The Minister for Justice and Equality v Leopold [2020] IEHC 84 (30 January 2020)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

JUDGMENT of the Court delivered (ex tempore) on the 30th day of January, 2020 by

1. The European arrest warrant before the Court issued on 13th February, 2017 by an

issuing judicial authority (hereinafter, “IJA”) in Poland. The issuing authority seeks the

surrender of the respondent to prosecute him there for six offences allegedly committed

2. There is a very long history in relation to this application. Over the past 10 years, Poland

has sought the surrender of this respondent in relation to different matters on seven

occasions. Some of these relate to other offences than the present offences and I will

3. The issue that I am primarily dealing with in this judgment is the respondent’s argument

that the surrender is prohibited on the grounds of an issue estoppel, a res judicata or any

form of abuse of process based upon the exceptional circumstances of this case. It is

important therefore to deal with the chronology of what has occurred since European

Arrest Warrants (hereinafter, “EAW’s”) were issued for this respondent in Poland.

4. EAW 1 issued on the 11th May, 2010 and was endorsed on the 7th July, 2010. EAW 2

was issued on the 19th July, 2010 and was endorsed on the 22nd September, 2010. EAW

1 contained a single offence. EAW 2 referred to twelve offences. Only six of those

offences are contained in the present offence which is called EAW 7.

5. The respondent was arrested on the 27th June, 2011 on foot of the two EAW’s: EAW 1

and EAW 2. On the 7th December, 2011, the High Court ordered his surrender under

s.16 in respect of the single offence on the 30th November, 2011. That Order for

surrender concerned the two warrants [2010 71 EXT] (EAW 1) and certain of the offences

outlined in the second warrant (EAW 2) [2010 352 EXT]. It is accepted that Edwards J.

in the High Court refused to surrender the respondent on EAW 2 in respect of five of the

six offences, the subject matter of the present application. Edwards J. ordered his

surrender in respect of the other offences in EAW 2. What is relevant to the present

proceedings is that his surrender was ordered on offence E (V), namely the offence

allegedly committed on 24th March, 2005 in Poznan. This is the same offence as offence

No. V in the present warrant (EAW 7), contained at part E (C) therein.

6. On 28th December, 2011, the High Court ordered the respondent’s release pursuant to

Article 40.4 of the Constitution. This appears to have been in circumstances where his

surrender was not effected by Poland within the time allowed, and I will return to this

later in the judgment. From the information before this Court it appears there has never

been a clear indication from Poland as to why they did not effect surrender within that

7. Since the release under Article 40 there have been a number of relevant events. These

have been set out in a very comprehensive chronology prepared by the Chief State

Solicitor’s Office. I accept that chronology and it is incorporated into this judgment.

8. I will point to a number of brief matters. EAW 3 and 4 were issued in Jan/Feb 2012 and

were endorsed in May/June 2012 by the High Court. EAW 3 contains the same six

offences for which surrender was sought on EAW 1. A fifth EAW issued on the 7th

January, 2013 and was endorsed on the 19th March, 2013. The respondent was arrested

on the 23rd April, 2013 in respect of this EAW. EAW 5 also contained the same six

9. Over a number of months, these matters were adjourned. It appeared that the Polish

authorities were seeking to replace EAW 3. On the 8th November, 2013 the Minister

applied to withdraw EAW 3 on the basis of additional information provided by the Polish

10. The respondent was afforded opportunities by the High Court to engage with the IJA’s. In

Poland, he has engaged with the prosecutorial and judicial authorities in attempting to

deal with offences underlying the warrants by way of applications to the Polish

authorities. Over the course of his engagement, it was made known to this Court that he

has been successful in many of the offences on the various warrants. For example, he

reached agreement in respect of a large number of offences to be interviewed in the

11. On the 3rd December, 2012, EAW 4 was withdrawn at the request of the Minister

12. EAW 5 was adjourned repeatedly at the request of the respondent initially because of his

application to the Polish Court, but later because of his desire to await the decision of the

Supreme Court in the case of Minister for Justice and Equality v Lipinski [2017] IESC 26

(which was referred to the Courts of Justice of the European Union (hereinafter, “CJEU”)),

but was not decided by them in light of the intervening decision in the case of Samet

13. On the 30th May, 2016, the High Court endorsed EAW 6 dated the 8th April, 2016. EAW

6 contained the same six offences as EAW 1 and EAW 7. There was an application to

withdraw EAW 5 on the 13th June, 2016 and that was granted. The respondent was

arrested on EAW 6 on the 8th April, 2016. EAW 6 was then adjourned pending the

14. EAW 7 was endorsed on the 13th March, 2017 and on that date, EAW 6 was withdrawn.

The respondent was arrested on the same date on EAW 7. The matters then proceeded

15. It is noteworthy that the cover letter sending the EAW states that this is a partially

amended EAW because the Circuit Court in Poznan had decided to call off the search for

the respondent in respect of matters A and B referred to in EAW 6. This was in response

to the successful application by the respondent to deal with those matters in another

16. The respondent sought time to deal with the outstanding matters on EAW 7 in Poland and

in light of what had occurred, he was granted time. In relation to these offences this

particular prosecutor would not agree to him being interviewed in the embassy in Dublin.

The matter had a hearing date in March 2018 but the respondent sought to raise what I

will term, a “Celmer” type argument about the situation in relation to judicial

independence in Poland. The Court acceded to that adjournment and the matter was

adjourned from time to time on that basis. It was only on the 28th January, 2020 that

the matter was finally put in for hearing before me; the Celmer case having been finally

determined by the Supreme Court. There being nothing advanced specifically with regard

to this respondent’s situation, and the risk to him personally of an unfair trial, I am

satisfied that there is no reason by virtue of a fair trial reason as to why he cannot be

surrendered to Poland, and indeed that has not been advanced in this particular case,

17. The position therefore is that EAW 7 is to my best calculation, the fifth EAW for which his

surrender has been sought in respect of these particular matters. It is also apparent that,

subject to my further consideration of the initial decision of this Court to refuse surrender,

that the reason why so many EAW’s have issued is to take into account the domestic

proceedings in which the respondent has successfully challenged the underlying orders.

This resulted in the necessity for the Polish judicial authorities to reissue EAW’s to take

into account the changed requests for his surrender that were then being made. It is also

the case that the respondent sought and was granted delays in the final determination of

his cases on the basis of legal issues which required to be determined by the appellate

18. The respondent seeks to argue that his surrender should be refused on the grounds that

delay has led to an abuse of process and/or that to return him would be oppressive due to

that delay, and/or due to the multiplicity of warrants as well as his own circumstances

and also the fact that his surrender has previously been refused in relation to five out of

19. Further, the respondent seeks to argue that the High Court is bound by the finding of

Edwards J. that the respondent could only be surrendered on one out of the six charges

20. There is no disagreement between the parties that there is no prohibition or bar to a

second, or indeed subsequent EAW’s issuing in relation to the same proceedings. In

Minister for Justice and Equality v. Koncis [2011] IESC 37, Denham C.J. stated: -

“While there is no express provision in the European Arrest Warrant Act 2003 as

amended, referred to as ‘the Act of 2003’, for a second warrant to ‘go again’, it is

not expressly excluded. I am of the opinion that as long as the procedures are in

accordance with the Act of 2003 and that fair procedures have been followed that

there is no reason why a second warrant on the same offences could not be issued,

21. The above dicta requires that the circumstances of every individual case must be the

focus of any examination for the Court. It is also of significance that the CJEU has, in a

decision of the 25th July, 2018 in the case of A.Y. (Case C-268/17), ECLI:EU:C:2018:602,

held that a judicial authority of an executing Member State is required to adopt a decision

on any EAW forwarded to it, even where a ruling has been made on a previous EAW

concerning the same person and the same acts and the second EAW was only issued on

account of the indictment in the issuing Member State of the person concerned.

22. I am therefore satisfied that I must make a decision on this EAW in accordance with the

law pertaining to EAW’s. This does not mean that I have no regard to the legal

requirements as to how I must approach the task in hand but I must engage at least with

23. The Minister and the respondent have relied on many of the same cases often quoting

similar dicta. These cases are Bolger v. O’Toole [2008] 4 IR 780, Heywood v. Attorney

General [2008] IESC 60, Minister for Justice and Equality v. Tobin [2012] 4 I.R. 147,

24. In my view, the case of Minister for Justice and Equality v. Bailey [2017] IEHC 482 also

has relevance as does the decision of the Court of Appeal in Minister for Justice and

25. In relation to the position as to res judicata, I do not understand the respondent to press

this issue with any seriousness. It is necessary to note the following: it is not the law

that the question as to surrender is a matter that is finally decided when a surrender is

refused. That is inherent in the decisions of Koncis, Bolger and Heywood cited above.

While it may well be that some of the judgments refer to res judicata not applying where

the issues are technical ones, I am not satisfied that this means that where there has

been a decision on the merits of a particular case that that issue cannot be questioned at

all. Indeed, in light of the decision in A.Y., I am satisfied that an executing judicial

authority charged with making a decision on an EAW is bound to act judicially in

considering the matter. It may be that the principle of legal certainty or stare decisis may

cover a point at issue, but that is different to saying the precise principle of res judicata

26. In accordance with O’Donnell J. in J.A.T. (No. 2), I am satisfied that “when a fresh

warrant is issued, its validity becomes a separate issue. It is not res judicata because the

issue under the new warrant has not been decided.” In my view, that dicta, which

accords with the decision in A.Y., must be taken as superseding any reference in Attorney

General v. Gibson (Unreported, Supreme Court, Keane C.J., 10th June, 2004) to the

possibility of res judicata arising where there has been a final adjudication made within

the jurisdiction. That latter case applied to extraditions rather than surrender under the

2003 Act. I do note that Murray J. in Tobin expressly stated that the issue of res judicata

did not arise in Tobin as it had been conceded that it did not arise. I am satisfied

however, that res judicata does not apply to my consideration of this issue.

27. In relation to the question of issue estoppel as distinct from abuse of process or res

judicata, the Supreme Court authority is not so definitive. Murray J. in Tobin stated at

para. 145 that “res judicata should not be confused with the subsidiary principle of issue

28. Hunt J. in Bailey understandably had significant regard to this dicta. He considered that

no other case clearly denied the applicability of issue estoppel in surrender cases. From

the cases he cited, he was of the view that there was no reason to exempt extradition

litigation from the rationale behind the issue of estoppel. He held that the fact that

extradition litigation takes the form of an inquiry rather than an adversarial context

makes no difference to this conclusion. There is, according to Hunt J. at para.15:-

“the same interest in finality and certainty in relation to the outcome of such

inquiries as there is in other cases, together with the same necessity to avoid the

parties to such inquiries and the courts conducting same being vexed repeatedly

with issues previously and conclusively decided as between the same parties.”

29. In Bailey, the decision in question had been a reasoned one of the Supreme Court. I

should note at this stage that Hunt J. separately held that the doctrine of stare decisis

prevented surrender as he was bound by the decision of the Supreme Court.

30. In respect of the question of whether an issue estoppel arises in the present case, it’s

important to note that the earlier decision of Edwards J. was a reasoned decision of the

High Court in respect of the issue of correspondence of offences. His judgment, although

ex tempore, had been given the following day after it appears, significant legal argument

which spanned over two days. The judge made the decision within jurisdiction and while

he may or may not have been correct or incorrect in that decision, it was one which

affected the parties. The Minister never appealed that decision. It should also be noted

that the decision was one made between the same parties i.e. the Minister and the

respondent, and both parties had their opportunity to deal with this matter in terms of the

facts and the law. I should also note that it has not been opened to me that the law on

correspondence of offences has changed in the intervening time, although even if it had

that would have invoked a different argument based upon the reasoning of two of the five

Supreme Court judges in Tobin. I should also say that the issue of whether offences

correspond to offences in this jurisdiction are matters which require deep consideration of

the ingredients of criminal offences in this jurisdiction when compared with the facts that

are set out on the warrant requesting surrender. A decision on correspondence goes to

the heart of the issue of whether surrender/extradition is permitted. It is not a technical

issue of the type which had resulted in the District Court refusing the extradition in

Bolger, by way of example. It is also important in that respect, that EAW 7 (the present

EAW) does not “correct” any defect in the original warrant. There is no new information

provided to this Court. It is the same request being repeated in exactly the same

manner. This Court is being asked to decide exactly the same issue on the same facts,

i.e. is there correspondence of offences? The Minister seeks to argue that at least

another offence should be considered for the purpose of making a decision on whether

there is actually correspondence of an offence. In so far as we are considering whether

there is an issue estoppel, the situation is therefore, that all factors and all parties are the

same, save that the Minister wants to put forward a new offence for consideration by the

High Court, that is, a new legal argument for consideration. The Minister also makes the

request, but the Minister also makes a request to this Court to carry out its own

assessment of correspondence with regard to the full panoply of offences which could be

covered, including those considered by Edwards J. but rejected by him.

31. In terms of the ratio of the decision in Bailey. It is striking that the Minister never

appealed the decision of Hunt J. in Bailey. The principle of stare decisis applies to that

decision. In Re Worldport Ireland Limited (In Liquidation) [2005] IEHC 467 Clarke J in

“I have come to the view that it would not be appropriate, in all the circumstances

of this case, for me to revisit the issue so recently decided by Kearns J. in Industrial

Services. It is well established that, as a matter of judicial comity, a judge of first

instance ought usually follow the decision of another judge of the same court unless

there are substantial reasons for believing that the initial judgment was wrong.

Huddersfield Police Authority v. Watson [1947] K.B. 842 at 848, Re Howard's Will

Trusts, Leven & Bradley [1961] Ch. 507 at 523. Amongst the circumstances where

it may be appropriate for a court to come to a different view would be where it was

clear that the initial decision was not based upon a review of significant relevant

authority, where there is a clear error in the judgment, or where the judgment

sought to be revisited was delivered a sufficiently lengthy period in the past so that

the jurisprudence of the court in the relevant area might be said to have advanced

in the intervening period. In the absence of such additional circumstances it seems

to me that the virtue of consistency requires that a judge of this court should not

seek to second guess a recent determination of the court which was clearly arrived

at after a thorough review of all of the relevant authorities and which was, as was

noted by Kearns J., based on forming a judgment between evenly balanced

argument. If each time such a point were to arise again a judge were free to form

his or her own view without proper regard to the fact that the point had already

been determined, the level of uncertainty that would be introduced would be

disproportionate to any perceived advantage in the matter being reconsidered.”

32. Bailey is a judgment which is binding on this Court unless there are substantial reasons

for believing that the judgment is wrong. In my view, there is nothing obvious in the

Irish decisions opened to me that suggests that there was a clear error in the application

of the principle of issue estoppel. The only decision opened to this Court that might throw

some further light on this issue was that of A.Y. which was decided subsequent to Bailey.

I do not understand that decision to set aside principles of legal certainty such as those

that may incorporate questions of issue estoppel. At least, it does not do so to the extent

that I could be satisfied that there is a substantial reason to believe the decision of Hunt

J. was wrong. In my view, all that A.Y. appears to state is that an executing judicial

authority is required to take a decision on each EAW that is presented for execution. That

does not however, say how or what legal principles must be applied to the taking of that

33. In those circumstances, I am of the view that I am bound by the decision of Edwards J. in

so far as there was an issue estoppel involved as regards the correspondence of offences.

Therefore, I must refuse his surrender on offences C/ I, II, III, IV and the single offence

34. The only remaining offence is Offence V. I have carefully considered the transcript of

Edwards J. He gave full consideration to the question of correspondence and found

correspondence with the offence of an attempt to make a gain or cause a loss by

deception contrary to s. 6 of the Criminal Justice (Theft and Fraud) Offences Act, 2001.

On the basis of the decision in Bailey, I am also bound to follow the decision of Edwards J.

as there is an issue estoppel between the parties. That is not the end of the matter

however as I now must consider whether it would be an abuse of process not to surrender

“It is clear from J.A.T (No. 2) that there can be circumstances which justify the

High Court refusing an application for surrender on the basis of abuse of process.

But it is equally clear firstly that such cases require some exceptional circumstance

to justify such refusal, but, and critically, that the abuse asserted to exist must be

of the processes of the High Court here dealing with the application for surrender,

and therefore must relate to the application for surrender itself, and not to the

prosecution of the offences which the respondent will face if he/she is surrendered.

The different question whether there might be an abuse of process were the

respondent put on trial for the offences for which surrender is sought is not a

matter for determination in this jurisdiction on an application for surrender. Absent

any suggestion that there is no possibility of a fair hearing of any application to

have his trial on these offences stayed, and there has been no such suggestion

made by the appellant, it is in my view clear that any such question of abuse of

process will be a matter to be pursued by the appellant before the courts in the

36. Both sides agree that the abuse of process jurisdiction exists and there is no question in

the present case as regards abuse of process in relation to the respondent’s trial in Poland

and I have dealt with the fair trial issues. What is at issue is whether it is an abuse of

process to surrender him; in other words, is it an abuse of the High Court’s process.

37. In my view the most authoritative dicta on abuse of process comes from the decision of

the Supreme Court in J.A.T. (No.2). O’Donnell J. with whom the other members of the

Court agreed, stated that something is either an abuse of process or it is not. He

cautioned courts to be wary of introducing a concept of duty of care into the consideration

of warrants. He also acknowledged the considerable weight to be attached to the public

interest in ensuring that persons charged with offences face trial and referred to

international and EU obligations on Ireland under extradition and surrender agreements.

38. In upholding the decision to refuse surrender, O’Donnell J. referred to three factors which

were asserted cumulatively as leading to an order to refuse to surrender. With regard to

“The first factor is the undoubted fact that the first warrant was found to be

defective by order of this Court, and this is a repeat application. It is important, in

my view, to maintain, however, the clear distinction between the principles of res

judicata and the closely associated principles established in Henderson v.

Henderson and A.A. v. The Medical Council [2003] 4 IR 302, on the one hand, and

the law relating to warrants on the other. Henderson v. Henderson deals with the

question of a full inter partes hearing of civil proceedings under a process designed

to ensure that the true issues between the parties are identified (if necessary by

amendment of pleadings) and determined. The position in relation to warrants is

fundamentally different. Importantly, there is no process of amendment. The issue

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

issued, its validity becomes a separate issue. It is not res judicata because the

issue under the new warrant has not been decided. Technically (and this is a

technical issue) the issue now is the validity of the new warrant. Nor is it

appropriate to try to apply the concepts of bringing all claims at the same time. In

the case of warrants, that would amount to saying that only one warrant could ever

be issued. For these reasons and more, it has always been held that the fact that

an initial warrant has been found to be defective does not preclude the issuance of

a further warrant. (See ex tempore judgment of Denham J. in Bolger v. O’Toole

(Unreported, Supreme Court, 2nd December, 2002) and ex tempore judgment of

Keane C.J. in Attorney General v. Gibson, (Unreported, Supreme Court, 10th of

June, 2004). Indeed, it could be said that this is part and parcel of the law which

also requires that warrants should be scrutinised with rigour. For my part,

therefore, I do not think that concepts such as oppression and harassment by

repeated application, which employs part of the language used in Henderson v.

Henderson, should be used in dealing with warrant issues. There may be

circumstances in which the repeated issuance of warrants may be prohibited, either

because of bad faith, the seeking of tactical advantage, or otherwise. It may also

be appropriate to consider the impact on an individual of repeated applications. But

those situations require to be analysed in the context of the law relating to

warrants, and not of some hybrid version incorporating the principle in Henderson

39. I must therefore take into account the various issues in this case.

40. The first issue I have regard to is that this is the fifth application for his surrender in

respect of this matter. While the fact of repeated warrants is not determinative of the

issue, it must be noted that this is certainly an unusual number of requests. It is however

important to note that the main reason (apart from the first to which I will return) for this

number of warrants is that he has been successful in domestic proceedings and/or

applications to reduce the number of offences for which his surrender is sought. In favour

of the respondent is that it appears there may well have been less intrusive means of

41. It is of considerable importance that his extradition was ordered on this matter on the

30th November, 2011. A stay was put on the order for surrender later, but by 16th

December, 2020 the order for surrender was operable. He was not surrendered in time

and on the 28th December, by consent, his Article 40 application was conceded and he

42. On considering this matter over the past two days, I came across a reference to a letter

that the Minister for Justice and Equality had sent to the Polish IJA. It occurred to me

that this might have explained why the respondent had not been surrendered. By letter

contained at page 183 of the booklet, the Polish IJA had noted that EAW 1 “could not be

executed due to the formal reasons on your side, which you informed this Court about in

your letter of 9th January 2012”. I now have the letter of the 9th January, 2012 and it

gives to the Polish authorities an explanation as to why the Minister thought he had

further time in which to effect the surrender. It appears that a surrender date had

actually been agreed for the 28th December, 2011 which is the date he was actually

released pursuant to an order under Article 40.4 of the Constitution. It cannot be said

that the Polish authorities were in default by not surrendering him in time, and it is clear

that the Minister appears to have made an error based on a misinterpretation of a new

piece of legislation. In that regard, I want to make it clear that I do not consider that the

error was grossly negligent or made through want of diligence but was simply an error of

interpretation that unfortunately but perhaps unsurprisingly in the context of complex

43. After being notified of the problem with surrender, it seems that there was reasonable

diligence by the Polish IJA thereafter and the warrant was transmitted in due course and

endorsed. The respondent was not arrested until sometime later in October, 2012 and I

have no explanation as to why it took those months to arrest him, because it appears that

45. Nowhere in the voluminous set of papers that I have, does it explain why the Polish

authorities were of the view that they were entitled to seek his extradition for the other

offences, the offences for which Edwards J. had refused to surrender. According to A.Y.,

it seems that no matter what, there is an onus on this Court to take a decision. I have

not been provided with any correspondence that would indicate that the Polish authorities

were told of the refusal of surrender for some of these offences. I do note however that

at the beginning of the proceedings on EAW 7, it appears that both the Minister and

respondent were operating on the basis that there had been a surrender in relation to five

out of six offences, and not a refusal of five out of the six offences.

46. There has been a subsequent delay due to Lipinski and Celmer. In relation to the Celmer

issue, I am not of the view that this is a matter to which this Court must pay attention.

That occurred by necessary effluxion of time for proper consideration by a variety of

47. I am satisfied that most of the delay was actually due to the respondent seeking to have

the other offences for which his surrender was sought, dealt with by means other than

recourse to the EAW. There is therefore an explanation, together with the Celmer delay

for the vast bulk of the delay including the delay in the beginning on the surrender which

48. In relation to the offence for which he is sought, the maximum penalty is eight years. He

will have to be given credit for the time spent in custody which is about 28 days

subsequent to the order of surrender. The offence is attempted fraud. It dates back to

March 2005 which is now almost 15 years ago. It is clearly not a crime of violence,

however it is not an insignificant crime and it is one which carries a sentence of 8 years’

49. I have to consider his personal circumstances. He is settled in Ireland for a considerable

period of time, although it is not entirely clear how long. He lives here with his wife and

child. His mother in law is also in this jurisdiction. His father and mother separated when

he was young but he saw his father weekly. His father died in 2003. His mother has MS

and he does his best to help her in Poland. He was married in Poland in 1998 and they

had one son but this marriage only lasted until 2002 when his wife became involved with

50. He says it was because of this acrimonious divorce that he had problems with the law. He

later had problems with securing employment due to a combination of market conditions

and interference by his in-laws. He says he has resided in this jurisdiction since

November 2006 and has lived here in his own name, registered with the appropriate

authorities and went on holidays. He became involved in a second relationship here and

says he registered his second child’s birth with the Polish embassy in this jurisdiction. He

did not hide from the law and refers to his seven weeks in custody.

51. In my view, there is little if anything in his circumstances that is exceptional or even

unusual or in any way raises real concerns about respect for his private and family life I

accept that exceptionality is not the criteria for the enquiry under Article 8. If there were

solely an Article 8 application I would have no hesitation in saying that the public interest

in his surrender far outweighed his private interests. There may have been some delay

but this has mostly been explained. Although his surrender is sought for only one offence

it is not a minor one and carries a penalty of up to 8 years. In light of this offence, there

is a high public interest in his surrender. It will undoubtedly be difficult for his wife and

child if he were to be surrendered, but this is an unfortunate consequence of the public’s

interest in ensuring that alleged offences are prosecuted. Even after all this time reliance

52. Much of the respondent’s claim to an abuse of the process centred on the fact that he had

succeeded previously in resisting surrender on five out of six of these offences. That

argument falls away now that I have refused his surrender in relation to the others.

53. The strength of his argument lies in the fact that he was not surrendered in time. I do

not accept that this gives rise to an abuse of process by itself. I also do not accept that

the delay gives rise to an abuse of process. It is generally well explained. The short

period of unexplained time in 2012 between the endorsement and his arrest does not

54. The Polish authorities have repeatedly asked for his surrender on offences for which he

was refused, and of course I have to take into account that it is only one offence now and

that he has been successful in relation to the others. I do not accept that that in and of

itself amounts to an abuse of process. It is not clear that the IJA were told about the

refusal initially but it certainly appears that having asked again, they were not told by the

Minister or this Court or even the respondent that they should not pursue him. In any

event, even if they had been told, I do not think that it is an abuse of process per se for

an IJA to make a repeat request where it has been refused. The decision in A.Y. makes

clear that there is an onus to deal with warrants and it doesn’t say that there cannot be a

further request. Moreover, an IJA cannot be taken to understand that a particular

Member State’s legal system may operate such matters as issue estoppel or in other

jurisdictions res judicata and that further requests would be refused if not based on

55. Even when taken cumulatively, I am satisfied that there is no abuse of process in relation

to any of the factors the respondent has raised. I am satisfied there is no mala fides or

improper motive or indeed any real culpability. It is not, in my view or in the words of

O’Donnell J., a situation 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.” There was a failure to surrender him, the next EAW issued

promptly but was not executed because of the various reasons as set out above. The

respondent has as I have said, no substantive Article 8 issues in his case. The offence,

although not one of violence is reasonably serious. There is a high public interest in

surrender even in a case such as this. Nothing in the behaviour of either the Polish

authorities or the Minister brings this into the realm of an abuse of process. There was no

mala fides and even if there was some want of care in certain periods, there is nothing

coming close to this request for surrender no longer being the administration of justice.

56. I therefore order his surrender in respect of Count V in the EAW before me.

57. For the avoidance of doubt, I will also say that I am satisfied that his surrender is not

prohibited on any other ground as set out in s. 16 of the 2003 Act.

58. I therefore am satisfied that I can order his surrender in respect of the sole Count V in the

EAW before me. I therefore make the order under s. 16(1) that Mr. Leopold be

surrendered to such other persons as is duly authorised by the issuing state to receive

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> The Minister for Justice and Equality v Leopold [2020] IEHC 84 (30 January 2020) URL: http://www.bailii.org/ie/cases/IEHC/2020/2020IEHC84.html Cite as: [2020] IEHC 84

High Court of Ireland Decisions