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Cite as: [2008] IESC 11

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Judgment Title: MJELR -V- Johnston

Neutral Citation: IESC No. 11

Supreme Court Record Number: 105/07

High Court Record Number: 2006 97 EXT

Date of Delivery: 12 March 2008

Court: Supreme Court

Composition of Court: Kearns J., Macken J., Finnegan J.

Judgment by: Macken J.

Status of Judgment: Approved

Judgments by
Macken J.
Appeal dismissed - affirm High Court Order
Kearns J., Finnegan J.


Kearns J.
Macken J.
Finnegan J.



The Minister for Justice Equality and Law Reform
David Johnston

Judgment delivered on the 12th day of March by Macken, J.

This is an appeal by the respondent/appellant against the judgment and order of the High Court (Peart, J.) made on the 27th March 2007 pursuant to which he ordered him to be surrendered to the United Kingdom on foot of a European Arrest Warrant dated the 25th July 2006, the learned trial judge having been satisfied that there were no grounds on which he should refuse to surrender the respondent/appellant.

The grounds of appeal, numbering ten in all, can readily be divided into two main groups, and these two have been addressed in detail in the written submissions filed on behalf of each party. The first group concerns the underlying domestic warrant issued in April 2001 in Scotland, and the second concerns an allegation of delay in seeking his surrender and in particular the medical (including psychiatric) condition of the respondent/appellant during that delay period. The legal bases upon which these grounds are put forward are more fully considered below.

It is appropriate to deal with the second ground first, that is to say, that of delay. This is based essentially on two arguments. The first, of a general nature, is that the respondent/appellant came to Ireland some years ago, established himself here and has set up a business and moved on with his life. It is further argued that he has suffered from a medical/psychiatric condition which has been exacerbated by the present proceedings and is allied to a fear on his part that he will, if he is returned to the United Kingdom, be attacked and tortured, as he was prior to coming to Ireland. In these circumstances it is claimed that it would be in breach of his constitutional rights arising from the very act of surrender, to grant the order sought.

Insofar as the question of delay is concerned the learned High Court judge found as follows:

      “He (the respondent/appellant) goes on to say that it was at all times known that he was in Ireland. He believes that his surrender after such a length of time and in the light of his medical condition and his fears would be contrary to the principles of fundamental fairness and contrary to justice. He goes on then to say that he set up his home and business in Galway, that his life has moved on. I have considered the issue raised as to delay. It is a fact that the offences which have given rise to this application occurred in 2001, about 7 years ago … .

      As to the point of general delay since the date of commission of these offences, the respondent has not set forth in his grounding affidavit any prejudice which he says exists as to his capacity to defend himself against the charges.

      The medical ground really is the only aspect of delay which can be relied upon to any extent. I am satisfied from the medical evidence that his medical condition is not of sufficient gravity to merit this court in adopting the course that it took in the SR case, where much graver circumstances existed as to the risk to the life to that respondent. So I reject the point of objection raised in relation to delay both in its general plea and by reference to the medical condition.”

The learned High Court judge had before him the applicant’s affidavit which expressed considerable worry for his safety on the basis that he had been attacked in the past, “beaten and tortured” in Scotland and forced out of the country, and that he would have been killed if he had stayed. These events, assuming that they occurred and there is no reason to believe otherwise, are events which were carried out by former associates of the respondent/appellant. Although in the High Court he expressed the view that he could not be protected, that is to say, could not be protected by the Scottish police, there was no evidence adduced by the respondent/appellant that the appropriate prison authorities or the police forces in Scotland or elsewhere in the United Kingdom, if he was travelling through the United Kingdom to Scotland upon surrender, could not adequately and properly protect him. This court emphasises and accepts that the United Kingdom, as a signatory to the European Convention on Human Rights and Fundamental Freedoms, and otherwise in law, is obliged by all reasonable means to protect his safety, and the mere assertion that he could not be protected cannot be taken as evidence of that fact (see, L.C.B. v United Kingdom [1998] 27 E.H.R 212). There is no evidence that the learned trial judge misdirected himself in drawing the inferences which he did from the materials before him. In the circumstances the learned trial judge’s determination on this ground of fear, forming part of the delay ground, was not in any way incorrect.

Secondly, in relation to the question of general delay, a further relevant factor exists. When the alleged offences, which were for the possession, and the possession for sale, of various types of drugs including diamorphine (heroin), cannabis, ecstasy and another drug, took place in 2000, the respondent/appellant was admitted to bail. He did not meet his bail terms and failed to appear on the 9th April 2001 at the High Court in Glasgow and a warrant for his arrest was granted. Upon being granted bail, he had, on his own admission, fled to Ireland to avoid the charges and the unwanted attention of the persons who were intent on doing him harm. While he asserts that it was known he was in Ireland, there is no evidence to support this assertion other than that in the year 2005 he was stopped in Holyhead by the United Kingdom police (investigating possible terrorist activities) and gave an address in Galway. It has long been established in the case law that delay which has been caused by the actions of a person invoking delay as a ground for resisting an order cannot, in ordinary circumstances, be a valid ground to sustain the claim. In the case of the Minister for Justice Equality and Law Reform v Stapleton, unreported, the Supreme Court 26th July 2007, Fennelly J. said the following:

      “The authorities already cited support the rather obvious proposition that a person will not be heard to claim that delay in the prosecution of extradition proceedings is unfair or oppressive where he has himself been the author of the delay.”
I am satisfied that at least from 2000 or 2001 until June 2005 when the respondent/appellant was stopped in Holyhead, as mentioned above, the period of delay in question cannot be invoked by him for the purposes of resisting his surrender to the United Kingdom authorities on grounds of the alleged delay in seeking an order in that regard.

Even if the learned High Court judge could be said to have failed to have particular regard for the period of delay between when the respondent/appellant was stopped in Holyhead in 2005 and the time when the European Arrest Warrant issued in July 2006, and that period could be viewed as excessive, which I do not accept, the respondent/appellant cannot succeed on this ground, having regard to the decision of this court in the case of Minister for Justice Equality and Law Reform v Gardner, unreported, Supreme Court 30th July 2007, and in particular the following statement in the judgment of Finnegan J. :

      “Firstly the respondent is the principal culprit in relation to the delay upon which he relies, he having failed to attend court for the purposes of criminal proceedings against him, he is disabled from relying on that delay. Secondly and more importantly, the issue of delay is one to be dealt with in the court of trial, unless the respondent can establish by clear and cogent evidence a clear and fundamental defect in the system of justice of the requesting State such that the refusal of the application for surrender is necessary to protect his constitutional rights. In this case the appellant has not sought to establish any such defect in the system of justice in the United Kingdom of Great Britain and Northern Ireland.”
Having regard to the foregoing jurisprudence, I find that the learned trial judge did not misdirect himself in law in respect of any aspect of the grounds based on general delay. Nothing has been adduced in evidence by the respondent/appellant in respect of the judicial system applicable either in the United Kingdom, or more particularly in Scotland, which would constitute a clear and fundamental defect in the system of justice of the type referred to in the case of Gardner, supra.

Turning now to the final aspect of the claim based on delay, that relating to the medical and/or psychiatric condition from which the respondent/appellant suffers, I am of the view that the he has made out no case on this ground either. There is no doubt, having regard to the evidence filed, that he suffers from a psychiatric condition, which is of some considerable concern to his medical team, as is evident from the psychiatric reports furnished on his behalf, and exhibited in his own affidavit. The first of these is dated November 2006, the second December 2006 and the third at the end of January 2007. It seems clear from the first of these reports that the respondent, although in the country since 2000 or 2001, does not appear to have been admitted into any psychiatric unit nor does he appear to have been the subject of any psychiatric assessment or treatment in the State in the period prior to his admission to University College Hospital in early October 2006 and his first assessment there in early November 2006, he having been arrested on foot of the European Arrest Warrant on the 31st August 2006. He was however treated previously in the United Kingdom for his psychiatric condition and/or symptoms.

It must be accepted by this court, as it was accepted by the learned High Court judge, that his medical condition is serious. Several matters are, however, of importance. Firstly, in the most recent psychiatric report dated the 29th January 2007 the consultant forensic psychiatrist opined that the respondent/ appellant “clearly understood the nature of the charges against him, was familiar with court proceedings, understood the various plea options available to him and their implications, was fit to instruct counsel, was fit to follow proceedings, and was fit to be tried”. Secondly, more than one of the reports raised the possibility that some or other of his symptoms may or appear to have been feigned. Thirdly, it was recommended that the respondent/appellant was to be treated as a vulnerable prisoner given his reported history of significant harm to himself, and a recommendation was made in the most recent report that in the event the respondent/appellant was surrendered, his psychiatric position as well as the risks to himself (such as suicide) should be communicated to the appropriate authorities in Scotland.

The learned trial judge had before him ample material upon which to reach the view that he could properly distinguish between the gravity of the medical position of the present respondent/appellant and the rather grave circumstances which existed as to the imminent risk to life of the respondent in the case of Minister for Justice Equality and Law Reform v S.R., (unreported), High Court, 15th November 2005, that risk arising by virtue of the surrender itself, the High Court judge refusing, in those circumstances, to surrender Mr. R. At the time of the judgment in the present case, the decision of this Court in the appeal in the latter case had not been heard or determined.

It is telling to note the decision of this Court in its judgment on that appeal on the issue of the surrender of a person suffering from serious illness. In the latter case, the judgment of Finnegan, J. found that this Court must “balance the risk to the health of the Respondent directly related to his surrender on the one hand and the obligations of the State under the Framework Decision”. The judgment also referred to a decision on a similar issue in Carne v Assistant Garda Commissioner Patrick O’Toole, unreported 21st April 2005, a case determined under the earlier legislation relation to extradition, in which this Court held that the Respondent’s medical condition, which included an earlier stroke, high blood pressure, extensive vascular disease as well as coronary disease, and symptoms which would require nineteen days in hospital and a further period of six months for full recovery, was nevertheless not such as to constitute an exceptional circumstance for the purposes of section 50(2)(bbb) of the Extradition Act 1965.

In the judgment of Finnegan, J. in the S. R case, he stated:

      “The evidence as to the Respondent’s health is not such as would prevent a person in similar circumstances to the Respondent being put on trial in this jurisdiction. In the present case there is no suggestion that the Respondent’s ability to recollect events is affected. Nor is it suggested that he would be incapable of adequately instructing his solicitor and counsel or of actively participating in his trial. The sole issue for the court is whether … the fact that psychological or physical stresses attending his surrender may precipitate acute coronary disease and should if at all possible be avoided outweighs the interest of the requesting authorities in having the alleged offences prosecuted.”
Having considered the medical evidence presented, he continued:
      … having regard to the onus on this issue which rests on the respondent, I am satisfied that in the United Kingdom, and whether on bail or in custody, the Respondent will receive appropriate health care. While Dr. Kearney is of opinion that stress may precipitate acute coronary disease and should be avoided I am satisfied that something much more definite by way of threat to life would be required in this jurisdiction before the courts would involve article 40.3.2. of the Constitution and prohibit a trial. The possibility that stress may precipitate acute coronary disease, I am satisfied, is insufficient. The evidence before the court and in particular the medical report of Dr. Peter Kearney, the Respondent’s treating consultant, does not justify the learned trial judge’s conclusion that the Respondent is at a real risk of dying if placed in any situation of severe stress. The report, as I understand it, is to the effect that a further acute coronary event might well prove catastrophic in further limiting heart muscle pump function. The report read in conjunction with the other medical reports relied upon does not justify the learned trial judge’s conclusion that the Respondent is at a real risk of dying if placed in any situation of severe stress.

      I would allow the appeal on this ground.”

I do not consider it either desirable or appropriate that a detailed comparison should be made between the medical condition of one person being sought to be surrendered, as against that of another person being sought to be surrendered, as it is sought by the respondent/appellant, by implication, to do in the present case. But if it were necessary to do so, I would consider his medical, including psychiatric, condition, to be less serious than that of the appellant in the case of S. R., supra. I do not, however, base my judgment on such a consideration. Rather, I am satisfied that the learned trial judge did not misdirect himself in his assessment of the nature of the respondent/appellant’s own medical, including psychiatric, condition even though his counsel argued that in the present case, the danger to him arises from the very fact of surrender, as was argued also in the case of S. R.. Nothing submitted in the course of this appeal supports the contention that the learned trial judge came to a wrong conclusion on the materials before him. In this Court, on the evidence presented, I am satisfied that there are no medical evidence upon which a different view should be adopted on this appeal. The respondent/appellant is at present under the care of medical authorities in this jurisdiction and equally, until he is surrendered, he will continue to be protected and treated for his medical condition.

I do not take into account either, in reaching my view in relation to the psychiatric condition of the applicant and the High Court judge’s finding, the fact that some or other of the psychiatric reports raised an issue in respect of the possibility of feigned symptoms, but have considered the evidence relating to his condition in a light most favourable to him. It has to be borne in mind, as has been stated by this court in previous cases, including the S. R. case, supra. ,that the United Kingdom and the authorities in all its constituent parts are obliged to protect the respondent/appellant, having regard to his medical, including psychiatric, condition. There was nothing before the High Court, and there is nothing before this Court, which would suggest that he would not be fully assessed and treated for his particular medical, including psychiatric, difficulties, there, upon surrender, or that his mere surrender would have the effects contended for by counsel on his behalf.

The grounds of appeal based on delay, including delay with regard to the medical condition of the respondent/appellant, are in my view unsustainable and I reject them in their entirety.

I now turn to the second ground of appeal which concerns the legitimate expectation claimed by the respondent/appellant, that he would not be the subject of any prosecution arising from the warrant for his arrest issued in 2001. To understand the case made by him in that regard it is necessary to set out the background which gives rise to this ground, before considering the manner in which the learned High Court judge dealt with it. The European Arrest Warrant issued on the 25th July 2006 by the Glasgow Sheriff’s Court and was based on a domestic warrant issued for the arrest of the appellant and dated the 18th April 2001, arsing from his failure to appear at the High Court of Glasgow to answer an indictment in respect of certain charges, he having been granted bail. The European Arrest Warrant itself sets out in some considerable detail not only the charges but all of the facts and matters giving rise to the charges. Basically the charges concern the sale and supply of controlled drugs. On his own evidence, the respondent, having been granted bail, fled to Ireland. It is not known and the respondent/appellant does not say, how frequently, if at all, he visited the United Kingdom and/or Scotland since he came to Ireland, but on one occasion, on the 16th June 2005, he travelled to the United Kingdom by car, passing through Holyhead. In his affidavit sworn on the 27th February 2007 John O’Leary, solicitor to the respondent/appellant, avers as to the inquiries which he made in relation to the interaction between his client and the appropriate authorities in Holyhead on that occasion.

The respondent/appellant averred in his own affidavit sworn on the 3rd day of February 2007 that he had been stopped in Holyhead on that occasion “when travelling from Ireland”. He continues:

      “5. It was noted that I was listed as a person against whom a warrant had issued. The Special Branch officer who stopped me made a call to Scotland to ascertain if I was still wanted. I was informed that I was not and proceeded on my way.

      “6. In the circumstances I was led to believe that the prosecution against me was not to continue. As a result I had a legitimate expectation that he (sic) was no longer wanted. I believe it would be unfair and contrary to justice to proceed against me now.” (emphasis added)

Mr O’Leary received two letters from the authorities in Scotland one dated the 16th February 2007 from the United Kingdom Revenue and Customs Service (the anti-smuggling team) who were of no assistance in the matter, but who drew attention to the fact that the respondent/appellant had been stopped by Special Branch at Holyhead. By letter dated the 20th February 2007 a detective sergeant of the North Wales police wrote confirming that on the 16th June 2005 the respondent/appellant who was “inbound into the UK from Dublin” was stopped and questioned at Holyhead port by officers executing powers under the Terrorism Act 2000. He went on to state as follows:
      “From our records I am able to say that background checks were conducted on Mr Johnston, during which information came to light that a warrant was outstanding, originating in Scotland. Our records do not identify the relevant police force in Scotland. I am able to tell you that contact was made with Inspector James Haddow from the Scottish force who advised the examining officers that Mr Johnston was no longer wanted at that time. As a result Mr Johnston was allowed to continue his journey.”
Attached to that letter was a photocopy of a record maintained by the North Wales police referring to the respondent and recording that the search was carried out with the object of “prevention of terrorism”, and mentions also an offence which is described as “unspecified”. This form is dated the 16th February 2007.

On the basis of the foregoing information and averments the respondent/appellant contends that he was “led to believe” that the prosecution against him was not to continue. As a result he avers that he had a “legitimate expectation, that he was no longer wanted”, and “I believe it would be unfair and contrary to justice to proceed against me now”. That is the basis of the legitimate expectation together with the averments of Mr O’Leary as to the steps he took and the responses received from the North Wales police.

The legal argument upon which the applicant proceeds is based to a significant extent on the decision of this court in the case of Eviston v The Director of Public Prosecutions [2002] 3 IR 260. Counsel on behalf of respondent/appellant contends, for the reasons which will be discussed further below, that the learned High Court judge was wrong in law in distinguishing between the facts and matters giving rise to the legitimate expectation claim in the present case and that which was determined in favour of the plaintiff in the Eviston case, supra. Counsel on behalf of the applicant/respondent contends that the learned High Court judge correctly distinguished the cases, and that in any event the respondent/appellant could have no valid or legitimate expectation that the warrant issued against him constituted a decision made not to prosecute him at any future date.

In the High Court the learned trial judge dealt with the matter in the following terms:

      “The remaining ground is that of the legitimate expectation that he would not be proceeded against. I have already referred to his grounding affidavit and in particular to paragraph 5 in that regard. Mr Kelly on his behalf referred the court to the case of Eviston, which is a well-known case but that in my view can be distinguished from the present case on the basis that in the Eviston case it was in fact the Director of Public Prosecutions who communicated directly with the accused person that a decision had been made not to prosecute. In the present case the information conveyed was by police officers manning the post at Holyhead. In my view that conversation cannot be read or interpreted as a confirmation of anything other than that at that time he was not required to be taken into custody. It cannot in my view be read as precluding the authorities from deciding to proceed at any later date.

      I am satisfied that the requesting judicial authority has made decision to prosecute the respondent: that is a decision that they are entitled to make and it is set forth in the European Arrest Warrant that such a decision has been made. … This court must, in spite of any impression which the respondent took from the conversation on the 16th June 2005 respect the right of the prosecuting authority in Scotland to proceed against the respondent, and that is in accordance with the high level of trust and confidence which must exist between member states who are parties to the Framework Decision.”

It is in my view important to understand precisely what is contended for on the part of the respondent/appellant. It is that by virtue of the exchanges or conversations arising between him and a member of the United Kingdom police charged with investigating possible terrorism, and as a result of a conversation which the latter had with a named police officer in Scotland, the respondent/appellant would not be prosecuted for the offences in respect of which he had been charged. That is what the respondent/appellant clearly avers at paragraph 6 of his affidavit quoted above. He does not claim merely that the warrant for his arrest, his having failed to answer his bail in Scotland, was no longer valid or could no longer be operated upon. Rather his contention is that he was not to be prosecuted on the charges, because the warrant in question was, pursuant to the above conversations referred to, not to be pursued.

The law relating to legitimate expectation has long been the subject of judgments in this jurisdiction, in the United Kingdom and undoubtedly in Scotland and in many other jurisdictions. It is true also that it has been an evolving area of the law and it may well be that the principles applicable to the doctrine of legitimate expectation have not yet been fully expounded. What is however clearly established in the case law in this jurisdiction, in Northern Ireland and elsewhere is the following primary principle. The expectation which a person is entitled to hold is one which must in all the circumstances of the case be reasonable or legitimate for him to hold. It has been stated in Daly v Minister for the Marine , (Unrept’d, Supreme Court, 4th October 2001), as follows:

      “The learned trial judge decided the case essentially on the facts. The applicant did not, he held, have an expectation which was reasonable or legitimate for him to have. The very name of the doctrine demonstrates, in my view, that his approach is correct. If authority were needed for this self-evident proposition it is to be found in express terms in the judgment of this court in Wiley v The Revenue Commissioners (No. 2) [1994] 2 IR 160. Blayney J. in the High Court and both Finlay C.J. and McCarthy J. accepted that the plaintiff, … expected, as a fact, that he would be granted a refund of excess tax … . He had received a refund on previous occasions but the Minister altered the terms of the scheme so as to require medical evidence that the applicant possess the disability described in the scheme. He did not however in the view of the court have an expectation which was legitimate.

      The Minister relied upon the following passage from the judgment of Barr J. in Canon v Minister for the Marine [1991] 1 IR 82, which seems to me to distil the essence of the doctrine, which is fairness:

      … the concept of legitimate expectation, being derived from an equitable doctrine, must be reviewed in the light of equitable principles. The test is whether in all the circumstances it would be unfair or unjust to allow a party to resile from a position created or adopted by him which at that time gave rise to a legitimate expectation in the mind of another that that situation would continue and might be acted upon by him to his advantage.” (emphasis added)

For the purposes of this judgment I do not consider it necessary, strictly speaking, to go beyond the above definition because it seems to me that the respondent/appellant has presented no evidence whatsoever upon which such a conversation taking place in the circumstances in which it did, could constitute a reasonable or legitimate expectation either that the warrant was thereafter wholly inoperable or could have as its consequence that the “prosecution would not be proceeded with” as contended for, save for his reliance on the Eviston decision, which I consider to be of little assistance to him.

What was absolutely certain in the Eviston case was that there had been a decision made by the appropriate decision maker, namely, the Director of Public Prosecutions, that he would not prosecute the applicant, Ms Eviston, in respect of a certain traffic offence. Evidence was given in this regard on his behalf. The Director of Public Prosecution reviewed the file and, in effect, changed his mind coming to the view that Ms Eviston should be prosecuted after all. She had been notified of the first decision by the Director of Public Prosecutions not to prosecute her, and had subsequently been notified, without intervening warning or changes in any factual matter, that the Director had changed his mind. The decision in the Eviston case is based on legitimate expectation in the sense that this doctrine required the Director of Public Prosecution to operate fair procedures. While he was found to be permitted in law to change his mind and come to a different decision to that previously made, the court found that fair procedures dictated that when he first notified Ms Eviston that she would not be prosecuted he ought to have, in law, so as to ensure fair procedures, informed her at the same time of the possibility that his decision could be reversed at any time in the future. Not having done so, he had created a legitimate expectation in Ms Eviston that she would not be prosecuted. Counsel for the respondent/ appellant relies on the Eviston case and says that the law concerning legitimate expectation, even insofar as fair procedures are concerned, apply by analogy to the exchanges which took place at Holyhead with the respondent/appellant in June 2005.

While it is true that the learned High Court judge, erroneously at first sight, appeared to base his decision on the fact that the applicant in the Eviston case was notified directly by the Director of Public Prosecutions of the decision he had made, and the respondent/appellant in the present case was notified of the decision by police officers in Holyhead, I am not convinced that this is a correct reading of the true import of the judgment. The learned High Court judge, it seems to me, took the view that a decision had been made by the appropriate authority, namely the Director of Public Prosecutions, who communicated that information directly to the accused (although in fact it was communicated indirectly). On the other hand the information conveyed in the present case was by police officers manning the post at Holyhead, and the learned trial judge said “that conversation cannot be read or interpreted as confirmation of anything other than that at that time he was not required to be taken into custody. It cannot in my view be read as precluding the authorities from deciding to proceed at any later date”.

I am of the view that a correct reading of the learned High Court judge’s judgment is that in the Eviston case the evidence before the court, and admitted, was the evidence of the decision maker. In the present case the warrant for the arrest of a person is a judicial document authorised and issued in this case also by a judicial authority (the High Court of Glasgow). There was before the learned High Court judge no evidence whatsoever that any decision had been made by the appropriate decision maker, that the prosecution would not or could not proceed. Still less could it be concluded from the evidence adduced to the High Court that the exchanges, in Scottish law or under the law of the United Kingdom (if otherwise applicable), had as their legal consequence that the warrant could not be pursued, if not executed in Holyhead at that time. The legal consequences or the effect of the exchanges is a matter which could not be investigated by this court, since it is a matter within the jurisdiction of the Scottish courts, and moreover the learned High Court judge had no evidence whatsoever, as to Scottish law on the matter.

I conclude that the learned High Court judge correctly came to the view that the conversations and exchanges which took place in Holyhead “cannot be read as precluding the authorities from deciding to proceed at any later date” in respect of the warrant and did not in any way err in concluding that the principles set forth in the Eviston case did not apply to the facts arising in the present case. Nor could it, if this court were determining the matter de novo on the same affidavit evidence, lead to the conclusion that the applicant has a legitimate expectation that “the prosecution again me was not to continue”.

Having regard to the foregoing I find that there was no error in law on the part of the High Court judge, and that the respondent/appellant cannot succeed on any of the grounds of appeal.

I would dismiss the appeal in its entirety.

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