High Court: Surrender of Irish man to US for alleged ‘bail jumping’ offence prohibited

About this case:

• Citation:
  [2025] IEHC 550
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Patrick McGrath

Delivering judgment for the High Court, Mr Justice Patrick McGrath concluded: “The intention of s.18 was to prohibit extradition where a person would, owing to the passage of time, be exempt from criminal liability for his actions in either State. The legislature cannot have intended s.18 to have no effect where it a person would, if prosecuted in Ireland in the same circumstances, in reality be exempt from liability from prosecution or punishment.”

Background

On 14 June 2004, the respondent pleaded guilty to three revenue-type offences before the US District Court. The respondent entered a $20,000 personal recognizance and was then remanded on continuing bail to the 22 September 2004 for sentence.

The respondent’s sentencing date was adjourned to facilitate the possibility of his co-operating with the US government. Difficulties were encountered in contacting the respondent and a bench warrant issued on 10 July 2006.

Thereafter, the respondent did not attend a pre-trial conference at which his attendance was required pursuant to his recognizance, and on 10 February 2011, the respondent was charged with “failure to appear” for the court conference in breach of section 3146 of the US Code Title 18 and a warrant of arrest issued that day. 

On 2 October 2018, a request for the extradition of the respondent was communicated to the Irish Department of Foreign Affairs by the US Embassy in Dublin. 

On 14 September 2022, having received notification from the Irish Department of Justice that extradition is not permitted for revenue offences, the US Embassy requested the extradition of the respondent solely on the “bail-jumping” charge and withdrew its request in relation to the revenue offences.

On 13 March 2023, pursuant to s.26(1)(a) of the Extradition Act 1965, the Minister for Justice certified the extradition request as duly made and received in accordance with Part II of the 1965 Act.

An arrest warrant having been issued by the High Court on 24 April 2023, respondent was subsequently brought before the High Court on 19 April 2024. The respondent was eventually admitted to bail on 29 April 2024.

Subsequently, the applicant sought an order pursuant to s.29(1) of the 1965 Act committing the respondent to prison to await his extradition to the USA.

The respondent filed a Notice of Objection on 13 May 2024 objecting to his surrender on grounds inter alia that his surrender was precluded by s.18 of the 1965 Act as he had become immune by reason of lapse of time from prosecution, that his surrender was prohibited by s.10(3) of the 1965 Act where the conduct alleged in the request did not correspond with an offence under Irish law, where a sentence would be imposed and the respondent detained for the purpose of an offence committed prior to his surrender other than that for which his extradition was sought and where matters extraneous to the extradition offence would be taken into account at sentencing.

The High Court

Having satisfied himself of the formal proofs relevant to the application and having heard the parties, Mr Justice McGrath considered the question of correspondence as between the conduct alleged as “bail jumping” under US law and the offence of “failure to surrender to bail” contrary to s.13(1) of the Criminal Justice Act 1984.

As to the respondent’s contention that correspondence between the offences had not been made out where the evidence before the court did not indicate that he had failed to appear on 22 September 2004 nor that he was notified of the adjourned date, the judge observed that the respondent had conflated the questions of correspondence as between the acts alleged and offence in this jurisdiction on the one hand, and proof of the allegations on the other hand.

Finding that the fact that there may be some lack of clarity as to how the US authorities intend to prove the offence charged “does not affect the question of correspondence”, Mr Justice McGrath was satisfied that if the respondent had been released on bail in this jurisdiction and failed to attend before the court when required, such acts would constitute an offence under s.13 of the 1984 Act.

As to the respondent’s argument that upon surrender he would be sentenced for matters extraneous to the offence for which his extradition was sought, the judge considered that the expert report tendered by the respondent did not evidence such a risk in his case where the report made clear that the US court could take into account a broad range of matters relating to his background and character, an approach generally adopted by the Irish courts.

In circumstances where the respondent’s extradition was no longer sought in respect of the revenue offences, the fact that the US court might take into account his previous criminal conduct, including the revenue offences, if he was convicted of the “bail jumping” offence did not mean that he was being punished for those offences.

Accordingly, Mr Justice McGrath was satisfied that the evidence did not establish any risk that the respondent might, in the course of any future sentencing process, be punished for offences for which he had never been charged or might be punished for unindicted bad conduct, the mischief identified in AG v Burns (Denham J, 6 December 2004).

As to the issue of whether the respondent was immune from prosecution, the court considered the respondent’s submissions that under Irish law, the corresponding Irish summary offence carries a 12-month time limit pursuant to s.10(4) of the 1984 Act and that in circumstances where the US proceedings were initiated “well beyond” 12 months following the date of the “bail jumping” offence alleged, his prosecution would be statute-barred.

In this regard, Mr Justice McGrath noted that the court was concerned with a statutory time limit and that a person in this jurisdiction “could not be prosecuted or punished in Ireland in the circumstances arising in this case, once he or she raised the time limitation provided for in s. 13(6) of the Act if charged or summonsed for a corresponding offence under s. 13 of the 1984 Act”.

Observing that the applicant in its submissions had conflated the issues of jurisdiction and immunity, the judge explained: “Whilst the District Court may have jurisdiction to enter into a consideration of any case which on its face appears to be within its jurisdiction, it has no discretion but to stop a prosecution upon the defendant raising a time limit by way of defence.”

Noting that “immunity” is not defined in the 1965 Act, the court did not agree with the applicant that for immunity to arise under s.18, a prosecution must necessarily be void ab initio, finding: “The essence of immunity is that a person is, for some specific reason, exempt from some liability to which others are subject. Here the Respondent would in reality be exempt from liability in the circumstances outlined owing to the passage of time.”

Finding that the intention of s.18 was to prohibit extradition where a person would, owing to the passage of time, be exempt from criminal liability for his actions in either State, Mr Justice McGrath highlighted that to accept the argument raised by the applicant would render s.18 of no effect, and that the legislature could not have intended s.18 to have no effect where a person would, if prosecuted in Ireland in the same circumstances, in reality be exempt from liability from prosecution or punishment.

Conclusion

Accordingly, the High Court determined that the respondent’s surrender was prohibited. 

Attorney General v John Joseph Drislane [2025] IEHC 550