The Supreme Court has allowed Patrick O’Toole’s appeal against a High Court order for Peter Bolger’s release, concluding that the circumstances did not make his delivery to England unjust, oppressive or invidious. It nevertheless ordered Bolger’s release insofar as extradition was sought for three forgery offences, which the court found did not correspond to an offence under Irish law.
The judgment, delivered by Mr Justice Fennelly on 17 June 2008, dealt with two connected appeals under Part III of the Extradition Act 1965. O’Toole, an Assistant Commissioner of the Garda Síochána, challenged the High Court’s release order based on lapse of time. Bolger challenged the dismissal of his judicial review application against a District Court order directing his delivery to England and Wales.
The High Court had directed Bolger’s release under section 50(2)(bbb), while rejecting his argument that the forgery offences lacked correspondence with Irish law. The Supreme Court considered both issues. It held that the English convictions for making false documents with intent to induce someone to act to their or another person’s prejudice did not establish the intent to defraud required for the corresponding Irish forgery offence. Bolger therefore could not be delivered to serve the sentences imposed for those three offences.
On lapse of time, the court accepted that the period from Bolger’s conviction in April 1995 to the High Court hearing amounted to ten years and was exceptional. It also accepted that unexplained periods of delay between 1995 and 1998 were exceptional circumstances. But it considered those delays in the context of the full history, including more than four years taken up by Bolger’s unsuccessful legal proceedings. The court did not regard his illness as an exceptional circumstance on the evidence before it, and said the sentence length—limited to two years after the forgery sentences were excluded—did not justify release. It concluded delivery was not unjust, oppressive or invidious, and allowed O’Toole’s appeal against the release order.
The Supreme Court dismissed Bolger’s separate judicial review appeal and affirmed the High Court order. It rejected his arguments that delivery would breach his rights because he had been medically unfit to attend the end of his English trial, and that his extradition proceedings had not been heard within a reasonable time. The court noted that the District Court had considered oral evidence about his health and had no jurisdiction to refuse delivery on delay grounds.
The order was therefore limited: the District Court delivery orders stood for the convictions other than the three forgery offences, while Bolger was to be released in respect of those offences.