High Court of Ireland Decisions

1. In these proceedings the Plaintiff seeks an Order directing his release pursuant to Section 50 of the Extradition Act, 1965.

2. Section 50 of the Extradition Act, 1965 (as amended) provides:-

3. The remainder of the section is irrelevant to the instant case.

4. The factual background in regard to the Plaintiff's claim is somewhat complex and it is important to establish the dates of the relevant events. In the main the evidence before this Court was on Affidavit and the facts were not in issue but in addition Counsel for the Plaintiff cross-examined Governor Gordon Francis Minter of Her Majesty's Prison, Leyhill, Gloucestershire, England and Mr Keith Morris a civil servant employed in the immigration and nationality directorate of the Home Office of the United Kingdom. The facts as found by me are as follows.

5. On the 26th October, 1982 the Plaintiff was convicted of murder in England, the actual offence having taken place in April, 1982. He was sentenced to imprisonment for life. It appears that in or about May, 1987 a tariff of 10 years minimum period of imprisonment was fixed for him under the system of tariffs and reviews of life sentences which obtains in the English prison system. On the 3rd September, 1995 the Plaintiff escaped from Her Majesty's Prison, Leyhill, Gloucestershire, England. It appears that shortly thereafter he came to Ireland to his mother's house in Tubbercurry, Co. Sligo and this matter became known to local Gardai. Information as to the whereabouts of the Plaintiff was passed to the English police and on the 27th October, 1995 a warrant was issued by John Bullock, a Justice for the County of Avon, England for the arrest of the Plaintiff. On foot of this warrant the English authorities sought the extradition of the Plaintiff from this jurisdiction.

6. The Plaintiff was arrested on the 23rd November, 1995 by Sergeant O'Sullivan of the Garda Siochana on foot of the English warrant and was brought before the District Court on 4th January, 1996. At this point the judge of the District Court did not make an order providing for the extradition of the Plaintiff. A case was stated to this Court in regard to the matter. The Case Stated was signed by the judge of the District Court on the 19th November, 1996. It was determined by this Court on the 8th May, 1997 and the matter was returned to the District Court. On the 8th July, 1997 an order for the extradition of the Plaintiff was made by the District Court. The Plaintiff issued the present judicial review proceedings on the 18th July, 1997.

7. In the meantime in this jurisdictionon the 18th January, 1996 at Riverstown District Court the Plaintiff was convicted on charges of criminal damage and unlawful taking of motor vehicles and was sentenced to 23 months imprisonment. While serving this sentence he was released on temporary release at the beginning of August, 1996. During this temporary release he appears to have become involved in an incident at a local licensed premises where he committed further criminal damage and was attacked by the owner of the premises and customers, receiving head injuries. He was subsequently re-arrested and brought back to prison to serve the remainder of his sentence. He was released from prison on 18th September, 1996.

8. In the early hours of the morning of 22nd September, 1996, as set out in the Affidavit of Garda Eamon McGinley of Tubbercurry Garda Station, the Plaintiff broke into the home of a local woman and severely assaulted her both sexually and physically. He was arrested the same day and charged. On 14th January, 1997 at Sligo Circuit Court, he was convicted and sentenced to four years imprisonment for sexual assault, demanding monies with menaces and threat of criminal damage. He is currently serving this sentence in Arbour Hill Prison.

9. When the Plaintiff's proceedings first came on for hearing before this Court he relied primarily on the matters set out in his grounding Affidavit sworn the 10th day of December, 1997. In this Affidavit he sets out the details of his conviction and imprisonment in England. He makes various complaints against the structure and practice of the life sentence review system in England and alleges that if he is returned to England he will have to serve his sentence "grossly disproportionate to the original sentence imposed or any wrong committed" by him. He also avers that after serving nine and a half years in prison he was served with a deportation order.

10. Senior Counsel for the Plaintiff, Dr Forde, relied on the terms of Section 50(2)(bbb) of the Extradition Act, 1965 (as amended). He submitted that there had been an excessive lapse of time between the commission of the offence specified in the warrant or the conviction of the Plaintiff of that offence and the issue of the warrant on which the request for his extradition was based, and that the likelihood of his prolonged imprisonment in England, together with the other factors outlined in his Affidavit, amounted to exceptional circumstances which should lead the Court to direct his release.

11. Dr Forde also submitted that there was an inherent contradiction in the course adopted by the English authorities in that on the one hand they had served the Plaintiff with a deportation order while on the other hand they sought his extradition from this jurisdiction to England. Under Section 24(1) of the English Immigration Act, 1971 the Plaintiff would in fact be committing a criminal offence if he returned to England.

12. Counsel for the Defendant, Mr Murray, accepted Dr Forde's further submission that, as was decided by the Supreme Court in Aamand -v- Smithwick [1995] 1 ILRM 61, the Extradition Act, 1965 is a penal statutory code involving penal sanctions on an individual and must therefore be strictly construed. However, Mr Murray submitted that the Court should not interpret Section 50(2)(bbb) as referring to the lapse of time between the Plaintiff's original offence and conviction in 1982 and the issue of the warrant on the 27th October, 1995 or the making of the District Court extradition order on the 8th July, 1997. He argued that the lapse of time referred to in the subsection was in essence the lapse of time between the time when the grounds for extradition arose and the commencement of the extradition procedure. Mr Murray also submitted that the English authorities had not attempted to put the deportation order into effect. There was no proper evidence before the Court as to the date and other details of the deportation order or as to whether it was still in force.

13. As far as the lapse of time was concerned, I accepted Mr Murray's submissions and held that the relevant period of time was between the Plaintiff's escape from lawful custody on the 3rd September, 1995 and the issue of the English warrant on the 27th October, 1995. Even if one took the Plaintiff's case at its height the relevant time could not extend beyond his appearance before the District Court on the 4th January, 1996. Clearly the delay that has occurred during the Case Stated procedure or the Plaintiff's own Judicial Review proceedings could not be included. It therefore seems to me that there was no excessive lapse of time between the Plaintiff's escape from prison (which was the event that gave rise to the need for extradition) and the issue of the warrant and his appearance before the District Court. Since Section 50(2)(bbb) refers to "the lapse of time... and other exceptional circumstances" (my emphasis) the question of exceptional circumstances does not fall to be considered.

14. On the basis of the additional evidence which is now being provided to this Court I see no reason to change the decision with regard to the lapse of time which I made on the day that the matter was first before me.

15. However, I considered that the matter of the alleged deportation order gave rise at least to some questions as to the procedure being followed. Since there was very little in the way of evidence before the Court on this aspect of the case I adjourned the proceedings in order that further evidence could be brought before the Court. In the event this took some considerable time due to the unavailability and later illness of one of the main English witnesses. No blame can be attached to either party for these delays; nor did the delay in any way prejudice the Plaintiff since he was still serving his sentence in Arbour Hill Prison.

16. The matter came on again for hearing before me on the 3rd March, 1999. At this stage it was established in evidence that on 19th April, 1991 the Plaintiff was informed by prison staff at Her Majesty's Prison, Channings Wood that the Secretary of State was considering his immigration status and liability to deportation in the light of his conviction. He was invited to notify the immigration and nationality Directorate of the Home Office in the United Kingdom if he felt there were any valid reasons why he should not be deported to the Republic of Ireland on completion of his sentence. It appears that no such representations were made by him.

17. On 28th June, 1991 the Plaintiff was served with notice of the Secretary of State's decision to make a deportation order under Section 3(5)(b) of the British Immigration Act, 1971 on the basis that the Plaintiff's deportation would be conducive to the public good. The notice with which he was served informed him of his right to appeal but it appears that he indicated that he did not wish to appeal.

18. On 2nd September, 1991 a deportation order was made against the Plaintiff under Section 5(1) of the Immigration Act, 1971. This order was served on him on 16th September, 1991. A copy of the order is exhibited with the Affidavit of Roger Blackstone and with the affirmation of Keith Morris, both officials of the Immigration section of the Home Office.

19. After the extradition process was put in train in this jurisdiction the matter of the deportation order was reconsidered by the Secretary of State and in order to avoid any possible doubt about the legal position it was considered appropriate to revoke the order. The deportation order was accordingly revoked on the 26th June, 1998.

20. In a supplemental Affidavit sworn on the 7th October, 1998 the Plaintiff asserts that he was in fact served with two deportation orders and that, while one of these has been revoked, the other is still extant, and that therefore the legal position is unchanged. The evidence given by the British immigration officials is that a search has been carried out and that no record has been found of a second deportation order. Mr Murray submitted that, on account of the procedure described above whereby a number of documents in connection with the one deportation order were served at intervals on the Plaintiff, the Plaintiff was under the mistaken impression that more than one order was involved. It seems to me that this is the most likely explanation, given that the dates provided by the British authorities for the service of the one deportation order accord with the Plaintiff's averment in his original Affidavit that this occurred nine and a half years into his sentence.

21. The present situation, therefore, is that there is no legal bar (if indeed there ever was) to prevent the Plaintiff entering the jurisdiction of England and Wales. Both on affidavit and in oral evidence Mr Morris of the Home Office states that it is the Secretary of State's intention, if this Court orders the extradition of the Plaintiff to the United Kingdom in these proceedings, to take appropriate steps to be absolutely certain that no difficulties are encountered at the port on the Plaintiff's return to the United Kingdom.

22. At the hearing before me on the 3rd March, 1999, however, Senior Counsel for the Plaintiff, Dr Forde, made a new submission in regard to the matter of the deportation order. Dr Forde submitted that there was no evidence to suggest that the justice who issued the warrant in the County of Avon on the 27th October, 1995 was informed of the existence of the deportation order which had been made on the 2nd September, 1991. Dr Forde argued that if the justice had been informed of the existence of the deportation order it was most unlikely that he would have signed the warrant. The obtaining of a warrant was an ex parte application and therefore all information which the police authorities had in their possession ought to have been disclosed to the justice. If there was a failure to disclose the deportation order the warrant would be invalid.

23. While, as I understand it, no notice that the Plaintiff would rely on this line of argument had been given to him, Mr Murray replied by submitting that firstly there was no evidence one way or the other as to whether the justice was informed of the existence of the deportation order; secondly that an ex parte application for the issue of a warrant in a criminal matter was in no way comparable to, say, an ex parte application for an injunction and that there was no "uberrinae fidei" duty to disclose all information which was available to the police officer applying for the warrant. As a matter of practice this was certainly not the position in this jurisdiction. Mr Murray also submitted that the matter was covered by Section 55 of the Extradition Act, 1965 and the judgment of Costello J. (as he then was) in McMahon -v- McClafferty [1989] IR 68.

24. I accept the submissions of Mr Murray as regards this line of argument. Firstly, it seems to me that it would be quite wrong to hold that a warrant which was apparently quite properly issued in a foreign jurisdiction was invalid on the basis of a mere supposition as to the evidence before the justice and his probable reaction to it.

25. Secondly, while it is settled law in this jurisdiction that a justice or a peace commissioner who is issuing a warrant must have sufficient detail in the sworn information before him to enable him to make his own decision as to whether he will issue the warrant (see, for example, DPP -v- Kenny [1990] ILRM 569) it has never been to my knowledge held that the Garda swearing the information must disclose all possible information in his possession in order for the warrant to be valid.

26. Thirdly, and most importantly Section 55 of the Extradition Act, 1965 provides as follows:-

27. This section was considered by the learned Costello J. (as he then was) in McMahon -v- McClafferty [1989] IR 68. In that case, which was an appeal by way of Case Stated, the Respondent was arrested by the Gardai at Dundalk on foot of two warrants relating to charges of possession of explosive substances issued by a judicial authority in Northern Ireland and backed for execution in the State by the Appellant and was brought before Dundalk District Court to be extradited to Northern Ireland. There one of the Appellant's witnesses, who was an expert on criminal law and procedure in Northern Ireland, stated cross-examination on behalf of the Respondent that the fiat of the Attorney General for Northern Ireland was required for the commencement of the prosecutions for which the two warrants had been issued. The District Justice held that, in the absence of evidence of such fiat of the Attorney General for Northern Ireland, there was "good reason to the contrary" which would justify him in refusing to act on the presumption that the warrants before him had been duly issued in accordance with the law of Northern Ireland and ordered the Respondent's release. On the appeal by way of Case Stated Costello J. held that evidence merely disclosing the existence of certain preliminary legal requirements in Northern Ireland prior to the issue of the warrants was not of itself "good reason to the contrary" so as to rebut the presumption of Section 55 of the Extradition Act, 1965 that such warrants by Affidavit verified were duly signed and issued in accordance with the law of Northern Ireland unless further admissible evidence suggested actual non compliance with those preliminary legal requirements. It appears to me that in the instant case Counsel for the Plaintiff is making a mere assertion that the deportation order may not have been mentioned to the justice. There is no evidence that, even if that were true, the omission would render the warrant invalid in English law, still less that such a doubtful assertion amounted to "good reason to the contrary" under Section 55 of the 1965 Act.

28. I therefore refuse the relief sought by the Plaintiff.