High Court of Ireland Decisions

1. The Applicant is the subject matter of proceedings seeking his extradition to England on foot of four warrants issued on the 5, 6 and 8 April, 1993. The offences alleged against the Applicant are as follows:-

1. Conspiracy with others, including Pierce McCauley and William McKane on divers dates between the 12 November, 1990 to murder Sir Charles Henderson Tidbury and other persons contrary to Section 1 of the Criminal Law Act, 1977.

2. Conspiracy with others, including Pierce McCauley and William McKane on drivers dates before the 12 November, 1990 to cause by explosive substances explosions of a nature likely to endanger life or cause serious injury to property in the United Kingdom contrary to Section 3(1)(a) of the Explosive Substances Act, 1883.

3. Escaping from lawful custody on the 7 July, 1991 while being in lawful custody on a criminal charge awaiting trial at Her Majesty's Prison, Brixton, contrary to common law.

4. Unlawfully and maliciously wounding Malcolm Hugh David Kemp with intent to do him grievous bodily harm on the 7 July, 1991 at Brixton Hill, London, contrary to a Section 18 of the Offences Against the Person Act, 1861.

On the 11 December, 1995, the President of the District Court, Judge Smithwick, made Orders for the delivery of the Applicant into the custody of a member of the city of London police force on foot of the said four warrants.

The Applicant appealed the said Orders by claim under Section 50 of the Extradition Act, 1965 as amended and the Applicant was admitted to bail by the High Court on the 18 day of December, 1995.

The proceedings were adjourned from time to time and eventually appeared in the List to Fix Dates on the 9 December, 1996. The Applicant had in the interim been charged in October 1996 with criminal offences alleged against him and proceedings were pending in this regard in the Special Criminal Court. The Applicant also brought an application pursuant to Article 40 of the Constitution in relation to his appearance in answer to the said criminal charges before the Special Criminal Court which was subsequently found to be an improperly constituted Court. The said Article 40 proceedings were completed in November 1997. The criminal case came on for hearing on the 12 November, 1997 and on the 12 December, 1997, a nolle prosequi was entered by the Director of Public Prosecutions in relation to the said criminal charges.

The Applicant alleges that at the time of his arrest on the 2 October, 1990 there was enormous publicity in the business media which purported to link the Applicant with a large number of murders, bombings, etc, for which no prosecution has been taken and no warrants issued to the Applicant. He alleges that due to the extent and the nature of such publicity that he will not be able to obtain a fair trial in Britain.

He alleges police and prison officials encouraged and assisted the Applicant in the alleged escape from Brixton Prison with a view to leading the security authorities to alleged associates in the IRA. Such activity on the part of the said officials further supports, it is alleged, the Applicant's contention that the offences for which extradition is sought are political offences or offences connected with political offences.

He alleges the use of an agent provocateur in the alleged escape makes the offence of escape contrary to common law, an offence which does not correspond to Irish law in that the role of such a person is not acceptable in Irish law. All these matters will arise on the hearing of the Appeal which is coming along shortly. At this late stage the Applicant applies for a number of official reports prepared arising out of the events of the 7 July, 1991.

The law is laid down by Fusco v O'Dea, [1994] 2 IR 93. The Applicant in his written submission agrees that discovery would seem not to be available directly against the police. However, he reserves the right to argue that the Fusco v O'Dea case was decided per incuriam; that the issue of sovereign immunity was never raised before the Supreme Court, that by seeking Fusco's extradition the UK authorities there had waived such immunity as they may have possessed and accordingly sovereign immunity was not a real barrier to discovery in that case.

The relevant order is Order 31 and it is Rule 12 of the Rules of the Superior Courts. It reads:-

(1) Any party may, without filing any Affidavit, apply to the Courts for an Order directing any other party to any cause or matter to make discovery on oath of the documents which are or have been in his possession or power relating to any matter in question therein. On the hearing of such application, the Court may either refuse or adjourn the same if satisfied that such discovery is not necessary, or, not necessary at that stage of the cause or matter, or, make such other Order on such terms as to security for the costs of discovery or otherwise and either generally or limited to certain classes of documents as may be thought fit.

(2) On any such application, the Court in lieu of ordering an Affidavit of documents to be filed, may order that the party from whom discovery is sought shall deliver to the opposite party a list of the documents which are or have been in his possession, custody or power relating to the matters in question. Such lists shall, as nearly as may be, follow the form of the Affidavit prescribed in Rule 13. The ordering of the delivery of such lists shall not preclude the Court from afterwards ordering the making and filing of an Affidavit of documents.

Interestingly enough, the Order makes no use of the word "procurement". A document is within the power of the party if he has an enforceable legal right to obtain (from whoever actually holds the document) inspection of it without the need to obtain the consent of anyone else as per O'Flaherty J in Bula Limited v Tara Mines, [1994] 1 ILRM 111. TheRespondents are senior police officers. They have never had any of the documents mentioned on the Applicant's list in their possession or power and have so sworn.

This Court refuses the application of the Applicant on the grounds that the Respondent are not and have not been in possession, power or custody of the documents relating to the matter in question herein.

In the circumstances, I dismiss this application.