1. The
Applicant pleaded not guilty to this offence. He was convicted and sentenced
to a term of 7 years imprisonment.
2. In
September, 1991 he was serving that sentence at HM Prison Dartmoor. On the
26th of that month he was temporarily transferred from that prison to the Royal
Naval Hospital at Plymouth but remained in the lawful custody of the Governor
of HM Prison Dartmoor.
3. Within
two days of his transfer to the hospital the Applicant had made contact with
two of his friends. He contacted them by phone from the hospital where he was
receiving treatment. With their help he escaped from the hospital on the 28th
September, 1991.
4. On
the following day he fled to Ireland. He was accompanied by his family on this
journey which was made by ferry. His family had been residing in England for
about two years prior to the Applicant's conviction.
5. Having
arrived in Ireland the Applicant lived in hostel accommodation for six weeks.
He and his family then obtained permanent accommodation at 23 Kilcarrig Green,
Tallaght. There they remained for one year. Then they moved to 515 Collins
Avenue, Dublin were they resided for a further two years. They then moved to
Ballyduff, Tralee, County Kerry. During all of this time they have been in
receipt of Social Welfare and Health Board assistance.
6. Meanwhile,
the Applicant was on the 1st October, 1993 arrested and charged with a burglary
at Collins Avenue in Dublin. He was given bail in respect of that charge. The
case was listed for hearing on the 26th July, 1994. The Applicant attended
Court on that day but absconded before his case was called on for hearing. He
remained unlawfully at large until he was arrested on either the 23rd October
or 23rd November, 1994. There is some dispute as to the correct date but
little turns on it. On whichever of those dates is correct, the Applicant was
arrested and charged with another robbery in this country. The Affidavit
evidence is to the effect that he was also charged with possession of firearms,
possession of an offensive weapon and false imprisonment. He gave evidence
before me and denied that he was charged with these latter offences.
7. In
any event he pleaded guilty to the robbery charge and was sentenced to five
years imprisonment by Spain J. in the Dublin Circuit Criminal Court. That
sentence was imposed in May, 1995 and was reviewed by the trial Judge in May,
1996. On that occasion the balance of four years imprisonment was suspended on
condition that the Applicant keep the peace and be of good behaviour for five
years.
8. The
Applicant appears not to have honoured those conditions because he has admitted
in evidence that he has now been returned for trial on a charge of conspiracy
to rob a Post Office in County Kerry on the 26th June, 1996 and that he intends
pleading guilty to that offence. His trial has been fixed for the 11th
November, 1997.
9. So
much for the history of the Applicant since his arrival in Ireland following
his escape from custody in England.
10. Following
his absconding from the United Kingdom I am satisfied that the authorities in
that jurisdiction followed the normal procedures which would apply when an
escape from lawful custody occurs. The Applicant was listed as a wanted person
on the police national computer and information concerning him was circulated
amongst the United Kingdom police forces.
11. In
May, 1993 Humberside police were co-ordinating an investigation into offences
and in the course of that discovered that the Applicant was living at 515
Collins Avenue, Dublin. In July or early August, 1993 the Devon and Cornwall
police submitted a report to the Crown Prosecution Service in Exeter. Further
information and advices were sought in England including Counsel's advice which
was given on the 16th December, 1993. On the 4th January, 1994 a draft set of
extradition documents was received by the Garda authorities for checking so as
to ensure that they complied with the legal requirements of this State.
12. By
February, 1994 the Gardai had received a warrant from the United Kingdom. It
was approved for endorsement by the Attorney General on the 7th February, 1994
and by the Minister for Justice on the 17th February, 1994. On the 15th April,
1994 it was endorsed for execution by the Defendant.
13. At
that time the Applicant was on bail in this jurisdiction in respect of the
Collins Avenue burglary. He dishonoured his bail in July, 1994 and remained
unlawfully at large until his arrest in either October or November, 1994. At
that stage he was remanded in custody until dealt with by Spain J. in May,
1995. He was released by order of that Judge in May, 1996 and was then
arrested on foot of the warrant in suit. An order for his delivery on foot of
the United Kingdom request was made by the Dublin Metropolitan District Court
on the 16th October, 1996.
14. The
Applicant now seeks his release pursuant to the provisions of Section
50(2)(bbb) of the 1965 Act as amended. The claim for release pursuant to
Section 50(2)(c) has not been pursued.
16. This
contemplates two circumstances where extradition may be sought. The first is
extradition whilst the extraditee is awaiting trial in the requesting
jurisdiction and the second is subsequent to the extraditee's conviction there.
It is the latter circumstance which is relevant for my consideration here.
17. In
order to secure the Applicant's release under the relevant subsection he would
have to show that
18. The
Applicant's conviction was in October of 1990. He was in lawful custody until
his escape at the end of September, 1991. The English police did not become
aware of his residence in Ireland until May, 1993. By February of the
following year the warrant had been received by the Gardai. At that time and
indeed since the previous October the Applicant was awaiting trial here. He
then absconded and was not re-arrested until either October or November, 1994.
Once arrested at that time he was remanded in custody. Within a period of not
more than six weeks following his release by Spain J. he was arrested on foot
of the warrant in suit.
19. Whilst
seven years have elapsed since his conviction and six years since his escape I
am satisfied that the bulk of that delay is attributable to the Applicant's own
conduct. His original escape, his subsequent dishonouring of bail in this
country and his imprisonment here were all brought about by himself. Whilst
the subsection speaks of the "lapse of time" without qualification, it would,
in my view be extraordinary if an Applicant could rely on his own criminal
wrong-doing so as to avail himself of this provision. I am satisfied on the
evidence that the authorities in both jurisdictions acted with reasonable
expedition in the way in which they dealt with this matter. Moreover, I am
also satisfied that the authorities were quite entitled not to seek the
Applicant's extradition pending the determination of the criminal proceedings
here. I do not accept the claim that the Applicant's whereabouts here were
known to the Gardai at all times.
20. Reliance
has been placed on the decision of Geoghegan J. in the case of
Fusco
-v- O'Dea
in support of this contention concerning lapse of time and also for the second
leg of the case which I will consider in a moment. In my view this case on its
facts is far removed from Fusco's, not least by reason that here there is no
suggestion that any delay was caused by a decision of the United Kingdom
authorities not to seek extradition. I am satisfied that the Applicant's case
on lapse of time here is not made out.
21.
I
turn now to consider the second part of the claim. It is said that there are
present other exceptional circumstances which would, having regard to all the
circumstances make it unjust, oppressive or invidious to order delivery up.
Three matters are relied on to support this case.
22. First,
it is said that the extradition of the Plaintiff to the United Kingdom to
complete his sentence would lead to a severance by him of his links with his
family. That is of course so with any person who is imprisoned and there is
nothing exceptional about that. But here the Applicant says that his family
could not afford to visit him whilst in jail in the United Kingdom. In
considering this submission I must not lose sight of the ease of mobility that
the Applicant's family has enjoyed in the past. His family lived in England
for two years, then moved to Ireland on the day following his escape from
custody there and furthermore have made a number of moves in Ireland. I don't
consider this case to be exceptional nor do I discern anything unjust,
oppressive or invidious arising under this head of claim.
23. The
second claim under this heading arises from the Applicant's medical condition.
He has diabetes. The report from Dr Richard Firth shows that he has been both
un-cooperative with his medical advisors and indifferent to put it at its
lowest concerning his medical condition. Reliance is placed on the fact that
ultimate renal failure awaits him but he is no different in that regard to any
other diabetic. No suggestion is made that he would not obtain appropriate
treatment for his condition whilst in prison. Again I find nothing exceptional
which would render his delivery up unjust, oppressive or invidious.
24. The
last ground relied upon is an assertion that the Applicant will be subject to
assaults and ill-treatment whilst in prison. He says that such assaults have
been perpetrated on him in the past and that on one occasion he required
hospitalisation. This averment is made in an Affidavit. No dates,
circumstances or indeed any detail at all has been given on this topic.
Furthermore, the Affidavit says that medical reports supporting this contention
would be produced. None were. I cannot accept that the Applicant has made out
a case under this heading either.
25. Reliance
was placed on the decision of Smyth J. in
Wan
-v- Conroy
(unreported 17th December, 1996). This case comes nowhere near the facts of
that case and is clearly distinguishable. Geoghegan J. in Fusco's case
referred to the over-lapping between the statutory expression of "unjust"
"oppressive" and "invidious". Smyth J. in Wan's case drew attention to the
Court being required to consider all the circumstances when dealing with an
application under this subsection. Looking at the facts in this broad way,
which is the most advantageous from the Applicant's point of view, I cannot
conclude that it would be either unjust or oppressive or invidious or that
there are any exceptional circumstances present which would warrant a finding
in his favour.