bailey’s case on the section 44 point, even

if subsequently considered erroneous in law, would still be a bar to these further proceedings. I am further satisfied that this

determination gave Mr. Bailey an acquired or accrued right not to be surrendered on this basis, and nothing has occurred in the

interim to deprive him of that right.

42. Fifthly, as a further consideration in this analysis I have considered the account in the official law report of the conduct of the

first proceedings before the Supreme Court by the Minister of the day in 2012. In the first instance, the Minister apparently opposed

the application for leave to appeal from the initial decision of the High Court, when it seemed obvious that the litigation involved

exceptional points of law of public importance. It is clear from the judgments of the Supreme Court that In the course of the appeal

the Minister was in great difficulty on his own evidence on the point as to whether the first warrant was obtained for the purposes of

trial. He nonetheless invited the Supreme Court to reach a conclusion on three matters, including the interpretation of section 44,

even though there must have been an obvious risk that Mr. Bailey’s appeal was going to succeed on the point concerning the purpose

of the first warrant: see the account of the proceedings set out in the judgment of Hardiman J. In my view, having invited the

Supreme Court to determine the section 44 issue one way or the other, his successor cannot now seek to disown the unfavourable

conclusion specifically pursued in these circumstances over five years ago. The Minister is now bound by the consequences of the

tactical decisions made by her predecessor in the conduct of the earlier litigation. The tactical decision to proceed on all fronts,

notwithstanding manifest difficulties on the section 21A point, makes the current position of the Minister untenable. It is not open to

the Minister to seek to revisit the matter in this Court in these circumstances.

43. These proceedings amount to no more than a belated and direct challenge to that outcome. If the Supreme Court wish to revisit

this matter at some future time, that is a matter solely for that Court. In the absence of any material change of circumstances since

that previous decision, and unless and until the Supreme Court agrees with the Minister that it fell into error in the manner in which

section 44 was interpreted, I cannot regard the prosecution of proceedings in such circumstances as other than an abuse of the

process of this Court. In my opinion, the combination of factors identified above result in the conclusion that this application should

also be dismissed as an abuse of process. Such a conclusion will not be reached lightly in extradition litigation, but the unique

features of this case justify termination of the process on this basis at this time.

Precedent

44. Even if I am not correct in any of the foregoing conclusions, I am also satisfied that the application of the doctrine of precedent

also disposes of this matter in favour of the respondent. The principle of stare decisis embodies the premise that earlier decisions

must be followed, particularly when a lower court is faced with a final and conclusive decision of a higher court on the same point.

The binding force does not depend on the same persons being party to the litigation, but depends on the hierarchical organisation of

our courts system. The principle that the High Court must follow the Supreme Court is so long established that it rarely requires

expression: see The State (Harkin) v. O’Malley [1978] I.R. 269, McDonnell v. Byrne Engineering, Supreme Court, unreported, 4

October 1978. The requirement to follow arises even where it is generally believed that the binding decision is erroneous, and will

subsequently be overruled by the Supreme Court: see O’B v. Patwell [1994] 2 ILRM 465, The People (D.P.P.) v. Rock [1994] 1 ILRM

465.

45. This position reflects a trade-off between the need for certainty in the legal system and the desirability that similar cases are

treated equally, as against the ability to respond to the requirements of justice as perceived in the individual case. Accordingly, I am

satisfied that the binding effect of the decision of the Supreme Court on the legal issues goes beyond the parties to or facts of that

case. The High Court would be bound to follow the decision on the interpretation and application of section 44 in the admittedly

unlikely event that it was confronted with a surrender request in identical circumstances involving somebody other than the

respondent. In circumstances where the Supreme Court has ruled definitively on a legal point, as it has here, it is only for that Court

to decide that it may be overruled, and even then such an effect is prospective only, and res judicata may well prevent the earlier

matter being revisited in any event. The applicant may subsequently persuade the Supreme Court to revisit the interpretation of

section 44 on an appeal from this decision, but I do not consider that there are any grounds for distinguishing or otherwise avoiding

the current legal position as expressed by the Supreme Court, irrespective of any personal opinion that I may hold as to which of the

views expressed by the various members of Supreme Court were correct. That is the essence of the operation of the doctrine of

precedent in a hierarchical court system.

Conclusion

46. The surrender of the respondent is refused on the basis that the Minister is estopped from obtaining such an order by the

judgment and order of the Supreme Court in the previous proceedings, which depended in substantial part on the interpretation and

application of section 44 of the Act to identical relevant facts. It is also refused because in the unique circumstances of this case,

the prosecution of further proceedings seeking surrender on the fresh warrant constitute an abuse of process. Lastly, surrender is

precluded because of the general precedential effect of a final and conclusive Supreme Court decision on the High Court in deciding a

subsequent case involving identical facts, whether or not the parties to the case are identical.

47. The effect of this judgment is limited to the matters arising on this application that are expressly addressed herein. As it is

possible that the Minister might subsequently persuade the Supreme Court to change direction on the interpretation of section 44, in

that event there may well be outstanding factual and legal matters requiring decision at first instance. I am willing to retain seisin of

any such residual matters arising from the current application, and will therefore give liberty to each side to apply in this matter.

Addendum

48. After this judgment was delivered, the case was adjourned to 31 July 2017 for such further submissions as may be required.

Pending the adjourned hearing, certain public statements and comments have led me to believe that it necessary to clarify the basis,

extent and meaning of the “abuse of process” finding. It is also necessary to clarify where the Minister has obligations in this process,

and where he has options. Lastly, there is one statement in the judgment that, in retrospect, requires amendment. Consequently, I

have decided to append an addendum to the judgment. I will start by setting out the separate and distinct elements in the processing

of a European Arrest Warrant under the provisions of the Act of 2003 (as amended), both generally and as they applied to the

warrant in this case.

The European Arrest Warrant procedure

49. The first step in the process is the receipt by the Central Authority (the Minister) of a request for the surrender of a named

individual embodied in a European Arrest Warrant in the appropriate form. I fully agree that receipt of a European Arrest Warrant by

the Central Authority transmitted to it in accordance with s.12 of the Act obliges the Minister to apply or cause an application to the

High Court for the endorsement by it of the European Arrest Warrant, or a true copy thereof, for execution of the European Arrest

Warrant concerned.

50. The Minister of the day fully and completely discharged this statutory duty. I was nominated to deal with this matter, and sat by

arrangement to deal with the Minister’s application for endorsement and execution under s. 13(1). The Minister took the unusual step

of suggesting that Mr. Bailey be notified of this application. I agreed with the Minister that the unusual nature of this case justified

taking the extraordinary step of putting the subject of a European Arrest Warrant on notice of the presentation of a warrant for

endorsement for execution. Having considered the matter, notwithstanding the existence of the previous Supreme Court decision in

favour of Mr. Bailey, I believed that I was obliged to receive and consider the second warrant in the matter, and as it appeared to me

that the warrant complied with all necessary statutory formalities, I also agreed with the Minister that it was my obligation to endorse

the new warrant for execution, with the further inconvenience that this entailed for Mr. Bailey. Consequently, it can be seen that I

both facilitated and actively approved of the actions of the Minister under s.13(1) of the Act.

51. Under no circumstances could I have found that this obligatory step constituted an abuse of process by the Minister. However,

the concept of “endorsement for execution” of a warrant should not be conflated with the separate and distinct concept of whether

a warrant so endorsed and executed should result in the “surrender” of the individual the subject matter thereof. Had I been of the

belief that the mere presentation of the warrant for endorsement and execution under s.13(1) constituted an abuse of process on the

part of the Minister, I would have expressed that at that time, and in no uncertain terms.

52. “Endorsement” consists simply of the High Court judge signing the original warrant or true copy, and handing it back to the Central

Authority for execution by the relevant section of An Garda Síochána. As with any other type of warrant, “execution” signifies only

the process by which the member of An Garda Síochána to whom the warrant is directed locates and arrests the individual concerned,

and brings them back before back before the High Court in accordance with directions contained in the warrant. “Endorsement and

execution” pursuant to s.13(1) has nothing whatsoever to do with the issue as to whether or not such an individual ought to be

subject to subsequent “surrender” to the requesting authority on foot of a warrant so endorsed and executed. They are separate and

distinct legal acts and concepts in this context.

53. When the individual concerned is brought before the court on foot of execution of an endorsed warrant, as Mr. Bailey was in this

case by arrangement, he or she may be admitted to bail or remanded in custody. In this case, bail terms were readily agreed between

the parties. The focus then turns to the individual who is before the court on the executed warrant. In these circumstances, it is the

obligation of the court to fix a hearing for the purposes of considering whether to “surrender” the person concerned under s.16 of the

Act. This is the hearing that will decide whether or not the person is to be surrendered, not that relating to the mandatory application

for endorsement and execution under s. 13(1).

54. At that point in the process, the person named in the warrant may elect to submit to voluntary surrender to the requesting

authorities. For entirely understandable reasons, Mr. Bailey declined to avail of that option in this case. Instead, his solicitor and

counsel lodged detailed grounds of objection to his surrender, which were the grounds ventilated at the subsequent s.16 hearing over

a number of days. Where a person does not consent to his or her surrender to the issuing date, the High Court then inquires as to

whether it “may make an order” under s.16 directing that the person be surrendered to such other person as is duly authorised by

the issuing State to receive him or her, which will happen provided that the High Court is satisfied that such surrender is not

precluded by certain statutory conditions.

55. As has been noted in this case, and in many other cases, the inquiry conducted by the High Court under s.16 of the Act is not an

adversarial contest, although this inquiry often acquires adversarial trappings, as it did in this case. Once the matter is before the

High Court for the purpose of the hearing under s.16, I can see nothing in the terms of that section which obliges the Minister to take

a particular or any stance in relation to the outcome of that inquiry. It appears to me to be open to the Minister to argue in support

of surrender, to indicate a view that surrender may not be appropriate, adopt a neutral stance and leave the matter to the

determination of the High Court in accordance with the terms of section 16, or to express such other position on the issue as is

deemed proper. Indeed, I have had personal experience of dealing with warrants where the Central Authority presented the warrant

under s.13(1), but then signalled that it was not encouraging the court to proceed further due to some perceived problem with the

warrant in issue.

56. In this case, by means of both written and oral submissions, the Minister positively advocated a complex and protracted course of

action designed to remove the obstacle of the previous Supreme Court decision, with the ultimate objective of securing the

involuntary rendition of Mr. Bailey to the authorities in France. I emphasise that I have no quarrel with the clear exercise of the

prerogative of the Minister to make such a suggestion in the course of s.16 inquiry. However, exercise of this prerogative was a

matter of choice, not of compulsion, and a full range of options were available to her in this respect. However, I did not agree with

the substance of the submissions of the Minister during the s.16 hearing. If I am in error in this disagreement, no doubt I will be

corrected elsewhere.

57. After the execution of a warrant, “surrender” of a person requested for trial or sentence is solely a matter for the High Court, to

be determined within the context of the provisions of s.16 of the Act, and such submissions as may be made by the parties, in the

same way that decisions as to “endorsement and execution” are exclusively within the province of the Minister. Just as the Minister

was fully entitled to exercise her right to argue for her preferred outcome to the s.16 inquiry, it was the equal right of Mr. Bailey to

invoke the “abuse of process” principles enunciated in various previous Supreme Court decisions. I believe that given the close

relationship or alliance between this doctrine and that of res judicata, it was reasonable and necessary to determine both of these

legal issues in resolving this matter.

Abuse of process and “mala fides”

58. I believe that it is also necessary to emphasise that a finding of abuse of process does not express or imply that the Minister

acted with mala fides or bad faith, which may be a factor in analysing circumstances to determine whether or not there has been an

abuse of process. It is not a factor in this case. 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.”

59. There was clearly no bad faith or any impropriety whatsoever on the part of the Minister in the exercise of her obligations under

s.13(1) and I made no criticism of her in that respect. The allegation of “abuse of process” was raised by Mr. Bailey in the context of

the s.16 inquiry, at a point where the Minister was no longer under a mandatory obligation to follow any particular course of action in

relation to an inquiry that was then the responsibility of the High Court. My comments and finding arose solely in that context. The

active advocacy in favour of surrender by the Minister was unnecessary and incorrect (at least in my view), and undoubtedly tended

to oppress Mr. Bailey in all of the circumstances of the case. It was, however, no more than a minor contributor to the finding of

abuse of process.

60. I remain satisfied that the combination of factors identified above compel a finding of abuse of process in this case. I emphasise

that there is nothing in the terms of s.13 of the Act that obliged the Minister to adopt an active or any course of action in the

subsequent and separate s.16 inquiry. The finding of abuse of process rests in large part on the activities (or inactivity) of the French

authorities, the very particular litigation history of the case, the approach of a previous Minister to the earlier appeal, excessive and

unexplained delay, and in much smaller part on the voluntary approach of the Minister to the present s.16 inquiry. This finding has

nothing to do with the proper discharge by the Minister of her obligations under s.13(1) of the Act in relation to the second warrant in

this case.

61. I specifically refer back to para. 37 of this judgment, in which I referred to the desirability of second warrant cases receiving

enhanced scrutiny by the Minister “before surrender is sought”. The word “surrender” was used deliberately and in context. I did not

suggest that the Minister should have declined to seek endorsement and execution of the second EAW in this case. This was not an

option that was open to her. No criticism attaches to the Minister up that that point. It arises in regard to the approach taken and

arguments advanced thereafter.

62. In this context, it seems to me that that the words “before the court process was invoked” used in para. 40 do not represent the

correct position, and I am happy to also clarify this matter. It is not obligatory for the Minister to consider the general history of the

warrant at any stage, and certainly not before discharging the obligation to present the warrant for “endorsement and execution”.

However, in my view, it would nonetheless be prudent to examine and consider the history and circumstances of a second warrant

application before the Minister reaches a decision that it is appropriate to actively advocate surrender at the surrender inquiry that

follows the execution of the warrant. Otherwise, there is the danger that such an argument can contribute to an abuse of process

finding, as it did in this case. So, to represent the correct position, the phrase above should read “before actively arguing in favour of

actual surrender at the s.16 inquiry”.

63. The Minister was not obliged to actively canvass the forcible rendition of Mr. Bailey. She exercised the option to advocate this

course of action, no doubt in good faith, but on a conspectus of the circumstances and history of the case which, in my opinion, was

excessively narrow and legally unsound. Such criticism as is expressed in the judgment arises solely on this narrow issue.

Approved

31 July 2017