Hungary’s second attempt to extradite Ciarán Tobin — to serve a sentence for his role in the accidental deaths of two children — has failed. This time, his appeal split the Supreme Court 3-2. It’s a remarkable result in an emotive case. The European Arrest Warrant Act, as amended in 2009, would ordinarily mandate extradition in these circumstances. The crucial fact is that Mr. Tobin previously succeeded in resisting extradition (in the case now known as Tobin (No 1)) on the ground that he didn’t “flee” Hungary. The law has since been amended to remove the “fleeing” requirement, but the Supreme Court has ruled today that the new law can’t be applied to Mr. Tobin himself. The majority found that extradition would be an abuse of process (two of the three judges) or inconsistent with the proper interpretation of the statutory amendment (two of the three judges).
Each of the three judges in the majority gave his own judgment: Judge Hardiman’s judgment is here; Judge Fennelly’s judgment is here; Judge O’Donnell’s judgment is here. I had a quick look and selected some choice quotations.
The Fennelly concurrence places the decision on narrow grounds (paragraph 19):
I would confine the decision on abuse of process to the special and unique circumstances of this case. There was an Arrest Warrant; the appellant was arrested and taken before the Court; he opposed his surrender through the judicial process in accordance with the law. He succeeded. It was not then suggested that the law was erroneous. The appellant had no reason to expect that it would be changed, if he successfully invoked its provisions. The law was changed. His surrender was sought a second time. I would allow the appeal and decline to order the surrender of the appellant.
In a guarded judgment, Judge O’Donnell rejects the use of the general doctrine of abuse of process in this case (paragraph 48):
To apply such a non-specific concept of abuse in such circumstances, would risk introducing very considerable uncertainty, itself inconsistent with the requirement that law should be of general application, intelligible, and predictable. In my judgment it is sufficient to say that even assuming for the moment that the court’s jurisdiction to prevent abuse of process can apply in a context such as the present I am satisfied that the matters relied upon on behalf of Mr. Tobin cannot either individually or cumulatively constitute such abuse.
Judge O’Donnell rested his decision instead on statutory interpretation grounds (paragraph 78):
In this case of the Act of 2009, language of general application is used. No differentiation is made between the different classes of person who might conceivably be subject to the now amended legislation. In such circumstances it cannot be said that a specific intention can be discerned from the legislation that, while eschewing any intention to target Mr. Tobin personally, it was intended that Mr. Tobin should be subject to surrender. In such circumstances it is the proper application of the presumption contained in s.27(1)(c) of the Interpretation Act 2005, (itself a recognition of the proper interaction of the different organs of government in the making and interpretation of legislation), to hold that it has not been demonstrated that the Oireachtas has expressed any clear intention that the right which was acquired by or accrued to Mr. Tobin on the decision in Tobin (No.1) was to be removed.
Judge Hardiman’s judgment couldn’t be described as either narrow or guarded. The judge brings his considerable rhetorical skills in support of Mr. Tobin, “an Irish citizen of unblemished character who not merely has no previous convictions, but has had a distinguished career in an Irish public company” … and so on. Moreover, Judge Hardiman evidently doesn’t think much of how the Hungarian legal system operated in this case. (As he more or less admits, that isn’t really supposed to matter under the European Arrest Warrant system). Finding an abuse of process, Judge Hardiman sums up his conclusion in the following way (he doesn’t use paragraph numbers):
Firstly, it is an entirely unique case without precedent in this country. Secondly, it manifestly occupied a period of time which is on any view excessive. Thirdly, when the reasons for this immensely prolonged course are examined they turn out to be wholly the responsibility of the applicant for Mr. Tobin’s surrender to Hungary. The circumstances in which very lengthy proceedings were launched and continued, which are now agreed to have been unstateable having regard to the term of the Act, have not in my view been fully explained. I am sure that the authorities are not motivated by any form of personal spite or ill will against Mr. Tobin. But I cannot acquit them of a desire to be seen to be almost slavish in conforming with the obligations of a subscriber to the Framework Document, and a member of the European Union, as they conceive them to be. It is this attitude, it appears to me, that has rendered them willing to extradite or deliver Irish people, or people who happen to be in Ireland, to other countries who would not deliver their own citizens if the positions were reversed. It has also rendered them gravely insensitive to the human rights of a person in the position of Mr. Tobin and his family. I consider that these latter have been unfairly and largely unnecessarily subjected to oppression and “ordeal”, that the principal reason for this – the institution and maintenance of the Tobin 1 proceedings – has never been satisfactorily explained. These present proceedings are, in my view, an abuse of process and I would decline to order the surrender of Mr. Tobin to Hungary on that account.
Judge Hardiman also agrees with Judge O’Donnell’s statutory interpretation point, and, for good measure, provides a third ground for refusing extradition: inconsistency in the Hungarian documents about the length of Tobin’s sentence.
The Chief Justice and her predecessor, Judge Murray, both dissented from the decision. The Chief Justice’s judgment is available here. As is typical of the Chief Justice, she mostly refrains from counter-rhetoric. All the same, it’s interesting to note a difference in how dissenting and majority judgments begin. The Chief Justice starts by saying that “Ciarán Tobin was driving a car which went up on the sidewalk and two small children were killed”. All three majority judgments begin by describing the incident as an “accident”.
Tobin may now regret that he elected to spend time in an Irish prison while this extradition request was pending, so as to reduce the amount of time he would have had to spend in a Hungarian prison had he lost today. On the other hand, it’s possible that, in this very close case, the majority’s judges were swayed by the fact that, to some extent, Tobin was willing to suffer some punishment — as well as by the fact that he is a “respectable” (middle class) “family man”.
UPDATE: Judge Murray’s dissenting judgment is available here. To some extent, he puts the opposing rhetorical case (paragraph 9):
The fact that this is a second application for the surrender of the appellant, who over the years has resisted and refused to comply with the order and sentence of a court of trial at which he was legally represented on his own instructions, does not in my view, and for the reasons set out in the judgment of the Chief Justice, give rise to valid grounds for refusing his surrender …
[On the statutory interpretation point:] the purpose of the amendment is to bring the legislation in full conformity with the Framework Decision. It was remedying a breach of obligation by the State for all future cases. I think it is manifest that the Act did not intend to only partially remedy the State’s failure to observe its obligation in this context.