Minister for Justice v O'Kane/McNicholl - European Arrest Warrant

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  Minister for Justice Home Affairs and Migration v O'Kane/McNicholl (Approved) [2026] IECA 53 (16 March 2026)

URL: https://www.bailii.org/ie/cases/IECA/2026/2026IECA53.html
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[2026] IECA 53 | | |
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APPROVED

NO REDACTION NEEDED

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THE COURT OF APPEAL

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Record Number: 2025/181

Record Number: 2025/182

Neutral citation number: [2026] IECA 53

Edwards J.

Burns J.

Owens J.

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IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003

Between/

MINISTER FOR JUSTICE HOME AFFAIRS AND MIGRATION

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Applicant/Respondent

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S?AMUS CHRISTOPHER O'KANE

Respondent/Appellant

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and

Between/

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MINISTER FOR JUSTICE HOME AFFAIRS AND MIGRATION

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Applicant/Respondent

-AND-

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JOHN EDWARD ANTHONY MCNICHOLL

Respondent/Appellant

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JUDGMENT delivered by Mr. Justice Alexander Owens on the 16 th?day of March ?2026.

1. These appeals raise issues relating to the legal consequences of delay by authorities in an issuing state in seeking surrender of a person on an arrest warrant governed by the provisions of the European Arrest Warrant Act 2003 (the 2003 Act).

2. John McNicholl and S?amus O'Kane are contesting applications by the Minister for Justice, Home Affairs and Migration (the Minister) that they be surrendered to persons duly authorised by the United Kingdom to receive them to stand trial in Northern Ireland for offences allegedly committed in 1975 and 1976.

3. TCA arrest warrants relating to John McNicholl and S?amus O'Kane were issued by a magistrate in Belfast on 26 April 2024.

4. The TCA arrest warrant relating to John McNicholl alleges that he murdered Constable Robert McPherson and attempted to murder Constable William Elliott on 26 July 1975 at Dungiven in County Londonderry, and that he committed four offences involving possession of explosive substances, firearms and ammunition, contrary to provisions of the Explosive Substances Act 1883 and the Firearms Act (Northern Ireland) 1969 on 16 February 1976 at Garvagh, County Londonderry.

5. This TCA arrest warrant discloses that the victims of the shooting at Dungiven on 26 July 1975 were police officers who went to investigate a report of men acting suspiciously. It asserts that Constable McPherson intercepted one of those men as he was coming out of the Post Office and led him towards a police car. Two other men then began shooting. Constable Elliott was struck by seven bullets. He went into the Post Office to get help. While he was in the Post Office he heard more shots. A bystander observed Constable McPherson struggling with a man who appeared to shoot him and to take his service pistol. Constable McPherson was on the ground when Constable Elliott emerged from the Post Office. He had been struck by three bullets which killed him.

6. The TCA arrest warrant relating to S?amus O'Kane alleges that he committed offences, identical to those charged against John McNicholl, involving possession of explosive substances, firearms and ammunition at Garvagh on 16 February 1976,.

7. The elements of the TCA arrest warrants relating to the offences alleged to have been committed at Garvagh assert that a farmhouse was searched on 16 February 1976. Explosive substances in the form of detonators, along with firearms and ammunition were found in that house. Materials found in the course of this search included pressure-plates capable of being used in booby-trap bombs. The firearms ?included Constable McPherson's service pistol. Three of those firearms had been discharged during the shooting in Dungiven. During this search, John McNicholl and S?amus O'Kane were found hiding in an upstairs room of the house, along with another male. The TCA arrest warrants also assert that John McNicholl and S?amus O'Kane accepted responsibility for the explosive substances, firearms and ammunition found during that search.

8. The High Court decided that John McNicholl and S?amus O'Kane should be surrendered to Northern Ireland to stand trial for the offences charged in the TCA arrest warrants.

9. These appeals are on foot of certificates by the High Court pursuant to s.16(11) of the 2003 Act that its decisions involve points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this Court. They relate to the judgments delivered by the High Court on 20 March 2025.

10. The certified points of law which relate to the decision to surrender S?amus O'Kane are as follows:

I. Can a lapse of time of 48 years by [the issuing state] in seeking surrender of a respondent to stand trial for serious offences amount to an abuse of the process of the Irish courts or amount to oppressive litigation in circumstances where: (i) there has been an explanation on the part of [the issuing State] for some, but not all, of the passage of time since the alleged offences were committed, and (ii) the respondent has lived openly in this jurisdiction and built a family life in the intervening years?

II. Does the omission of [the issuing State] to seek the surrender of the respondent in 1977/1978 for all offences in respect of which a decision to prosecute him had been made in Northern Ireland, including in particular the offences which are the subject of the current Trade and Cooperation Agreement warrant, constitute a factor to be taken into account in considering whether the present request for surrender might constitute an abuse of process in circumstances where: (i) there has been a passage of 48 years since the commission of the alleged offences set out in the present TCA arrest warrant, (ii) it has been approximately 47 years since the earlier unsuccessful extradition application seeking his surrender from the State for offences of murder and escape from lawful custody in 1977/1978?

1. The certified point of law relating to the decision to surrender John McNicholl is identical to the first of the two certified points of law arising from to the decision to surrender S?amus O'Kane.

2. The answers to both of these questions are " no ", ?in the factual circumstances applicable to these appeals.

3. The answer to the first certified question is governed by EU law in the case of surrenders under the 2003 Act. The 2003 Act, as amended, gives effect to the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) (the Framework Decision), the EU-Iceland Norway Agreement and the relevant part of the EU-UK Trade and Cooperation Agreement of 30 December 2020 (the TCA).

4. Poor administration or maladministration by authorities within an issuing state may result in delay in instigating prosecutions and in initiating proceedings for surrender from abroad of persons to face trial. These deficiencies in administration may also result in delay in enforcement of sentences and in initiating proceedings for surrender from abroad of persons to serve those sentences.

5. Delay caused by such maladministration does not of itself make an application for surrender an abuse of the process of the executing judicial authority. However, a ?consequence may be an attempt to hide the true explanation for the delay. This may lead to refusal by an issuing state to cooperate with the executing judicial authority.

6. It is not the function of executing judicial authorities to make subjective decisions on whether they should excuse delays in advancing prosecutions or seeking surrender of persons for prosecution as part of their assessment of whether to give effect to arrest warrants issued under the EU and international arrangements which underpin surrender procedures governed by the provisions of the 2003 Act.

7. The Irish executing judicial authority must assess whether the effects of passage of time caused by poor administration or maladministration on fundamental rights of the person sought, as recognised by EU law, are such as to override the competing public interest in enforcement of the surrender system. This will usually involve the application of a proportionality test.

8. If it could be demonstrated that the issue of a TCA arrest warrant or an European arrest warrant involved a breakdown in the system of justice in an issuing state of the sort which deprives the right of due process in the surrender system to a person whose surrender is sought, that would be a different matter.

9. Abuse of process involves misuse by an issuing state of the process of the executing judicial authority. This takes place where, by happenstance or design, an issuing state engages in conduct which undermines the integrity of the surrender process. Executing judicial authorities are obliged to uphold the integrity of this process. Examples of abuse of process are refusals to cooperate with the executing judicial authority, or provision of false or misleading information to that authority, or use of the process for improper purposes.

10. S?amus O'Kane advances a number of grounds of appeal. Most of these grounds assert that the legal effect of proceedings, and an order of the High Court on 3 April 1978 for his release under s.50 of the Extradition Act 1965 (the 1965 Act), should operate as some form of quasi-estoppel to his being surrendered from the State to Northern Ireland for the Garvagh offences charged in the TCA arrest warrant.

11. He asserts that the learned High Court judge erred in not concluding that his surrender would be incompatible with ?Articles 40.3.1 and 41 of the Constitution, and a disproportionate interference with rights conferred by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention); that he erred in not finding that "delay", either alone or in combination with other factors, justified refusal to surrender; that the principle in Henderson v. Henderson (1843) 3 Hare 100, ?76 ER 313 ought to have been applied; that he failed to consider absence of an explanation of why his surrender was not sought for the offences in the TCA arrest warrant in 1976 and 1977; and that he erred in finding that the offences in the TCA arrest warrant were not sufficiently linked to give an acquired right not be surrendered for the TCA arrest warrant offences.

12. John McNicholl advances two grounds of appeal. He asserts that the High Court judge erred in concluding that what he described as the exceptional circumstances, including " extraordinary delay " in the application for surrender and his personal and family circumstances, did not engage the " doctrine of abuse of process." He asserts that the High Court judge erred in not concluding as an oppressive factor that the authorities in the issuing state had made at least eight decisions not to seek his extradition or surrender during the period between 1976 and 2024.

13. The relevant factual background to the issues raised in these appeals is disclosed in information provided to the High Court. This information is contained in documents located by the Minister relating to ?extradition proceedings against S?amus O'Kane in 1977 and 1978, the TCA arrest warrants, responses of the issuing state to requests made under s.20 of the 2003 Act and affidavits and exhibits submitted on behalf of John McNicholl and S?amus O'Kane.

14. John McNicholl and S?amus O'Kane escaped from HM Prison Maze ?on 5 May 1976. The escapers were associated with the self-styled " Irish National Liberation Army."

15. A document exhibited in an affidavit from John McNicholl's solicitor discloses that he had, prior to his escape, been arrested and charged with the murder of Constable McPherson and the wounding of Constable Elliott, ?arising from the shootings in Dungiven on 26 July 1975. Information provided in the TCA arrest warrant confirms that he had been charged with murder and attempted murder.

16. A statement in the TCA arrest warrant that the? prosecuting authorities ?decided on 22 June 1976 that? John McNicholl should be prosecuted for these offences? , appears to be incorrect. Criminal proceedings for these offences had already commenced when he escaped from prison.

17. Information provided by the issuing judicial authority shows that the Royal Ulster Constabulary (RUC) believed that John McNicholl fled into the State after he escaped from HM Prison Maze. On 7 May 1976 a judicial authority in Northern Ireland issued a warrant for his arrest on a charge of having escaped from lawful custody at that prison. This warrant was transmitted to An Garda S?och?na for execution.

18. This warrant was returned unexecuted on 15 December 1977. Records indicate that a decision was taken not to pursue a request for his extradition at that time because similar proceedings had resulted in a refusal to extradite.

19. On the state of understanding of the Irish courts in the period prior to December 1982, of the effect of provisions in ?s.50 of the Extradition Act 1965 which precluded extradition for political offences, ?any application to extradite John McNicholl from the State to Northern Ireland to face trial for the offences allegedly committed by him at Dungiven and Garvagh would have been pointless.

20. The order made by Doyle J. in the High Court on 3 April 1978 pursuant to s.50 of the Extradition Act 1965 in the related case of S?amus O'Kane was an example of one such refusal. Lawyers representing the State conceded that the charges of murder and escape from lawful custody, on which S?amus O'Kane would face trial if he were surrendered to Northern Ireland, were political offences.

21. The reason for these refusals is well-known. At that time the Irish courts regarded the offence of escape from custody, and other offences committed by members of paramilitary groups in Northern Ireland, as political in nature. This view was accepted at that time by the Irish law officers and by the Minister for Justice. The 1965 Act entrusted to the Minister a parallel function to that given to the High Court.

22. The issuing judicial authority also stated in the TCA arrest warrant that on 8 June 1976 a decision was taken to prosecute John McNicholl for the four offences which the TCA arrest warrant alleges that he committed at Garvagh on 16 February 1976. An identical decision was made in respect of S?amus O'Kane on that date.

23. Both of these men were fugitives when these decisions were taken relating to the finds at Garvagh. There is no evidence that these decisions were acted upon by the issue of judicial warrants which might lead to their arrest and surrender under the provisions of Part III of the 1965 Act. The issue of such warrants would have been a necessary prelude to any effort to extradite John McNicholl and S?amus O'Kane from the State to face trial on charges relating to offences arising from those finds.

24. John McNicholl entered the United States of America in 1984. He overstayed his permission to remain there from 1989 onward. After protracted litigation in the United States, he was deported to Ireland on 18 ?July 2003.

25. Information obtained from police in Northern Ireland indicates that the RUC raised the possibility of securing John McNicholl's extradition from the State to Northern Ireland with the Attorney General for Northern Ireland and the Director of Public Prosecutions for Northern Ireland in 1987. This remained under consideration until February 1990. This was not pursued because it was considered that a request for his extradition was likely to be refused. This was in any event a futile exercise because John McNicholl was in the United States during that period.

26. The information provided does not disclose whether the issues under consideration extended to extradition with a view to prosecution for charges arising from the finds at Garvagh. Information provided by the issuing state in the case of S?amus O'Kane, which was also under review around that time, indicates that the RUC query related to the charges of murder and attempted murder.

27. In 1992 the RUC became aware that John McNicholl was in the United States. On 10 February 1994, following consultation with United States authorities, the Director of Public Prosecutions for Northern Ireland decided not to advance a request to the United States for his extradition. This was because it was considered that any such application would not succeed. The Chief Constable of the RUC sought a review of this decision. This did not produce any change of mind. The Director re-affirmed his decision on 5 August 1994.

28. Information provided by the issuing state indicates that in June 1995 the Federal Bureau of Investigation made the RUC aware that proceedings to deport John McNicholl had commenced in the United States. The date given is different to that given in the exhibit to the affidavit of John McNicholl's solicitor.

29. Information in that exhibit discloses that John McNicholl overstayed his initial permission to remain in the United States. He then left that jurisdiction. He? submitted paperwork at an overseas U.S. Consulate with a view to obtaining an immigrant visa. He then re-entered the United States from Mexico. At some subsequent stage the Immigration and Naturalisation Service (INS) brought deportation proceedings against him. These proceedings are stated to have ?commenced on 13 March 1997.

30. In April 1997 the INS was relying on four grounds for deportation based on allegations that John McNicholl had engaged in terrorist activity. The INS complained that he had failed to disclose to immigration authorities that he was wanted in Northern Ireland to face a murder charge and that he had escaped from prison and was a fugitive.

31. The deportation proceedings took a lengthy course. The INS introduced oral evidence from the then Governor of the Maze Prison at a hearing in February 1999. The INS also attempted to introduce oral evidence from Constable Elliott identifying John McNicholl as one of those involved in the shooting at Dungiven.

32. Information provided by the issuing state discloses that during 1997 further consideration was given to making a request to the United States for the extradition of John McNicholl to Northern Ireland. The United States authorities advised against this course because an application for his extradition was unlikely to succeed.

33. In 2001 John McNicholl succeeded in persuading a United States immigration judge that he should not be deported to the United Kingdom on grounds that he would be mistreated there.

34. In 2001 the Police Service of Northern Ireland (PSNI) set up an " On the Runs " review team. Incidents linked to John McNicholl were first reviewed by this team during that year.

35. John McNicholl was deported by the United States to the State on 18 July 2003. Following his deportation, the PSNI requested that the Director of Public Prosecutions for Northern Ireland consider seeking his extradition and a file review was commenced. This development was hardly surprising. John McNicholl avers that his deportation resulted in calls by a senior politician in Northern Ireland that he be extradited.

36. Advice was sought from the Crown Solicitor on the prospect of a successful application to have John McNicholl extradited. The Director of Public Prosecutions in Northern Ireland concluded at that stage that the test for prosecution of John McNicholl remained met for the offences set out in the TCA arrest warrant.

37. Such information as has been provided does not disclose whether the advice requested from the Crown Solicitor was given at that time. This absence of information is common to information provided by the issuing state in relation to S?amus O'Kane. S?amus O'Kane was also the subject of a review at that time.

38. The 2003 Act was enacted on 28 December 2003 and came into force on 1 January 2004. The Parliament of the United Kingdom passed similar legislation to implement the Framework Decision and make other changes to the law governing extradition in late 2003.

39. No information has been provided as to whether the Crown Solicitor sought or obtained ?further advice from or on behalf of the Attorney General for Northern Ireland on the likely attitude of the Irish courts to a request for surrender of John McNicholl or of S?amus O'Kane, in light of the changes brought about by the Framework Decision and the provisions of the 2003 Act.

40. At some stage in the period between 2006 and 2007, further consideration was given to seeking the surrender of John McNicholl to Northern Ireland to face charges. The Crown Solicitor was instructed to draft and apply for a European arrest warrant.

41. It may be inferred from this instruction that the Director of Public Prosecutions for Northern Ireland held advice from the law officers in Northern Ireland that there was a reasonable prospect that an application to the Irish Courts for surrender of John McNicholl under the 2003 Act would succeed.

42. The issuing state is unable to provide an explanation for why this instruction was not acted on. No information is provided on whether the PSNI was asked to take steps necessary to prepare for an imminent prosecution and ensure that sufficient evidence to secure convictions was still available.

43. The " On the Run s" review was replaced by " Operation Rapid." This was a PSNI team set up to review incidents linked to on the runs. This team conducted further reviews of incidents linked to John McNicholl between 2007 and 2009. This led to a further review by the Public Prosecution Service (PPS) between 2009 and 2011. The PPS concluded that the test for prosecution remained met for the offences which are the subject matter of the TCA arrest warrant relating to John McNicholl.

44. According to information provided by the issuing state, it is not known why this conclusion was not acted on by an application for a European arrest warrant. No information is provided on whether the PSNI was requested or directed at that time to take whatever steps were necessary to prepare for an imminent prosecution and ensure that sufficient evidence to secure convictions was still available.

45. In January 2019 the PSNI submitted a fresh file to the PPS in respect of the offences which are the subject matter of the TCA arrest warrant relating to John McNicholl. During 2019 and 2020 the PPS requested that the police undertake further enquiries, including tracing witnesses to confirm availability and recording additional statements. This work continued during 2021 and 2022. In 2023 a decision was taken that the test for prosecution remained met for the offences detailed in the TCA arrest warrant issued in 2024.

46. No letter of comfort was ever issued to John McNicholl. He was never given any assurance that he would not be prosecuted for those offences.

47. On 7 May 1976 a warrant was issued in Northern Ireland for the arrest of S?amus O'Kane on a charge of having escaped from lawful custody at HM Prison Maze ?on 5 May 1976. This warrant was transmitted to the Commissioner of the Garda S?och?na with a request that he be arrested and delivered to Northern Ireland.

48. The TCA arrest warrant relating to S?amus O'Kane provides some additional information relating to the offences charged in it. It states that on 8 June 1976 a decision was taken to prosecute him for offences relating to the finds at Garvagh.

49. At that time S?amus O'Kane was believed by the RUC to have fled into this State. In order to act on the decision to prosecute him for offences relating to the finds at Garvagh, it would have been necessary to obtain an arrest warrant from a judicial authority in Northern Ireland and to transmit it to the Commissioner of the Garda S?och?na for endorsement and execution under Part III of the 1965 Act.

50. The TCA arrest warrant also states that on 22 June 1976 a decision was taken to prosecute S?amus O'Kane for the offences of murder and attempted murder, arising from the murder of Robert McPherson and the wounding of William Elliott at Dungiven on 26 July 1975. This information cannot be correct. He was being held on remand in HM Prison Maze on charges of having committed offences of murder and attempted murder arising from the shooting at Dungiven at ?the time of his escape from that prison. It seems more likely that this decision related to an intention to issue arrest warrants against him with a view to seeking his extradition to face trial for those offences.

51. S?amus O'Kane was arrested by a member of the Garda S?och?na at Mountjoy Prison on 13 September 1977 on foot of the arrest warrant issued on 7 May 1976. He was then brought to the Dublin Metropolitan District Court. That court made an order for his delivery into the custody of a member of the RUC ?at a point adjacent to the land frontier.

52. Information in the TCA arrest warrant discloses that it was believed that on 30 September 1977 an order was made that S?amus O'Kane be extradited to Northern Ireland to stand trial for the offence of escape from lawful custody, which was subsequently quashed on appeal in April 1978. This reference to the date of the initial order appears to be a typographical error. It was also believed that the High Court refused extradition for the murder and attempted murder offences on the basis that those offences were political offences , or were connected to offences that were political in nature.

53. The TCA arrest warrant states that a warrant for the arrest of S?amus O'Kane for the offences of murder and attempted murder issued on 12 September 1977 and was transmitted to the Garda authorities on 14 September 1977.

54. In fact, two further warrants were issued in Northern Ireland for the arrest of S?amus O'Kane on 12 September 1977. The first was a warrant to arrest him and bring him before a court in Northern Ireland on a charge of having murdered Constable McPherson at Dungiven on 26 July 1975. The second warrant related to a charge of his having attempted to murder Constable Elliott at Dungiven.

55. These warrants were transmitted to the Commissioner of the Garda S?och?na for endorsement and execution under cover of a letter dated 14 September 1977.

56. It may be inferred that these warrants were obtained on an urgency basis in anticipation of an imminent arrest of S?amus O'Kane on the warrant relating to the charge of escape from lawful custody, and that they were transmitted to the Garda authorities immediately to facilitate his arrest for the purpose of being surrendered to stand trial for those offences. There is no evidence that the Garda authorities executed these warrants.

57. Such information as is available does not suggest that the RUC or the prosecuting authorities in Northern Ireland took any steps to act on the decision to prosecute S?amus O'Kane for the offences charged in the TCA arrest warrant during 1976, 1977 or 1978.

58. On 24 October 1977 S?amus O'Kane issued a special summons seeking an order for his release under s.50 of the 1965 Act. That provision gave the High Court power to direct his release, ?if that court was of the opinion that the offence charged in the warrant was a political offence or an offence connected with a political offence, or if there was substantial reason to believe that if he were removed from the State he would be prosecuted for a political offence or an offence connected with a political offence.

59. In his affidavit in support of his application to the High Court sworn on 29 November 1977, S?amus O'Kane claimed to be a member of the " Irish National Liberation Army". " He relied on an assertion that the offence of escape from lawful custody charged in the warrant on foot of which he had been arrested on 13 September 1977 was a political offence committed by him while acting as a member of the " Irish National Liberation Army ". He also asserted his belief that in the event that he was removed from the State he would be prosecuted for the murder of Constable McPherson, and for an offence of being a member of the " Irish National Liberation Army ".

60. In a replying affidavit, D/I Russell of the RUC asserted that the offences of murder and attempted murder which S?amus O'Kane had been charged with in Northern Ireland and the offence recited in the warrant were offences under the ordinary law of Northern Ireland and not political offences. He indicated that in the event of S?amus O'Kane being returned to Northern Ireland he would be prosecuted for those offences.

61. A note of the hearing before Doyle J. which took place on 3 April 1978 records that both of these affidavits were opened to the High Court and that the Court granted relief under s.50 of the 1965 Act. A newspaper report of the proceedings indicates that the validity of S?amus O'Kane's claim that his extradition was being sought in connection with offences which came within s.50 of the 1965 Act was conceded by counsel representing the Assistant Commissioner of the Garda S?och?na, who was the named defendant.

62. The affidavits before the High Court made no mention of the fact that the prosecuting authorities in Northern Ireland had obtained two further judicial arrest warrants relating to the charges of murder and attempted murder and passed them to the Assistant Commissioner for execution, or of the decision to charge S?amus O'Kane with offences relating to the finds of explosive substances, firearms and ammunition at Garvagh.

63. S?amus O'Kane had been arrested in a farmhouse in Garvagh during the course of a search. The searchers found explosive detonators and other bomb-making paraphernalia, pistols and a large quantity of ammunition in that house during that search. He therefore knew there was no shortage of incriminating evidence which might tie him to possession of those explosives substances, firearms and ammunition.

64. Irrespective of his lack of knowledge of the decision in July 1976 by Northern Ireland authorities to prosecute him for offences relating to the explosive substances, firearms and ammunition found at Garvagh, he had the option of claiming in his proceedings under s.50 of the 1965 Act that he should not be surrendered because there were substantial reasons for believing that if he were surrendered he would be tried for offences relating to the finds at Garvagh and that these were political offences.

65. On the state of understanding of Irish courts of the legal effect of s.50 of the 1965 Act in 1976, 1977 and 1978, any application to extradite S?amus O'Kane to Northern Ireland to face trial for the offences charged in the TCA arrest warrant would have been pointless.

66. As the offences charged in the TCA arrest warrant and the alleged murder, attempted murder and escape from lawful custody in Northern Ireland all related to events which took place prior to 6 May 1976, the provisions of the Criminal Law (Jurisdiction) Act 1976 (the 1976 Act) which came into force on that date did not apply to them. However, assuming that S?amus O'Kane was an Irish citizen, it was open to the State to prosecute him for the murder of Robert McPherson. That option did not exist in relation to the offences charged against him in the TCA arrest warrant.

67. Supplemental information provided by the issuing state to the High Court indicates that in 1987 and 1988 further consideration was given to seeking S?amus O'Kane's extradition to Northern Ireland. At that time he was wanted in Northern Ireland to stand trial for offences of murder and attempted murder arising from the shooting of the RUC officers in Dungiven. It is believed that this was not proceeded with because it was considered that extradition would be refused.

68. This supplemental information suggests that focus at that time was on the offences of murder and attempted murder arising from the attack on the RUC officers at Dungiven. The Attorney General for Northern Ireland and the Director of Public Prosecutions for Northern Ireland were asked to review whether or not to request extradition on charges relating to those offences.

69. Supplemental information from the issuing state states that from 2001 the Northern Ireland Office of the British Government submitted lists of those who were " on the run " to the PSNI and that incidents linked to S?amus O'Kane were reviewed as part of this in exercise in 2001 and 2002.

70. The Director of Public Prosecutions for Northern Ireland conducted file reviews in 2003 and concluded that the test for prosecution of S?amus O'Kane was met in relation to the offences of murder, attempted murder, escape from custody and the offences at Garvagh which are the subject of the TCA arrest warrant. The Director of Public Prosecutions for Northern Ireland sought advice from the Crown Solicitor on the prospect of a successful extradition application. This information is similar to that which has been provided in the case of John McNicholl. It may be inferred that this review was prompted by publicity following the deportation of John McNicholl from the United States.

71. Such information as has been provided does not disclose whether the advice requested ?on the prospect of a successful extradition application was provided. No information has been provided as to whether advice was sought or obtained by or from the law officers in Northern Ireland at that time on the likely attitude of the Irish courts to such a request in light of the changes effected by the 2003 Act. As a result of incomplete records, it is not known why an application was not made for arrest and surrender of S?amus O'Kane for those offences at that stage.

72. We are also told that incidents linked to S?amus O'Kane were again reviewed as part of " Operation Rapid " between 2007 and 2009 and that, as with incidents linked to John McNicholl, this was followed by a further review by the PPS in 2010 and 2011. The result of this review was that the test for prosecution of S?amus O'Kane continued to be met for the explosives offences and firearms offences associated with Garvagh, but not for offences associated with the murder and attempted murder of the RUC officers at Dungiven.

73. No explanation has been forthcoming as to why no action was taken to initiate an application for a European arrest warrant to secure the surrender of S?amus O'Kane for the offences charged in the TCA arrest warrant at that time. No information is provided on whether the PSNI was requested or directed at that time to take whatever steps were necessary to prepare for an imminent prosecution.

74. We are told that S?amus O'Kane remained alerted for arrest in the United Kingdom throughout this period.

75. In January 2019 the PSNI submitted a fresh file to the PPS in respect of the offences which are the subject matter of the TCA arrest warrant. During 2019 and 2020 the PPS requested that the police undertake further enquiries, including tracing witnesses to confirm availability and recording additional statements. This work continued during 2021 and 2022. In 2023 a decision was taken that the test for prosecution remained met for the offences detailed in the TCA arrest warrant.

76. At some subsequent stage a decision was taken to apply for the TCA arrest warrant issued on 26 April 2024.

77. John McNicholl's affidavit sworn on 22 October 2004 does not deal with events prior to his deportation from the United States to Ireland in July 2003. He knew at that time that the RUC had been " active in the case against me." He claims that he expected to be arrested when he was returned to Ireland. He lived openly in Donegal after his return to Ireland. He also claims that after his return he began to suffer night terrors and PTSD due to being beaten and tortured while imprisoned in Northern Ireland. Collateral information in an exhibit to an affidavit by his solicitor and in the TCA arrest warrant ?discloses that he was born in 1952.

78. He does not disclose much about his history before his deportation, except that he had been residing in Philadelphia, and that he has a wife. He has three children who were born in the United States. While resident in the United States he worked in the fire protection industry. After he returned to Ireland he went to live in Letterkenny. His wife and children joined him in Letterkenny.

79. He complains that his children, who were then aged 18, 16 and 12, had difficulties in adjusting after they emigrated to Ireland. Two of his children are now living the United States and one is living in Dublin.

80. John McNicholl avers that he was assured by other Irish republicans that nobody was being arrested to be extradited anymore and that Martin McGuinness told him that people were handing themselves in and signing pieces of paper in Northern Ireland to say that they would keep the peace. However he does not suggest that he relied on this information. He did not know if those arrangements would apply to him.

81. He completed courses in solar installation and renewable energy after his return to Ireland. He set up a renewable energy business which collapsed during the recession. After that, he tried unsuccessfully to launch a wood pellet manufacturing business. He worked at fixing lawnmowers until 2023.

82. He avers that he suffered a collapse and loss of consciousness in August 2023 and was kept in hospital for two days, after which he was sent home without medication. He suffered another collapse later that month and was rushed to hospital with a low heart rate. He spent four nights in hospital and was then sent home without medication or a definitive diagnosis. He suffered a further incident on 11 October 2023 and spent six nights in hospital. He suffered a major heart attack on 10 October 2023 and remained in hospital until 22 November 2023. He has been fitted with a pacemaker. He has an ongoing right shoulder injury caused by work-related ?wear-and-tear.

83. He has "type 2" diabetes. He has had a melanoma removed in Sligo Hospital. He takes medication for his heart condition, diabetes and cholesterol. He states that following his arrest on the TCA arrest warrant his night terrors returned. He does not want to be separated from his family and complains that he could not go to Northern Ireland to attend his father's funeral or get to attend the marriage of one of his sons or the graduation of his other son. Presumably, these events took place in the United States.

84. He is living in a rented house and maintains the grounds for its owner. He is worried that if he is in prison in Northern Ireland his wife will not be able to pay the rent and will lose her home. He claims, without providing any credible source or supporting evidence, that he might wait for up to 8 years for a trial in Northern Ireland. He claims that RUC officers at his deportation hearing in the United States produced photographs of guns found in the house where he was arrested which did not include a photograph of the pistol used in the shooting at Dungiven and that this photograph has now somehow re-emerged.

85. John McNicholl's solicitor has exhibited a medical report from a General Practitioner in Letterkenny dated 12 July 2024. This doctor describes symptoms consistent with post-traumatic stress disorder and states that he was commenced on Xanax twice daily as a treatment. He does not state when this diagnosis was made or when this treatment commenced. He suffers from cardiovascular disease which has led to episodes of syncope for which he was treated with a pacemaker. He is also suffering from palpitations due to tachycardia and is taking one tablet per day to control this. He has a significant damage to the musculature of the right shoulder. He has non-insulin-dependent diabetes, which is controlled by medication, has had treatment for a melanoma, has prostatic problems, peptic ulcer disease and high cholesterol.

86. The TCA arrest warrant relating to S?amus O'Kane shows that he was born in early 1951. His affidavit sworn on 9 October 2024 states that he was not aware of a decision in 1976 to prosecute him for offences associated with the finds of explosive substances, firearms and ammunition at Garvagh and that, had he been aware of this, he would have referred to it in his affidavit in his extradition proceedings in 1977.

87. He claims that after the order of the High Court 3 April 1978 he was of the firm belief that the events of 1975 and 1976 were behind him. This averment is difficult to accept. He was a fugitive from justice. It was obvious that his immunity from prosecution depended on his remaining within the State, and on the laws which gave him immunity from surrender to Northern Ireland to face trial for offences relating to those events not being changed.

88. He worked as a construction worker in Dublin from 4 April 1978. He married in 1980 and he and his wife bought a house in Donaghmede. In 1987 they moved to Dunshaughlin, County Meath and they have resided there since. He has three children. The two youngest live at home and the eldest is married with her own children. She lives nearby and he is close to his grandchildren. He continued to work in the construction industry until 2009 and thereafter on a community employment scheme.

89. He claims that, following the Good Friday Agreement, he believed that he was covered by an amnesty from prosecution for offences alleged to have been committed in 1975 and 1976. There is no evidence that there was any such amnesty or legal basis for that belief. He also states that over the last 46 years he travelled regularly to Northern Ireland for pleasure and work without fear of arrest. It is difficult to accept the second part of this averment. If the RUC and PSNI had become aware that he was visiting Northern Ireland it is likely that they would have tried to apprehend him.

90. Finally, he claims that he understood that no prosecutions would be brought in Northern Ireland for offences claimed in the troubles as a result of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023. It is a matter of common knowledge that the courts in Northern Ireland have determined that the amnesty provisions in this Act have been found to be incompatible with the provisions of the European Convention on Human Rights and that this finding has not been appealed. No evidence was tendered by him to show that he was entitled to an amnesty under this law or any other law applicable in Northern Ireland. He avers that he and his family are anxious and stressed that the matters which he now is facing will unwind his life achievements over 46 years.

91. The points of law certified by the learned High Court judge and the grounds of appeal advanced by John McNicholl and S?amus O'Kane, do not identify periods during which it was contended delays in seeking their surrender to face the charges in the TCA arrest warrants could not be adequately explained.

92. Having set out relevant chronological history and evidence of personal circumstances of John McNicholl and S?amus O'Kane, it is appropriate to examine how the law relating to extradition from the State to the United Kingdom evolved in the period between 1976 and 1 January 2004, and thereafter.

93. Part III of the 1965 Act applied to surrenders from the State to Northern Ireland, England and Wales, Scotland, the Isle of Man and the Channel Islands. Section 50 of the 1965 Act was within Part III.

94. Section 20 of the 1965 Act provided for the rule of specialty. It required that extradition not be granted, except with the consent of the Minister for Justice duly requested and supported by documents mentioned in s.25 of that Act, unless the law of the issuing state or the extradition agreement expressly allowed extradition for an offence other than that for which a person's extradition was requested. Part III of that Act did not make provision for how this rule, which is contained in Part II, applied to surrenders under the procedure provided for in Part III.

95. Section 3 of the Extradition (Amendment) Act 1987 allowed the Minister to make regulations applying the provisions of s.20 of the 1965 Act in relation to delivery of a person to a member of the police force of a place to which the provisions of that Act applied. The wording of this provision was framed on a premise that s.20 of the 1965 Act did not apply to surrenders under arrangements governed by Part III of the 1965 Act. No regulations were made on foot of s.3 of the 1987 Act until 1994: see the Extradition (Rule of Specialty and Re-Extradition for Purposes of Part III of Extradition Act 1965) Order 1994 (S.I. 221 of 1994).

96. Prior to the coming into force of the 2003 Act, the so-called " political offence " objection was still, albeit in an attenuated form, available as a bar to extradition of those who could prove that they were being sought to be tried for political offences in the places covered by Part III of the 1965 Act, including Northern Ireland. The relevant provisions were set out in s.50 of the 1965 Act which gave discretions to both the High Court and the Minister for Justice. The relevant elements of s.50 in the period between 1965 and 31 December 2003 read as follows:

"(1) A person arrested under this Part shall be released if the High Court or the Minister so directs in accordance with this section.

(2) A direction under this section may be given by the High Court where the Court is of opinion that - (a) the offence to which the warrant relates is - (i) a political offence or an offence connected with a political offence, or (ii) an offence under military law which is not an offence under ordinary criminal law, or (iii) a revenue offence, or (b) there are substantial reasons for believing that the person named or described in the warrant will, if removed from the State under this Part, be prosecuted or detained for a political offence or an offence connected with a political offence or an offence under military law which is not an offence under ordinary criminal law...

(3) A direction of the Court under this section may be given either on application made by or on behalf of the person concerned or on the question being referred to the Court by the Minister.

(4) A direction under this section may be given by the Minister on any of the grounds set out in paragraph (a) or (b) of subsection (2)."

1. The provisions in s.50(2)(a)(i) and (b) of the 1965 Act corresponded with those in s.11(1) and (2) in Part II of that Act. The latter provisions applied to extraditions on foot of international agreements between the State or other states or reciprocal extradition arrangements with other states.

2. On the state of the understanding of the Irish courts of the effect of the provisions of the Extradition Act 1965 relating to offences which were regarded as political offences throughout the 1970s, any application to extradite John McNicholl and S?amus O'Kane to Northern Ireland to face trial for the offences charged in the TCA arrest warrants during that period was doomed to fail: see the explanation by O'Higgins C.J. of the effect of the decision in Bourke v. The Attorney General [1972] I.R. 36 in Re Criminal Law (Jurisdiction) Bill, 1975 [1977] I.R. 129 at 142-143.

3. The 1976 Act was enacted with a view to providing a solution to a difficulty which at the time of its enactment, and for a long period of time thereafter, was perceived by some to exist that, the State, ?arising from obligations under international law, was obliged to refuse extradition to those charged with terrorist offences committed in Northern Ireland on grounds that they were political offences.

4. The first significant legal development which brought about a shift from that position was the judgment of the Supreme Court in McGlinchy v. Wren [1982] I.R. 154. From then on, the Irish courts began to take the view that the political offence exclusion from extradition provided for in ss.11 and 50 of the 1965 Act did not apply to the sorts of offences which members of paramilitary armed gangs were committing in Northern Ireland.

5. It might have been thought that as a result of McGlinchy v. Wren any ?further attempt to rely on the political offence exclusion as a ground to resist extradition to Northern Ireland would fail. However, that proved not to be the case where the offence giving rise to ?a request for extradition related to ?an incident which involved ?others who had succeeded in resisting surrender on the basis of the law as it was understood to be prior to? McGlinchy v. Wren. This was the effect of the decision in McMahon v. Leahy [1984] I.R. 525.

6. In March 1975 prisoners in custody escaped from Newry Courthouse. Five of the escapers fled into the State. Warrants were issued for the arrest of four of these men on charges of escape from lawful custody and they were arrested in April 1975 for surrender to Northern Ireland to face trial on these charges on foot of these warrants. In December 1975 and January 1976 these men persuaded the High Court that they should be released under s.50 of the 1965 Act on grounds that the offences charged were political offences or offences connected with a political offence. In at least two of the four cases the application was not opposed. The State did not appeal the result of the decisions in the other two cases. In 1983 a warrant for the arrest of a fifth man on a charge of escape from lawful custody at Newry Courthouse was forwarded to the Garda S?och?na and executed.

7. The Supreme Court refused to entertain an argument by the State that it should be allowed to contest the case advanced by the fifth man that the offence charged in the warrant was a political offence or an offence connected with a political offence. The Court categorised the State's contention in relation to the fifth escaper that the offence was not a political offence as " discriminatory treatment of one individual " which " certainly requires explanation." The Court was concerned to maintain respect for court proceedings.

8. The most significant element of the ?Supreme Court's reasoning was that if it did not treat the fifth man " politically exempt," it would fail in its duty to hold all five equal before the law, as required by Article 40.1 of the Constitution. The Supreme Court considered that the State's change of position on the issue of whether their escape was a political offence was an " abuse of the process."

9. The implications of that decision for are obvious. It meant that if there was an attempt to extradite John McNicholl from the State to Northern Ireland, on the charges of murder and attempted murder he could rely on the finding of the High Court which resulted in the order for the release of S?amus O'Kane on 3 April 1978.

10. Furthermore, if the Northern Ireland authorities sought the extradition of S?amus O'Kane to face trial for offences relating to Garvagh, he could make a plausible case that omission by those authorities to draw the attention of the High Court in 1978 to the decision to prosecute him for those offences deprived him of an opportunity to obtain the benefit of a judicial conclusion in those proceedings that there were " substantial reasons for believing " that, if returned to Northern Ireland, he would be prosecuted for those offences.

11. There can be little doubt that if the authorities in Northern Ireland disclosed at the time of the special summons proceedings that they had made a decision to prosecute S?amus O'Kane for offences relating to the finds at Garvagh, his legal advisers would have included a claim that he would be prosecuted for those offences as part of his grounds for an order for his release under s.50(2)(b) of the 1965 Act.

12. The next relevant legal development was the Extradition (European Convention on the Suppression of Terrorism) Act, 1987 (the Convention Act of 1987). This came into effect on 1 December 1987. Section 4 of that Act excluded a limited range of offences specified in s.4(2) from being treated as political offences for the purposes of Part III of the 1965 Act in relation to any warrant for an arrest issued after the commencement of that Act, where those offences were considered by High Court or by the Minister not to be political offences by reference to criteria set forth in s.4(1)(a) of that Act.

13. Those offences included the offence of murder, whether committed before or after the commencement date: see s.1(4) the Convention Act of 1987. However, they did not include the offences charged in the TCA arrest warrants relating to the explosive substances, firearms and ammunition found at Garvagh on 16 February 1976. Section 50(2) of the 1965 Act remained in place. The Convention Act of 1987 did not affect the conclusive nature of the finding of the High Court in favour of S?amus O'Kane on 3 April 1978. This precluded his extradition on grounds that if surrendered to Northern Ireland he would be tried for the offences of murder and attempted murder and that these offences were political in nature.

14. It is therefore not surprising that enquiries by the Northern Ireland authorities in 1987 and 1988 as to whether there was a prospect that an application for the surrender of S?amus O'Kane from the State to Northern Ireland to face a charge of murder of Constable McPherson would succeed yielded a negative result.

15. Section 2(1)(b) of the Extradition (Amendment) Act 1987 (the 1987 Act) amended s.50 of 1965 Act by inserting s.50(2)(bbb). This provided that " lapse of time since the commission of the offence specified in the warrant or the conviction of the person named or described therein of that offence " along with other exceptional circumstances together constituted grounds on which the High Court could direct the release of a person arrested for extradition if that Court considered that " it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under section 47 ". See discussion of Long v. O'Toole [2001] 3 IR 548, in the Judgment of O'Donnell J. in Finnegan v. Superintendent of Tallaght Garda Station ([2019] IESC 31) [2021] 3 I.R. 227 at paras. 15 to 21, pp. 236-239.

16. The next relevant legal development was the Extradition (Amendment) Act 1994. (the 1994 Act). The 1994 Act amended s.3 of the Convention Act of 1987 by removing the political offence exclusion from extradition from offences specified in the First Schedule. Those offences included murder and attempted murder and other offences, which if committed in the State, would involve contraventions of specified offences under the specified sections of the Firearms Acts 1924 and 1964 and the Explosive Substances Act 1883. However, s. 1(2) of the 1994 Act excluded the application of those provisions to offences alleged to have been committed before 1 August 1994 by a person in whose case a court had found the offence was a political offence or an offence connected with a political offence.

17. Three of the four offences specified in the TCA arrest warrant relating to S?amus O'Kane corresponded with offences specified in the First Schedule to the 1994 Act.

18. As a result of this change it was now theoretically possible to seek extradition of S?amus O'Kane for the offences specified in the TCA arrest warrant. However, if an application for extradition was made it is likely that the Northern Ireland authorities would have been obliged to give an assurance that he would have immunity from prosecution on the charges of murder and attempted murder.

19. This was the consequence of the combined effect of the specialty rule and the order of the High Court for his release on 3 April 1978. It goes without saying that such a course would not have been acceptable while the prospect of a successful prosecution on those more serious charges remained viable.

20. The 2003 Act came into effect on 1 January 2004. Section 4 of the 2003 made the provisions of that Act applicable to offences committed prior to its commencement. The political offence exception as it was understood under the 1965 Act ceased to exist. In cases governed by the provisions of the 2003 Act, the grounds on which an application for surrender could be resisted were confined to those permitted by that Act.

21. The political offence exception in governed by Article 602 of the TCA. The offences charged in these TCA arrest warrants come within terrorism as defined in Annex 45 to the TCA. The terms of Article 603 (2) (c) Of the TCA preclude their being exempted as political offences by declaration of either the EU or the UK.

22. Section 50 of the 2003 Act provides as follows: "50-(1) Part III of the Act of 1965 is repealed. (2) Where, before the commencement of this Act, a warrant issued by a judicial authority in a place in relation to which Part III of the Act of 1965 applies was- (a) produced to the Commissioner of the Garda S?och?na for the purposes of section 43 of the Act of 1965, or (b) endorsed for execution under that Part, then, notwithstanding the repeal of the said Part III effected by subsection (1), that Part shall, on and after the said commencement, continue to apply in relation to that warrant and the person named in that warrant shall be dealt with under and in accordance with that Part."

23. Section 50 of the 2003 Act was intended to apply to warrants under Part III of the 1965 Act which were being processed at time of commencement of the 2003 Act. However, the wording of s.50 left scope for S?amus O'Kane to argue that as warrants relating to the murder and attempted murder sent to the Commissioner of the Garda S?och?na under cover of the letter from Northern Ireland dated 14 August 1977 were "produced to the Commissioner...for the purposes of section 43 of the Act of ?1965". it followed that Part III of the 1965 Act continued to govern any application to surrender him to face trial for those offences.

24. That might have retained the benefit of the decision of the High Court dated 3 April 1978 for S?amus O'Kane, but only in respect of charges relating to the shootings at Dungiven. However, it could not carry forward any benefit from the High Court decision of 3 April 1978 in respect of the charges in the TCA arrest warrant relating to Garvagh, because there is no evidence that arrest warrants were ever produced to the Commissioner of the Garda S?och?na for endorsement under Part III of the 1965 Act in relation to those charges.

25. The application to surrender S?amus O'Kane on foot of the TCA arrest warrant did not invite any review or reversal by the High Court of any legal effect of its order dated 3 April 1978. That application was not an abuse of the legal process mandated by the 2003 Act. He has not demonstrated that the alleged omission by the prosecuting authorities in Northern Ireland in 1977 resulted in a situation where the current application for his surrender constitutes an interference with a substantive right guaranteed to him by the Convention, or by the Charter, or by Irish constitutional law.

26. S?amus O'Kane enjoyed no vested personal right to retain the benefit of the High Court decision of 3 April 1978 after Part III of the 1965 Act was repealed and replaced by the provisions of the 2003 Act. Any abuse of process argument which he may have been able to advance on the basis of omissions by the authorities in Northern Ireland to alert him to the 1976 decision to prosecute him for offences relating to Garvagh in response to his application for release under s.50 of the 1965 Act vanished on 1 January 2004.

27. His situation is not comparable with that of the appellant in McMahon v. Leahy. The Minister, in maintaining these proceedings, is not asking the executing judicial authority to treat him unequally before the law. An order for his surrender will not contravene his rights under Article 40.1 of the Constitution or under any other provision of the Constitution. He never enjoyed a constitutional right to immunity from surrender to Northern Ireland to stand trial for offences associated with the Garvagh finds. The scheme and purposes of the 2003 Act are completely inconsistent with any statutory intention to preserve the benefit of protections which he might have been able to claim if Part III of the 1965 Act continued to govern surrender for the offences charged in the TCA warrant. This Court cannot ignore the fact that the 2003 Act is expressly stated to apply to offences committed before its commencement and supersedes Part III of the 1965 Act , except in the case applications governed by the provisions of s.50 of the 2003 Act.

28. It follows that the answer to second certified question relating to S?amus O'Kane must be " no".

29. It can be seen from this examination of the both the evidence and the legal background that, prior to 1 January 2004, there was no realistic prospect that an application for surrender of S?amus O'Kane to face trial on charges arising from the incidents at Dungiven and Garvagh could succeed. The legal difficulty arising from the decision in McMahon v. Leahy also precluded extradition of John McNicholl from the State to Northern Ireland to face trial for offences relating to the shootings at Dungiven. Furthermore, John McNicholl was not in the State for most of the period prior to 1 January 2004. ?

30. The Northern Ireland prosecution authorities cannot be criticised on grounds of omission to seek extradition of S?amus O'Kane under Part III of the 1965 Act for the offences charged in the TCA arrest warrant during the period prior to enactment of the 2003 Act.

31. It follows from the evidence relating to the whereabouts and activities of John McNicholl in the period between 1976 and 2004, that the Northern Ireland prosecution authorities cannot be criticised on grounds of omission to seek his extradition from the State or from the United States during that period.

32. Thereafter, in the period between 2004 and 2019, such steps as were taken by the prosecuting authorities in Northern Ireland to progress the objective ?of securing John McNicholl and S?amus O'Kane ?to face trial relating to the incidents at Dungiven and Garvagh were sporadic and ineffective. The reasons why those prosecuting authorities did not act following their review of offences attributed to John McNicholl and S?amus O'Kane following the " On the Runs " and " Operation Rapid " reviews remain unexplained. It is difficult to avoid a conclusion that these delays stemmed from maladministration.

33. Turning to first point of law certified by the High Court, this refers to abuse of process and oppressive litigation.

34. The term abuse of process is occasionally used in judgments delivered by Irish courts and by courts in the United Kingdom exercising jurisdiction conferred by legislation governing extradition and surrender.

35. The High Court has power to refuse to execute a European arrest warrant or a TCA arrest warrant where the application for enforcement involves an abuse of process of that court.

36. The law of the European Union also contemplates exercise of discretion to refuse surrender by executing judicial authorities on abuse of process grounds. In the context of European and TCA arrest warrants, Recital [12] of the Framework Decision specifies that it "does not prevent a Member State from applying its own constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other areas."

37. Such powers are common to the right of national executing judicial authorities to control their procedures and ensure the procedures mandated by the Framework Decision and the relevant provisions of the TCA are not misused. This is also an aspect of the right of a person whose surrender is sought to due process in the proceedings of the executing judicial authority.

38. The term abuse of process connotes conduct which requires that a court resort to powers conferred by domestic law to stop or refuse to entertain legal proceedings which have been brought for what the law regards as an improper purpose, or proceedings where improper means are used to obtain a litigation result. The question which arises is whether there has ?been a failure to adhere to due process in some fundamental aspect of the surrender proceedings before the executing judicial authority.

39. The purpose of the power of an executing judicial authority to refuse surrender on grounds of abuse of process is to protect the integrity of the process mandated by the 2003 Act and the rights of the person whose surrender is sought to due process in the surrender procedure.

40. I agree with a view expressed by Lord Sumption JSC in Zakrzewski v. Regional Court in Lodz, Poland ([2013] UKSC 2) [2013] 1 WLR 324, in para.13 of his judgment at p.331 of the report, that the power of the executing judicial authority to prevent abuse of its process must be exercised in the light of the purposes of that process.

41. The process is only concerned with whether surrender should be enforced. Absent convincing evidence of a real risk of the contrary, due process by the issuing judicial authority and by the courts and legal systems of the issuing state after surrender are taken as " givens."

42. The 2003 Act must be interpreted and applied in light of its principal stated purpose, which is to give effect to the Framework Decision. As a result of amendment in 2024, the 2003 Act has an additional purpose, which is to give effect to the relevant provisions of the TCA and the EU-Iceland Norway Agreement.

43. Recital [10] of the Framework Decision states that this mechanism is "based on a high level of confidence between Member States." While the relevant provisions of the TCA do not include recitals which refer to the principle of mutual recognition based on the "high level of confidence between Member States" which is the cornerstone of the Framework Decision, many provisions in the TCA are modelled on provisions in the Framework Decision. The system is still based on recognition of the decision of the issuing judicial authority and an order for surrender by an executing judicial authority does not require confirmation by the executive of the executing state.

44. Absent evidence to the contrary,? s.4A of the 2003 Act, as amended, applies to applications to enforce surrender on foot of TCA arrest warrants. This provides that "It shall be presumed that an issuing state will comply with the requirements of [the TCA] unless the contrary is shown."

45. The 2003 Act has been amended to give effect to provisions in the TCA which laid down surrender procedures between the United Kingdom and the Member States of the European Union following the exit of the UK from the EU. These revised arrangements conform with and retain many of the features of the Framework Decision.

46. These provisions created a simple and speedy procedure for surrender based on recognition by the executing judicial authority of the decision to issue the warrant by the issuing judicial authority.

47. Article 524 of the TCA provides: "1. The cooperation provided for in this Part is based on the Parties' and the Member States' long standing respect for democracy, the rule of law and the protection of fundamental rights and freedoms of individuals, including as set out in the in the Universal Declaration of Human Rights...and in [the Convention] and on the importance of giving effect to that convention domestically. 2. Nothing in this Part modifies the obligation to respect fundamental rights and principles as reflected, in particular, in [the Convention] and in the case of the [European] Union and its Member States, in [the Charter]."

48. The United Kingdom is no longer a Member State of the European Union. However, it is clear from the preliminary ruling of the Court of Justice of the European Union in Case C-202/24 Alchaster ECLI:EU:C:2024:649, that the Irish courts continue to be obliged to secure the benefits of rights secured by and the Charter of Fundamental Rights of the European Union (the Charter) for those who face surrender to the United Kingdom and its dependencies.

49. In deciding whether or not to enforce surrender on foot of a TCA arrest warrant the executing judicial authority in a Member State must apply a different test to the two-step test applicable in case of surrender to Member states set out in paras.51 to ?54 of the judgment of the Court of Justice in Alchaster. This "assumes that both (sic) the rules and practices that are generally in place in [the United Kingdom] and,..., the features of that person's individual situation are to be taken into account simultaneously."

50. This test requires that "the executing judicial authority must carry out an independent assessment in light of the provisions of the Charter." It is not sufficient to rely on case law of the Supreme Court of the United Kingdom or the general guarantees of the judicial system of the United Kingdom: see paras. 82 and 83 of that judgment.

51. If there is a sufficiently solid factual basis for a finding that there is a real risk that if a person is surrendered to the United Kingdom will give rise to a breach of a specific right guaranteed by the Charter, such as that conferred by Article 49(1), surrender may be refused. That decision must be based on objective, reliable , specific and properly updated information establishing substantial grounds for believing that there is a real risk of a breach of an Article of the Charter: see paras. 84 and 85 of that judgment.

52. The mechanisms which the High Court is obliged to deploy in securing the benefit of these rights is, where necessary, to seek additional information which it considers necessary in order to make a decision, as allowed by Article 613 of the TCA, and to seek such additional guarantees from the United Kingdom as may be appropriate to secure such rights.

53. In Ireland, the statutory presumption set out in s.4A of the 2003 Act applies to all aspects of compliance by the United Kingdom with the TCA. That presumption includes a factual presumption that an application to the High Court to enforce a TCA arrest warrant does not involve abuse by the issuing state of the process of the executing judicial authority.

54. Article 597 of the TCA refers to the principles of cooperation and proportionality. It states that:

"[c]ooperation through the arrest warrant shall be necessary and proportionate, taking into account the rights of the requested person and the interests of the victims, and having regard to the seriousness of the act, the likely penalty that would be imposed and the possibility of a State taking measures less coercive than the surrender of the requested person particularly with a view to avoiding unnecessarily long periods of pre-trial detention."

1. The 2003 Act, as amended, extends recognition to decisions by United Kingdom issuing judicial authorities to issue TCA arrest warrants. The United Kingdom executing judicial authorities recognise arrest warrants issued by the High Court on the same basis.

2. As the system is based on mutual recognition, it logically follows that the capacity of the High Court as executing judicial authority to go behind an arrest warrant and refuse surrender for reasons which are outside the range of matters expressly permitted by the 2003 Act is very limited. In general, executing judicial authorities may only refuse to execute these warrants on grounds expressly permitted by the 2003 Act.

3. Article 1.2 of the Framework Decision required Member States to put in place mandatory laws obliging their executing judicial authorities to give effect to arrest warrants.

4. Article 1.3 of the Framework Decision states that "[t]his Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union." Section 37 of the 2003 Act gives effect to this provision.

165. As originally enacted, s.37(1) of the 2003 Act provided that " [a] person shall not be surrendered under this Act if- (a) his or her surrender would be incompatible with the State's obligations under-(i) the Convention, or (ii) the Protocols to the Convention, (b) his or her surrender would constitute a contravention of any provision of the Constitution (other than for the reason that the offence specified in the European arrest warrant is an offence to which section 38 (1)(b) applies), (c) there are reasonable grounds for believing that- (i) the European arrest warrant was issued in respect of the person for the purposes of facilitating his or her prosecution or punishment in the issuing state for reasons connected with his or her sex, race, religion, ethnic origin, nationality, language, political opinion or sexual orientation, or (ii) in the prosecution or punishment of the person in the issuing state, he or she will be treated less favourably than a person who- (I) is not his or her sex, race, religion, nationality or ethnic origin, (II) does not hold the same political opinions as him or her, (III) speaks a different language than he or she does, or (IV) does not have the same sexual orientation as he or she does, or (iii) were the person to be surrendered to the issuing state- (I) he or she would be sentenced to death, or a death sentence imposed on him or her would be caried out, or (II) he or she would be tortured or subjected to other inhuman or degrading treatment ."

166. These grounds for refusal are now supplemented and to some extent duplicated by a requirement to refuse surrender where that would be incompatible with a right secured by the Charter. The obligation of the United Kingdom under Article 524 (2) of the TCA does not extend to enforcing the Charter, even though the fundamental rights recognised by the Charter largely mirror those recognised by the Convention. Examples relevant fundamental rights secured by the Charter in the case law cited by the Court of Justice at para.52 of its judgment in Alchaster are those enshrined in Articles 4, 7, 24 and 27. Alchaster? was concerned with a surrender to face a trial where there was an issue that the penalty in the event of a conviction might exceed that permitted by Article 49(1) of the Charter.

1. Articles 3 and 4 of the Framework Decision set out grounds for mandatory and discretionary non-execution of the European arrest warrant. Article 4 of the Framework Decision provides no support for the proposition the law of the European Union allows Member States to confer a discretion on executing judicial authorities to refuse to execute an arrest warrant on grounds of passage of time between commission of an offence and commencement of criminal proceedings; rather the reverse.

2. Article 4 of the Framework Decision provides that "[t]he executing judicial authority may refuse to execute the European arrest warrant: ...4. where the criminal prosecution or punishment of the requested person is statute-barred according to the law of the executing Member State and the acts fall within the jurisdiction of that Member State under its own criminal law."

3. Articles 600 and 601 of the TCA set out the grounds for non-execution of a TCA arrest warrant. Article 600 of the TCA mirrors Article 3 of the Framework Decision. Article 601(1) of the TCA mirrors Article 4. 4 of the Framework Decision and provides that "[t]he execution of the arrest warrant may be refused: ...(d) if the criminal prosecution or punishment of the requested person is statute-barred under the law of the executing State and the acts fall within the jurisdiction of that State under its own criminal law".

4. Provisions of the 2003 Act, as enacted, availed of the limited latitude afforded by Article 4 of the Framework Decision to refuse to execute a European arrest warrant. Arguably, s.40 of the 2003 Act went beyond what was permitted by Article 4.4 of the Framework Decision. This provision appears to have had a purpose of extending the statute-bar opt-out from surrender to include any case where Irish Courts would exercise discretionary power to a prevent a trial of an offence also prosecutable within the State on grounds of passage of time. This section was repealed by s.19 of the Criminal Justice (Miscellaneous Provisions) Act 2009.

5. It is easy to understand why the Oireachtas repealed that provision. Those who are suspected of criminal activity, especially serious criminal activity, and in respect of whom evidence is available which meets the high standard which justifies a decision to institute a prosecution, can have no legitimate expectation that they will not eventually be subject to a trial in due course of law.

6. If such persons are subject to an application for surrender to another state to face trial, they cannot expect to continue to benefit from statutory rules founded on national exceptions which are not permitted by the Framework Decision or the TCA. A fortiori, the courts may not sanction the development of discretionary non-statutory grounds for refusal to surrender which are neither mandated nor permitted by Articles 1.3, 3 or 4 of the Framework Decision, nor by the equivalent provisions of the TCA, nor necessitated by the need to secure respect for fundamental rights guaranteed by EU law.

7. Delay in the sense of passage or elapse of time cannot of itself be a basis for discretionary refusal by the executing judicial authority to enforce an arrest warrant. It does not come within any ground permitted by 2003 Act, which implements the Framework Decision and the TCA.

8. The decision of the Supreme Court in Minister for Justice Equality and Law Reform v. Stapleton ([2007] IESC 30) [2008] 1 IR 669 is authority for this proposition. This precluded any enquiry by the High Court, based on Irish domestic rules, as to the possibility of a fair trial in the issuing state as a result of passage of time between an alleged offence and the issue of a European arrest warrant. In Minister For Justice v. S.M.R. ([2007] IESC 54) [2008] 2 IR 242. The Supreme Court citing Stapleton, rejected an argument that a postponement of issue of a European arrest warrant to await a proposed change to the 2003 Act was an abuse of process of the High Court.

9. If lapse of time or delay are not recognised as a stand-alone ground for refusal to surrender, how can the result be any different by labelling these factors as giving rise to an abuse of process, or as contributing to an abuse of process?

10. The governing international instruments do not permit any bars to surrender based on the effects of delay by prosecuting authorities (which in some cases may also be judicial authorities) in an issuing state. These effects are only relevant to a proportionality assessment where a person whose surrender is sought advances a case that surrender would result in breach of fundamental rights recognised by s.37 of the 2003 Act and EU law.

11. In the context of the Framework Decision, Court of Justice of the European Union has recognised in Aranyosi and Căldăraru (Joined Cases C-404/15 and C-659/15 PPU) at paras. 82 and 83 that "limitations of the principles of mutual recognition and mutual trust between Member States can be made 'in exceptional circumstances'" and that, "as is stated in Article 1(3) thereof, the Framework Decision is not to have the effect of modifying the obligation to respect fundamental rights as enshrined in, inter alia, the Charter."

12. This means that executing judicial authorities have an obligation to have regard to whether a surrender should be refused on grounds that such refusal is necessary in order to secure rights conferred by the Convention and the Charter and to ensure that arrangements for surrender mandated by EU law are not being misused.

13. In support of the former proposition the Court of Justice refers to its Opinion 2/13, ECLI:EU.C:2014:2454 para.191 which states:

?"it should be noted that the principle of mutual trust between the Member States is of fundamental importance in EU law, given that it allows an area without internal borders to be created and maintained. That principle requires, particularly with regard to the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law."

1. While the principle of mutual trust ?between states does not apply in the case of surrenders which are governed by the TCA, following the decision of the Court of Justice in Alchaster, it is still the position that cooperation is based on a recognition by the United Kingdom and the EU and its Member States of the fundamental rights referred to in Article 524(1) of the TCA.

2. The Irish courts must be astute not to permit grounds for refusal of surrender which are not derived from any relevant Irish statute or instrument of European Union law, or fundamental rights recognised by European Union law, to be used to create a shadow framework of extra-statutory criteria deployed to justify refusal of surrender on grounds other than those mandated or permitted by the 2003 Act and EU law. Rules such as those which preclude enforcement of stale warrants issued by national courts do not apply by analogy.

3. The terms abuse of process and oppressive litigation do not appear in the 2003 Act, either as originally enacted, or in its amended form. These concepts are not referred to in Articles 3 and 4 of the Framework Decision which set out grounds on which an executing judicial authority must refuse to execute a European arrest warrant and the grounds on which states may allow their executing judicial authorities discretion to refuse to execute such a warrant.

4. The term " oppressive " was used in s.50(2)(bbb) of the 1965 Act. That provision was repealed, along with all the other provisions contained in Part III of the 1965 Act, by the 2003 Act. It follows that the 2003 Act cannot be construed as giving the High Court as executing judicial authority any discretion equivalent to that formerly conferred by this repealed provision.

5. The term " oppressive " also appears in s.14 of the United Kingdom Extradition Act 2003, which sets out circumstances in which a UK executing judicial authority must treat passage of time as a bar to extradition to a "Category 1 territory." Section 50(2)(bbb) of the 1965 Act and s.14 of the of the United Kingdom's Extradition Act 2003 have no equivalents in the Framework Decision or in the 2003 Act.

6. In both of these statutory provisions the term " oppressive " refers to the effect of the potential result if a surrender is ordered; not to the steps of initiating and pursuing the judicial processes leading to that decision. This covers much of the same ground as the proportionality test applied by executing judicial authorities in deciding whether considerations arising from Article 8 should override the public interest in enforcing surrender.

7. The first certified question does not use the term " oppressive " in this sense, but as referring to " oppressive litigation," viz litigation for an improper purpose. This question is directed to the idea that the application to the executing judicial authority to enforce a European or TCA arrest warrant in circumstances of delay, such as are described in that question, could of itself amount to an abuse of process.

8. The first of those circumstances is that a long delay by the Northern Ireland prosecuting authority in pursuing prosecution and surrender of John McNicholl and S?amus O'Kane? was not satisfactorily explained, in the sense that the prosecuting authority did not produce any good excuse for its inaction. The second is that that during that period of delay the whereabouts S?amus O'Kane and John McNicholl were known to that prosecuting authority.

9. John McNicholl and S?amus O'Kane are advancing an impossible contention. If an application for surrender were to be given short shrift by an executing judicial authority on the basis that these circumstances could show that it was an abuse of process, that would defeat the purposes of the Framework Decision, the relevant provisions of TCA and the 2003 Act. Delays by issuing states in carrying out investigations of suspects or in pursuing criminal proceedings against suspects, especially those who have fled to avoid prosecution or trial for serious offences, could not possibly give those suspects a basis to claim that it is an abuse of process to resort to procedures mandated by law to seek their surrender with a view to bringing them to trial.

10. If a person subjected to that process cannot get a fair trial as a result of lapse of time or if a trial should not proceed for some other reason associated with delay, that can be dealt with in the appropriate forum at the appropriate time. The appropriate forum is the courts of the issuing state. The appropriate time is after surrender.

11. Maladministration by prosecuting authorities in an issuing state which results in delays in initiating prosecutions or in securing surrender of suspects to face trial is not a basis on which an executing judicial authority can refuse surrender on grounds of abuse of process.

12. The interest in effective investigation of criminal offences and prosecution of suspects leading to a trial is primarily the public interest. Victims of crime also have a legitimate interest in securing these objectives. These are the interests and the persons who are most adversely affected by maladministration which has resulted in the delay in bringing these applications for surrender.

13. The primary interest of John McNicholl and S?amus O'Kane arising from passage of time attributable to maladministration relates to possible effect of passage of time on the fairness of their trials. They also have interests arising from rights under Article 8 of the Convention, acquired during the period between the date of the alleged offence and the date when the TCA warrants were issued.

14. If what John McNicholl and S?amus O'Kane contend for were correct, it would be irrelevant that they avoided facing trial for the offences charged in the TCA arrest warrants for 49 years, and for 20 years since 2004, ?and that the offences charged included murder, and possession of explosive substances, firearms and ammunition. A power which exists to secure them due process before the executing judicial authority, would become the means by which they circumvent a requirement that they demonstrate, by reference to their fundamental rights, that it would be disproportionate to surrender them to face trial.

15. If absence of a good excuse for a significant delay were to be a valid ground for refusal to surrender on grounds of abuse of process, then that delay would always be a bar to surrender. The executing judicial authority would replace the proportionality test with a national test.

16. What might that test be? It seems to be a test of whether or not the sense of amour propre of the executing judicial authority has been sufficiently offended by the duration of administrative delay in the issuing state and blameworthiness of those responsible for that delay.

17. The consequence of this would be to turn the logic of the surrender system mandated by the Framework Decision and the relevant provisions of the TCA on its head. It is not the role of the executing judicial authority to conduct an enquiry with a view to determining whether maladministration in the issuing state which has resulted in delay in initiation of the surrender procedure should be punished by a refusal to order surrender.

18. The term abuse of process is capable of being deployed in an imprecise fashion. Use of this term is best avoided by courts making decisions which involve assessing the causes and effects of delay and passage of time by reference to criteria permitted by s.37 of the 2003 Act.

19. It is sufficient to state that failures by prosecuting authorities to take steps at an appropriate time may lead to consequences which make surrender inappropriate on grounds recognised by s.37 of the 2003 Act and that a refusal by an issuing state to provide an explanation for what has happened may lead to a conclusion that the prosecuting authorities in that state are misusing the process.

20. The argument advanced by John McNicholl and S?amus O'Kane is based on a fundamental misunderstanding of the nature and purpose of the jurisdiction of executing judicial authorities to refuse surrender on grounds of abuse of process. It is also based on a misunderstanding of the confines of admissible grounds on which surrender may be contested under the rules mandated by international instruments and EU law, and as provided for by the 2003 Act.

21. Such judicial support as exists to support their argument is very thin on the ground. Comments in two judgments in the Supreme Court admit of a possibility that a long unexplained delay could have the effect of rendering an application for surrender governed by the 2003 Act an abuse of process. Those comments were never intended to widen the scope of the judicial power to refuse to enforce surrender on grounds of abuse of process.

22. The judgments of the Irish courts show that the circumstances which would justify a refusal of a request for surrender under the 2003 Act on grounds of abuse of process are rare. United Kingdom authorities on this power of the courts are to the same effect.

23. Analysis of some of the judgments of the High Court relating to surrender under the 2003 Act which refer to " abuse of process " shows that the real issue under consideration was whether the application for surrender contravened some constitutional or other legal right enjoyed by the person whose surrender was being sought which the Irish courts were obliged to uphold and vindicate.

24. For example, the term " abuse of process " has been used to characterise applications for surrender of a person which invited a different conclusion on some point of substance; usually of law, to that that which resulted in an earlier decision to refuse that person's surrender.

25. Thus, applications for surrender have been refused on grounds that they were attempts to relitigate a point of substance which has already been decided: see In Minister for Justice and Equality v. Bailey (Bailey No.2) [2017] IEHC 482; Minis ter for Justice and Equality v. Bailey (Bailey No.3) [2020] IEHC 528. **

26. Every litigant before an Irish court is entitled to rely on the certainty of a final decision on a substantive issue of law or fact; be that decision correct or incorrect. This is a feature of the right to due process before the Irish courts? exercising their functions, as guaranteed by the Constitution, and as recognised by EU law in the second para. of Recital [12] of the Framework Decision. Any proceedings against a person which seek to relitigate a discrete issue of substance which has already been finally determined in that person's favour can be categorised as an abuse of process.

27. I will give a more extreme example to illustrate this point. An executing judicial authority might categorise an application to it under the 2003 Act to surrender a person for trial on foot of a European arrest warrant on some trumped-up charge motivated by an intention to mete out political or religious persecution as being an abuse of process. However, the grounds on which surrender is refused are in fact based on the need to uphold Convention and Charter rights of the person surrendered. These grounds are squarely within Article 1.3 of the Framework Decision, s.37 of the 2003 Act and EU law. It is unnecessary to resort to any domestic law concept of abuse of process to arrive at the result.

28. If the matters relied on by a person resisting surrender are insufficient to justify refusal of surrender on grounds permitted by s.37 of the 2003 Act and EU law, it is impossible to see how a different outcome could be achieved by examining the same material through the prism of abuse of process.

29. The power to refuse surrender on grounds of abuse of process has no relevance to decisions which involve assessment of the effects of delay and passage of time by reference to criteria permitted by EU law, as provided for by s.37 of the 2003 Act. It is sufficient to state that failures by prosecuting authorities to take steps at an appropriate time may lead to consequences, in the sense of effects, which make surrender inappropriate on grounds recognised by EU law, as provided for by s.37 of the 2003 Act

30. The ambit of the power of a court to prevent, or to refuse to entertain a legal proceeding on grounds of abuse of process is very narrow. I refer to an explanation given by Barron J. in Ryan v. Director of Public Prosecutions [1988] IR 232 at p.234, quoted with approval by Donnelly J. at para.[82] of her judgment in Minister for Justice and Equality v. Downey [2019] IEHC 119.

31. In Ryan the applicant attempted to obtain an order of prohibition preventing any attempt to introduce statements made by him as evidence at a retrial due to take place in the Circuit Court on the ground that they had been ruled inadmissible in an earlier trial which did not conclude with a verdict. He claimed that he was entitled to retain the benefit of that ruling and that it would therefore be an abuse of process to attempt to have those statements admitted into evidence on a retrial. He relied on the decision in O'Callaghan v. O'hUadhaigh [1977] I.R 42 and Kelly v. Ireland [1986] ILRM 318 .

32. The first of those authorities concerned a trial in the High Court was abandoned and fresh prosecution was commenced in order to avoid a ruling by a trial judge on an issue relating what could be included in an indictment. In the second, the High Court refused to entertain a claim for damages for assault grounds on grounds of abuse of process, where those allegations had had been rejected during a criminal trial of plaintiff.

33. Barron J. explained the basis on which courts exercise their power to disallow misuse of their powers on grounds of abuse of process in the following terms:

"The expression 'abuse of the process of the court' is one which refers to a contamination of the entire proceedings. In the two cases relied upon the objection is to the fundamental basis upon which the proceedings are brought. No such objection is laid in the present case.... The applicant is concerned solely with advantage. That is not the test. Justice must be done and must be seen to be done. Where proceedings are commenced which violate this principle, then they are an abuse of the process of the court."

1. The argument based on passage of time which is advanced in these appeals is also concerned " solely with advantage." In order for this argument to succeed, it would be necessary to identify and then confine focus on such rights, if any, as John McNicholl and S?amus O'Kane may enjoy to expeditious enforcement by the Northern Ireland authorities of the criminal process against them, as if no considerations other than fact that they were charged with serious offences were relevant.

2. The main rights which John McNicholl and S?amus O'Kane enjoy to expeditious enforcement of the criminal process by prosecution authorities in Northern Ireland are part of their rights to due process and a fair trial in Northern Ireland after their surrender. These are not matters for the executing judicial authority.

3. In reality, expeditious enforcement by the Northern Ireland prosecution authorities of the criminal and surrender process would be the very last thing which any rational person in the shoes of John McNicholl and S?amus O'Kane would have wanted or hoped for. That person would have hoped that no action would be taken, ?and to spin out any litigation which might lead to surrender ?or a trial until prosecution for offences charged in the TCA arrest warrants became unviable, or until amnesty legislation would be passed.

4. Minister for Justice and Equality v. J.A.T. (No. 2) ([2016] IESC 17) [2016] ILRM 262 is an example of a decision where something described as an abuse of process was in fact just one of a number of factors which led to a refusal of surrender. That case related to an application for surrender on foot of a European arrest warrant. An earlier application was proceeded with as far as the Supreme Court, notwithstanding knowledge of legal obstacles. This application had failed in 2010. A second European arrest warrant issued one and a half years later. This led to the arrest of the respondent and a second set of proceedings which ended up in the Supreme Court.

5. The reason why the respondent in J.A.T. (No 2) succeeded in resisting the application for surrender on foot of the second warrant is set out in para.10 of concurring judgment of O'Donnell J. at p.292 of the report. It is clear from this judgment that the effects of delay by the issuing state as a result of the manner in which it advanced and persisted with the first warrant and then the second warrant tipped the balance in favour of a refusal to surrender. This was a straightforward application of the proportionality test based on rights arising from Article 8 of the Convention.

6. A majority of the other members of the Supreme Court agreed with this concurring judgment. It therefore represents the judgment of that Court on those issues.

7. It would require a considerable leap to countenance a suggestion that an issuing state, by proffering an arrest warrant for execution under the 2003 Act which will enable the High Court to consider issues such as whether change of circumstances of a person being surrendered during a period of delay by that State, can be properly described as attempting to engage in a " true abuse of process " of the sort which would normally lead to an application not being entertained or struck out: see paras. 9 and 12 of the Judgment of O'Donnell J. at pp. 291 to 293 of the report.

8. As O'Donnell J. made clear in his analysis of "[d]elay and lapse of time" at para.9 of his judgment in J.A.T. (No. 2), he did not regard the elements of delay relating to the first or second European arrest warrant as warranting a conclusion that an abuse of process of the High Court as executing judicial authority been established.

9. The full text of para.9 of that judgment is worth quoting because it accurately summarises the legal position relating to abuse of process as follows:

"[t]he fact that the crimes alleged here date back to 1997 is more properly to be considered in the context of lapse of time rather than delay. There is, as I understand it, no suggestion that the United Kingdom authorities ought to have detected the alleged crime any earlier. In any event, such an allegation is one which a court should be extremely slow to entertain. The relative antiquity of the offences, however, is relevant in considering those elements of delay in the issuance of the first warrant, and more importantly, the second warrant, and its execution in this jurisdiction. I do think that these delays are factors in the Court's assessment, but, regrettable and worthy of criticism as they are, in my view they fall far short, by themselves, of establishing any abuse of process or grounds for refusal of surrender. Nor do they do so when taken in conjunction with the fact that a second warrant was issued."

1. O'Donnell J. made the following observation which is relevant to first certified question at para.[8] of his judgment, at p.291 of the report:

"I also accept that while abuse of process normally involves an improper motive (and certainly can be more readily identified when that is present) it is not necessarily confined to such circumstances. It may be that a situation can be arrived at in an individual case, perhaps without culpability and certainly without improper motive, but where it can nevertheless be said that to permit proceedings to continue would be an abuse of the Court's process in the sense that it would no longer be the administration of justice. I also do not rule out the possibility that there may be a case where the facts are so extraordinary that they call for explanation. However, in the present context, it must be kept in mind that the issue for an Irish court, in respect of which it is required to administer justice, relates principally to the surrender, and it is the process in relation to that which must be the primary focus of any such inquiry. I would not, therefore, have considered that the issuance of a second warrant in this case amounts to, or even comes close to being an abuse of the process. I do not think that if the second warrant had been issued reasonably promptly, and in relation to a person of full health, and with less forceful claims under Article 8, that it would be considered that the issuance of a second warrant after refusal of surrender on an earlier warrant would, by itself, be a ground for refusal of surrender."

1. In Downey, Donnelly J. considered that the explanation by Barron J. of abuse of process in Ryan v. Director of Public Prosecutions accorded with the view of O'Donnell J. in J.A.T. (No. 2) that the power of a court to dismiss an application on ground of abuse of process related to "an abuse of the Court's process in the sense that it would no longer be the administration of justice [emphasis added]."

2. In delivering judgment for the Supreme Court in Minister for Justice and Equality v. Vestartas [2020] IESC 12 McMenamin J. touched on this issue of delay in issuing an European arrest warrant. He pointed out at para.93 of his judgment that the judgment of O'Donnell J. in Finnegan did not establish any general principle that delay in processing a European arrest warrant could be a ground for refusing surrender. He made the following observation at para.93: "though a matter of legitimate concern, in this case the delay is to be viewed against the respondent's private and family circumstances. Unless truly exceptional or egregious, delay will not alter the public interest, although there may come a point the delay is so lengthy and unexplained as to constitute an abuse of process, or raise other constitutional or EHCR issues."

3. These observations of O'Donnell J. and McMenamin J. on abuse of process in the context of unexplained delay relate to the duty of the executing judicial authority to ensure that its process is not misused by authorities in an issuing state. The misuse need not necessarily be deliberate.

4. In exercising that function, an executing judicial authority has a supervisory role. It can request further information from a issuing state. The question of whether the issuing state can show a good reason for delay is relevant to the strength of the public interest in surrender, the strength of rights flowing from countervailing family life circumstances of the person whose surrender is sought during any period of maladministration which caused delay, and whether the late application for surrender might involve some abuse of the system provided for in the relevant international instruments.

5. If an issuing state refuses to engage with a legitimate enquiry by an executing judicial authority to provide information on what was happening during a period of apparent inactivity, then it is failing to co-operate with the process mandated by the 2003 Act. Evidence of lack of material deception or lack of cooperation would justify a conclusion that the application for surrender should be rejected as made in bad faith and as such an abuse of process of the executing judicial authority. There is no indication of the presence of that type of abuse of process in these cases.

6. In cases where delay cannot be satisfactorily explained, in the sense that the prosecuting authorities in the issuing state are unable to produce a good excuse for inertia, an executing judicial authority does not enjoy the power to refuse surrender as a disciplinary sanction even where officials have engaged in " prevaracaci?n."

7. Even if such indolence or obstructiveness is shown or inferred to be the explanation for delay, this could not, of itself, operate as a ground for refusal to surrender. The strength of the public interest, which includes the rights of victims, that those charged with crimes should be surrendered to face trial will not necessarily be diminished by such abuses. Such indolence might have the opposite effect.

8. The executing judicial authority must examine explanations for and consequences and effects of delay caused by maladministration, inertia and inefficiency, when set against fundamental rights of the person whose surrender is sought and apply the proportionality test. Lack of explanation for a delay is part of this mix. These factors may become relevant in considering the strength of some countervailing fundamental right of the person whose surrender is sought which may justify a refusal of surrender: see the judgment of McMenamin J. in Vestartas at paras. 88 and 89 and the judgment of Charleton J. in Minister for Justice and Equality v. Palonka [2022] IESC 6 at paras.25 to 30.

9. In Palonka the respondent was given a suspended prison sentence of 10 months in Poland in 2002 relating to a drugs offence committed in 1999 when he was 18. That sentence was conditionally stayed. He committed a second offence in 2003 and was sentenced to a year in prison. That sentence was appealed. He left for Ireland and has remained there since, establishing a home and a family. In 2006 his 2002 suspended sentence was activated on account of his second offence. In 2012 the Polish authorities sought his surrender to serve the sentence for the later offence. This request was rejected by the Court of Appeal in 2015. A Polish court issued a European arrest warrant in respect of the activated suspended sentence of 10 months imprisonment in early 2019. This was endorsed for execution and he was arrested on foot of it in Ireland in late October of that year.

10. This delay and failure by the authorities in the issuing state to pursue surrender of the respondent on the 2006 warrant until 2019 which were unexplained were relied on by the respondent, and were characterised by him as abuse of process. It is apparent from the judgments delivered in the Supreme Court that these factors were in taken into account, not on the basis that the application for surrender was an abuse of process of the executing judicial authority, but because Article 8 of the Convention was engaged. It did not matter that the finger of blame for delay in joined-up enforcement could be pointed at any particular judicial or other functionaries who were responsible operating in various places in Poland for ensuring that the respondent served his sentences.

11. Charleton J. put the matter thus at para. 31 of his judgment: "[t]his is not a case of potential infringement of fundamental rights. Rather, what is involved is a real, exceptional and oppressive disruption to family life in the most extreme and exceptional of circumstances. Of itself, that would not justify a refusal to surrender as delay does not create rights, but delay may enable the growth of circumstances where a new situation has emerged that engages Article 8 of the European Convention in a genuinely exceptional way as set in the context of the individual procedural circumstances of the case."

12. As Hogan J. pointed out at paras.15 and 16 of his concurring judgment, the procedural history was relevant to the reason why it was appropriate to refuse surrender. He referred in this judgment to the case being "exceptional... within the meaning of Aranyosi and Căldăraru," meaning that the delay was not "sufficiently excused."

13. However, Hogan J. made this comment within a context - that Mr Palonka has been residing in Ireland with his family since 2005. Exceptional circumstances which would justify a refusal of surrender of a person on grounds of breach or anticipated breach by authorities in an issuing state of protections afforded by the Convention or the Charter must be proved.

14. This concept of exceptionality has a particular meaning. It means that the normal presumption, which is that, at least in the context of TCA arrest warrants, the judicial authorities in an issuing state have adhered to and will adhere to fair procedures and uphold fundamental rights of the person whose surrender is being sought, cannot be relied on. There must be strong evidence of this before any such finding could be made against an issuing state which would justify refusal of surrender.

15. In my view, ?the judgment of Hogan J. in Palonka is not authority for the proposition that some test other than the proportionality test, such as the " inordinate and inexcusable delay " test for whether civil proceedings should be dismissed on grounds of delay by the party responsible for prosecuting them, should be adopted in cases where the proportionality test is the appropriate test to apply. I do not interpret Hogan J. as deciding that EU law requires that the executing judicial authority must refuse surrender where the prosecuting authorities in an issuing state cannot produce a good explanation for a long administrative delay.

16. How would the Court of Justice of the European Union respond if it were asked to provide guidance on the first certified question of law?

17. The first matter which, I think, can be confidently stated, is that the Court of Justice would be disinclined to allow national courts of the Member States to apply rules of domestic law which might result in inconsistent outcomes in the Member States and other states adhering to the principles set out in the Framework Decision, the EU-Iceland Norway Agreement and the TCA. The second matter is that the EU law is more concerned with effects, than with ascertaining intentions or accepting professions of intentions.

18. The result is that the European Court of Justice adopts a functional approach in giving guidance on how to carry out assessments. In the context of surrender under the system mandated by the Framework Decision and analogous international instruments, what matters is effects; not lack of intentions, indolence or motives of decision-makers such as police and prosecution authorities.

19. Assessment by executing judicial authorities of whether surrender should be ordered sometimes involves a balancing exercise. Is the interest in protecting a fundamental right relating to the person whose surrender is sought so strong as to override the interest in due enforcement of the surrender process mandated by the 2003 Act and EU law? If the effect of a decision to surrender for trial or to serve a sentence would be disproportionate, when set against such rights, then those rights must prevail.

20. The Court of Justice of the European Union has issued definitive guidance that surrender under these procedures, where followed, may only be refused in exceptional circumstances. These circumstances must be based on the obligations of the executing judicial authority to secure fundamental rights guaranteed by the Convention and the Charter. Article 1.3 of the Framework Decision affirms these protections. Section 37 of the 2003 Act, while not expressly referring to the Charter, gives effect to these principles in Irish domestic law.

21. In general, the test applied in surrender between Member States of the EU is the two-step test set out in paras. 51 to 54 of the judgment of the Court of Justice Alchaster. The TCA provisions are not based on the principle of mutual trust between states and Article 604 of the TCA allows additional guarantees to be sought. Where an issue arises in an application under a TCA arrest warrant the executing judicial authority must also carry out an independent assessment in light of the provisions of the Charter: see para.84 of the judgment of the Court of Justice in Alchaster.

22. The recitals to the Framework Decision confine applicability of due process protections of ?national constitutional law of the Member States to due process in the procedure of the executing judicial authority. Consistent with this was the repeal of the element of s.37(1)(b) of the 2003 Act by s.31 of the European Arrest Warrant (Amendment) Act 2024 (the 2024 Act). This repeal is subject to a transitional provision in s.2 of that Act, which applies the 2024 Act to a relevant arrest warrant endorsed in accordance with s.13(2) of the Act of 2003 or produced to the High Court under s.14(4) of that Act after the date of commencement of the 2024 Act, which was 1 May 2024: see Article 2 of the European Arrest Warrant (Amendment) Act 2024 (Commencement) Order 2024 (S.I. No 180 of 2024).

23. I have ascertained from the Central Office of the High Court that the TCA arrest warrant in the case of John McNicholl was endorsed by the High Court on 15 May 2024 and that the TCA arrest warrant in the case of S?amus O'Kane was endorsed on 13 May 2024. It follows that any lines of reasoning which are based on conduct of the investigating and prosecuting authorities in Northern Ireland to date which, if they occurred within the State, might preclude their trial on grounds founded on rights conferred or recognised by the Constitution cannot be entertained as a basis for refusing their surrender.

24. Again, it is easy to see why this should be so. Executing judicial authorities in states which have adopted the Framework Decision, and the relevant provisions of the TCA and the EU-Iceland Norway Agreement must perform their functions so as to secure uniform protections for fundamental rights recognised by EU law, as contained in the Convention and, in the case of Member States of the EU, ?the Charter.

25. All of the states which adhere to the Framework Directive and the surrender arrangements in the TCA and the EU-Iceland Norway Agreement are parties to the Convention. Absent evidence? such as existed ?in the context of a right vouchsafed by the Charter in Alchaster, it is to be assumed that ?protections afforded by the Convention will be applied to their national processes and that these protections will be sufficient. These processes include both trial process and the process of initiating the issue of a European arrest warrant or TCA arrest warrant in a issuing state.

26. This assumption is reinforced by s.4A of the 2003 Act, as amended, which states that "[i]t shall be presumed that the issuing state will comply with the requirements of the relevant agreement unless the contrary is shown." This is an evidential presumption.

27. So does the High Court have power to dismiss an application for surrender just because an issuing state is unable to produce an explanation for not moving forward with a prosecution or an application for surrender which excludes some form of maladministration? The answer to this question is " no ". ? Abuse of process may only be relied on as a ground for refusal of a surrender sought under the 2003 Act where it is clearly demonstrated that the purpose or effect of the asserted abuse is such as is to undermine the enquiry which the executing judicial authority is obliged to conduct before making a decision on surrender.

28. If material relating to jury discussions were not protected by the ?strictly privileged and confidential, The judgments of the High Court and this Court in Downey [2019] IEHC 119 and [2019] IECA 182 provide a good illustration of how this rule has been applied to circumstances which are somewhat similar to those applicable in these appeals. In that case the High Court (Donnelly J.) rejected Mr Downey's objection to surrender to Northern Ireland to face charges relating to offences of alleged murder and possession of explosives arising from a car bomb which killed two members of the Ulster Defence Regiment in August 1972.

29. In the High Court Mr Downey raised a series of issues and claimed that their cumulative effect was an abuse of process. Included among those issues was delay and a submission that he had the benefit of a letter of comfort from the Northern Ireland Office stating that, based on information currently available in 2007 he was not wanted for arrest questioning or charge by the police and that the PSNI was not aware of interest in him from any other UK police force. He was advised that if any other outstanding offences came to light they would have to be dealt with in the usual way. He had succeeded in persuading a court in England that, because of the assurances conveyed in this letter, he should not be tried on different charges, arising from the Hyde Park bombing.

30. Donnelly J. pointed out that there was no evidence that this letter gave him immunity from prosecution according to the law of the issuing state. On the delay point, she reaffirmed the general rule by stating as follows at para.30 of her judgment: "[i]t is well established in this jurisdiction that the passage of time itself will not be sufficient to prohibit the surrender of a respondent. Delay must be tied to a breach of a constitutional or an ECHR right before surrender will be prohibited. As part of a claim to a fair trial right, it is more correct to say that the requested person must demonstrate egregious circumstances, such as a breach in the system of justice in the issuing state before delay will be a ground for prohibiting surrender." I fully agree with this analysis.

31. Donnelly J. having rejected delay grounds, interference with family rights grounds, and letter of assurance grounds of objection as stand-alone grounds for refusing surrender, went on to consider whether, taken together they could amount to abuse of process and found that they did not. In substance her reason for this conclusion was that the public interest in his surrender for trial on very serious offences outweighed considerations based on breach of his rights to due process and his right to family life.

32. The executing judicial authority was obliged to take it as a given that the courts of Northern Ireland would comply with the Convention and any points about delay and ?the letter of comfort was a matter of law that could and should be adjudicated upon by those courts. The High Court could not and should not usurp the function of the courts of Northern Ireland to decide these points. The surrender process does not envisage any such exercise by an executing judicial authority.

33. Donnelly J. permitted an appeal to this Court on a certified point. This assumed that the purpose of the giving of the letter of comfort in 2007 was not for a purpose of misleading the appellant and touched on the fact that a fingerprint at the scene of the 1972 explosion matched his fingerprint taken at Gatwick Airport when he entered the United Kingdom in 2013. Could reliance on this be an abuse of process of the High Court which would justify a refusal to surrender? The answer of this Court to the certified question was " no ". ?The admissibility of that fingerprint was a matter to be determined by the courts of the issuing state.

34. Returning to these appeals, the learned High Court judge was correct in concluding that neither of these applications for surrender amounted to abuse by the issuing state or by the Minister for Justice, Home Affairs and Migration of its legal process as the executing judicial authority.

35. The learned High Court judge was also correct in concluding that any omission by the Northern Ireland prosecution authorities to seek surrender of S?amus O'Kane for trial of the Garvagh offences at the time of his proceedings seeking an order for his release under s.50 of the 1965 Act did not give him immunity from surrender to face trial for those offences under the TCA arrest warrant.

36. I agree with the learned High Court judge that there were periods of inaction by the prosecution authorities in the issuing state in the years between 2004 and 2024. I am prepared to infer that the issuing state has not provided any comprehensive explanation for very significant delays within that time-frame because there could not be any satisfactory way to justify or explain-away these? periods of prolonged inaction.

37. Those who were in positions of responsibility should have advanced preparations to prosecute John McNicholl and S?amus O'Kane and to seek their surrender for that purpose much more speedily in the period after 1 January 2004.

38. A striking feature in the case of John McNicholl is that a decision by the Director of Public Prosecutions for Northern Ireland and instruction to the Crown Solicitor to draft and apply for an European arrest warrant was not acted on. It is not clear whether this related to both the Dungiven and Garvagh incidents. No steps were taken on foot of this instruction for reasons which cannot be explained.

39. The information relating to S?amus O'Kane does not give the result of reviews conducted relating to him between 2007 and 2009. It merely states that in 2011 the PPS concluded that he no longer met the test for prosecution of murder, attempted murder and escape from custody. This information does not indicate whether any consideration was given during that period to whether he should be prosecuted on charges relating to the find of explosive substances, firearms and ammunition at Garvagh.

40. However, this inaction did not lead to any change in the circumstances of John McNicholl or S?amus O'Kane during that period of a sort which would justify a refusal to surrender them to face trial for these very serious offences in order to vindicate their rights under the Convention. Even if the true explanation for these delays was maladministration, I would be of that view, having regard to the seriousness of the offences charged.

41. There was sufficient factual material to support the conclusion of the learned High Court judge rejecting their claim that their surrender should be refused and I agree with his conclusion.

42. The offences charged in the two TCA arrest warrants are of the most serious nature. It is worth recalling that the ?impetus for the agreement which led to the ?Framework Decision was the terrorist bombing of a train in Madrid. There is therefore a very strong interest in securing surrender of those charged with having committed ?offences of the type charged in the TCA arrest warrants to ?face trial. The rights of victims of the murder of Constable McPherson and the wounding of Constable Elliott, and the corresponding obligation on the United Kingdom to secure that those against whom a prosecution for those crimes is justified be brought to trial must also be recognised. The same policy considerations apply to surrender of those charged with the Garvagh offences, which relate to illegally held firearms, ammunition and bomb making.

43. In my view no changes in health, home life or family circumstances of John McNicholl and S?amus O'Kane occurred in the period between 2004 and 2024 which would justify a refusal to surrender them to Northern Ireland for trial on grounds that such refusals are necessary to vindicate their rights under Article 8 of the Convention. The learned High Court judge arrived at the correct conclusion on that issue.

44. I attribute little or no weight in an evaluation for the purposes of Article 8 of the Convention or Article 7 of the Charter, to the consequences of life choices by John McNicholl and S?amus O'Kane during the long period when they were fugitive s, e njoying immunity from extradition. As fugitives they enjoyed no legitimate expectation of permanent immunity. They could not, by getting married, starting a family, buying a home or engaging ordinary life, diminish the Irish and EU interest in honouring commitments arising from the relevant provisions of the TCA.

45. The issues of health and family disruption identified in the affidavits sworn by John McNicholl and S?amus O'Kane and in the medical report are common to many cases where accused persons face criminal trials for historic offences in this jurisdiction. They do not warrant a refusal of surrender. These are not the sort of exceptional matters which would justify a refusal of surrender to face the TCA arrest warrant charges, having regard to guidance given by the Supreme Court relating to application of the test based on proportionality in Vestartas. These observations apply both to rights guaranteed to ?John McNicholl and S?amus O'Kane and to rights guaranteed their members of their families under Article 8 of the Convention and under Article 7 of the Charter.

46. John McNicholl and S?amus O'Kane can apply for bail in Northern Ireland and for early trials. I refer to Article 597 of the TCA. The vague assertion in an affidavit that there are delays in securing trials in Northern Ireland is insufficient to justify a further inquiry to the issuing state on this point.

47. The evidence establishes that no final decision was ever taken by the Northern Ireland authorities to abandon any attempt to prosecute John McNicholl for the offences charged in the TCA arrest warrant. Decisions by those authorities in the 1970s, 1980s and 1990s not to seek his extradition recognised that any attempt to have him extradited to Northern Ireland was unlikely to succeed. Those facts do not weigh in his favour in this application for surrender; rather the reverse. He was a fugitive who used this State and the United States as safe havens during those decades. His claim that surrender should be refused on the ground that the issuing state made an irrevocable decision not to seek his surrender lacks any factual support.

48. For these reasons I consider that both of these appeals should stand dismissed and that this Court should make such orders as are appropriate to secure the surrender of John McNicholl and S?amus O'Kane in accordance with the orders of the High Court dated 4 June 2025.

Result:     Appeals dismissed.

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