The Supreme Court should decline to surrender Ciarán Tobin to Hungary under a second European Arrest Warrant, Justice Fennelly said in a concurring judgment delivered on 19 June 2012. He agreed with the appeal succeeding on the ground of abuse of process, while disagreeing with parts of Justice Hardiman’s reasoning.
Tobin had been convicted by a Hungarian court over a traffic accident in which two children died. His first challenge to surrender succeeded because Irish law at the time required a person to have “fled” the requesting state. The Supreme Court had ruled that this requirement was not met. The law was later amended to remove it, and a Hungarian judicial authority issued a fresh warrant that was substantively the same as the first.
Justice Fennelly said he did not accept that the Supreme Court could revisit or question the correctness of the Hungarian court’s judgment. He also disagreed with criticism of that court and said whether Tobin was guilty was not a matter for the Irish court. In his view, the case did not establish the kind of fundamental defect in a requesting state’s justice system that could justify refusing surrender on human-rights grounds.
His agreement with allowing the appeal rested instead on the unusual sequence of proceedings. Tobin had opposed surrender through the process provided by Irish law and succeeded. The legislation was then changed, exposing him to a second arrest, objection, High Court hearing and appeal. Justice Fennelly said the resulting hardship, expense and distress were not Tobin’s responsibility, and distinguished the case from repeat proceedings caused by a defect in a warrant.
Justice Fennelly was not convinced that Tobin had acquired a legal right under section 27 of the Interpretation Act 2005 that survived the amendment. He said, however, that Tobin had enjoyed protection from surrender until the law changed. He also said inequality of arms added nothing to the case and that delay was not a ground for refusing surrender on these facts.
He would confine the abuse-of-process decision to the case’s “special and unique circumstances”. The judgment records that the appeal should be allowed and that surrender should not be ordered; Justice Fennelly’s opinion does not establish a broader rule for later cases.