High Court of Ireland Decisions

Stanton v. O'Toole [1999] IEHC 52 (7th December, 1999)

1998 No. 694 SP

IN THE MATTER OF THE EXTRADITION ACTS, 1965 TO 1994

BETWEEN

AND IN THE MATTER OF ARTICLE 40.4 OF THE CONSTITUTION

BETWEEN

AND

JUDGMENT of Mr. Justice Diarmuid B. O'Donovan delivered on the 7th day of December 1999.

1. These are two claims brought by the Plaintiff/Applicant; firstly, for an Order pursuant to Section 50 of the Extradition Act, 1965, as amended, directing the Applicant's release from custody and, secondly, for an Order pursuant to the provisions of Article 40.4.2 of Bunreacht na hEireann directing that he be released from the custody of the Respondent on the grounds that his detention by the Respondent is not in accordance with law.

2. Plaintiff/Applicant issued on the 13th day of May 1998 from the High Court of Justiciary, Parliament House, Edinburgh, Scotland. The said warrant dated the 13th day of May 1998 recited that the Plaintiff/Applicant had been indicted for the offence of: " On the 24th of September 1993 at Laidlaw House, 95 Cheapside Street, Glasgow, you did assault Frances O'Rourke, c/o Cranston Hill Police Office, Glasgow, seize hold of her, remove her clothing, struggle with her, place your hand over her mouth, throw her to the floor, scratch her in the face, restrain her, repeatedly pull her hair, handle and insert your fingers into her private parts, penetrate her hinder parts with your private member, masturbate in her presence, lie on top of her, force her legs apart and rape her" contrary to common law and was endorsed by the Defendant, Patrick O'Toole, an Assistant Commissioner of the An Garda Siochana, on the 19th day of June 1998 and executed on the 22nd day of June 1998 in the County Cork.

3. The Plaintiff/Applicant was brought before the District Court in the Dublin Metropolitan District on the 2nd day of November 1998 on foot of the said warrant and, by Order made on that date, the learned District Court Judge ordered the delivery of the Plaintiff/Applicant into the custody of a member of the Strathclyde Police, Glasgow for conveyance to the High Court of Justiciary, Parliament House, Edinburgh, Scotland. In the said Order, it is recited:-

"Whereas it appears to the Court that the offence specified in the warrant

corresponds with an offence under the law of the State which is an indictable offence, namely; rape contrary to Section 2 of the Criminal Law (Rape) Act, 1981, as amended."

4. Two questions arise as to the validity of this Order of the Learned District

5. Court Judge. In the first place, there is a challenge made on behalf of the Plaintiff/Applicant on the grounds that the offence as set out in the said warrant dated the 13th day of May 1998

does not correspond with an indictable offence known to the law of this State and that the finding by the Learned District Judge to that effect was wrong and therefore that, her jurisdiction to make the Order under Section 47 of the Extradition Act, 1965 did not exist.

6. Secondly, it was submitted on behalf of the Plaintiff/Applicant that, as there has been a lapse of over six years since his initial arrest and a significant proportion of that period is attributable to delay on the part of the relevant authorities, it would be unjust, oppressive and invidious to deliver him up under the provisions of Section 47 of the Extradition Act, 1965, having regard to the provisions of Section 50 (2)(bbb) of the said Act, of 1965 as inserted by Section 2 (1) (b) of the Extradition (Amendment) Act, 1987.

7. While, in addition to the foregoing, originally it was submitted on behalf of the Plaintiff/Applicant that the certificate which accompanied the said warrant dated the 13th day of May 1998 and which purported to certify that the offence specified therein is by law of Scotland an indictable offence and punishable by imprisonment for a maximum period of at least six months and that it cannot be prosecuted summarily, was not admissible for the purpose of establishing the matters it purports to certify, in that, it did not comply with the requirements of the provisions of Section 54 (2) of the Extradition Act, 1965; not having been given by the Authority or the clerk or other officer of the Authority by which the said warrant was issued and that, accordingly, the Plaintiff/Applicant was not being detained by the Respondent in accordance with law, it was ultimately conceded that, by virtue of the provisions of Section 37 of the Criminal Procedure Act, 1967, the said certificate was in order and, accordingly, that point was not pursued.

8. It was further submitted on behalf of the Plaintiff/Applicant that, in the light of an averment at paragraph 17 of an Affidavit of the said Henry Campbell sworn herein on the 27th day of April 1999 wherein the said Henry Campbell deposed to the fact that" because what was being asked of the Scottish Court was completely in conflict with its usual practice and indeed the fresh extract warrant which was eventually granted was in all respects a fresh document reflecting the needs of the Irish authorities rather than the practice of the Scottish Courts ", the certification of the said warrant dated the 13th day of May 1998 did not accord with the provisions of Section 55 of the Extradition Act, 1965 and was therefore invalid; being another ground upon which the detention of the Plaintiff/Applicant by the Respondent was challenged on the grounds that it does not accord with principles of law.

9. Section 47(1) of the Extradition Act, 1965 provides for the making of an Order by the District Court for the delivery of a person named or described in a warrant at some convenient point of departure from the State into the custody of a member of the Police force of the place in which the warrant has been issued. Section 47(2) of that Act provides that an Order should not be made under Section 47(1) if it appears to the court that the offence specified in the warrant does not correspond with an offence under the law of the State which is an indictable offence, or is punishable on summary conviction by imprisonment for a maximum period of at least six months. In this case, the Plaintiff/Applicant challenges the validity of the said Order of the District Court made on the 2nd day of November 1998 on the grounds that the offence specified in the said warrant dated the 13th day of May 1998 in respect of which his extradition is sought does not correspond with an offence under the law of this State which is an indictable offence, or is punishable on summary conviction by imprisonment for a maximum period of at least six months. In particular, he argued that the offence specified in the said warrant which the learned District Court Judge identified as corresponding with the offence of rape contrary to Section 2 of the Criminal Law (Rape) Act, 1981, as amended, does not correspond with the offence created by Section 2 of the 1981 Act for the reason that want of consent on the part of the alleged victim or recklessness on the part of the alleged perpetrator as to whether or not the alleged victim consented to intercourse is an essential ingredient of that offence whereas no such ingredient is alleged in respect of the offence specified in the said warrant. Moreover, the Plaintiff/Applicant argued that, as the offence specified in the said warrant is certified as being a single offence, rather than a series of offences, an indictment framed in its terms in this country would be bad for duplicity and uncertainty and would offend principles of fair procedures.

10. In the course of a judgment of the Supreme Court delivered in a case of The State (at the prosecution of Michael Furlong) -v- Edmund J. Kelly and the Attorney General (1971 I.R. p. 132), it was held that the Order of a District Court Judge made under Section 47 of the Extradition Act, 1965 should contain a statement of the District Judge's finding that the offence specified in the warrant to which the Order related corresponded with an offence under the law of this State and should set out the offence which, in his or her opinion, is the corresponding offence under the law of this State. However, in the course of hisjudgment in that case at p.142, Walsh J., stated:-

"If it should appear, on application to the High Court for an Order of Habeus Corpus, that the offence under the law of this State found by the District Justice is not in fact a corresponding offence under the law of this State, I do not think that such a position would be fatal to the validity of his Order provided that it could be shown in the High Court or on appeal in this Court, as the case may be, that the offence in the warrant did correspond with some offence under the law of this State."

11. This view was endorsed by a judgment of the Supreme Court delivered in a case of Donal Wyatt -v- Patrick G. McLoughlin (1974 I.R. at p. 378). Accordingly, as I understand the position, it is open to the High Court on review of an Order made by a District Court Judge under the provisions of Section 47 of the Extradition Act, 1965 to confirm that Order even though the High Court is satisfied that the offence specified in the Order is not a corresponding offence; provided that there is a corresponding indictable or otherwise qualified offence which does correspond. In these circumstances, it seems to me that I must first of allenquire as to whether or not the offence of rape contrary to Section 2 of the Criminal Law (Rape) Act, 1981, as amended, which is identified by the learned District Court Judge in the said Order of the 2nd day of November 1998 as being an offence under the law of this State which corresponds with the offence specified in the said warrant of the 13th day of May 1998 does, in law, correspond with the offence specified in that warrant and, if not, whether or not there is another indictable or other qualified offence under the law of the State which does correspond with the offence specified in that warrant. In other words, is it clear that the wording of the offence specified in the warrant identifies it with the offence of rape contrary to Section 2 of the Criminal Law (Rape) Act, 1981, as amended, or, if not, is the offence specified in the warrant so stated as to be recognisable as corresponding with another offence under our law which is an indictable offence, or is an offence punishable on summary conviction by imprisonment for a maximum period of at least six months? In this regard, the case ofWyatt -v- McLoughlin, to which I have already referred is also authority for the proposition that, when considering whether or not there is correspondence between an offence specified in a foreign warrant and an offence under the law of this State, it is not the legal qualification of the offence according to the foreign law concerned or the name it has in that law which is of importance, but it is the facts underlying the offence as ascertainable from the warrant or as may be ascertained from such other documents as may accompany the warrant. In other words, in dealing with warrants endorsed for execution in accordance with part 3 of the Extradition Act, 1965, the Courts must be satisfied that the acts constituting the particular offence for which extradition is sought are acts which, if committed within this jurisdiction, would constitute a criminal offence. Accordingly, it is not sufficient simply to use the name by which a crime is known, or alleged to be known, in the requesting country even though that same name may be used in this country as the name of a crime because the acts complained of, although having identical names, may constitute quite different criminal offences in different countries or, indeed, no offence at all in one of them. AsHenchy J., said in the course of a judgment of the Supreme Court given in a case of William Matthew Wilson -v- John Sheehan (1979) I.R. at p. 423:-

"It is the essential factual ingredients that determine whether two offences have the necessary correspondence. If an offence is specified in the warrant merely by the name by which it is known in the requesting State, it does not follow that because there is an offence in this State which goes by the same name, the two offences correspond with each other. They may be crucially different in essence."

12. Later on in that judgment he said:-

"When it comes to the words in the warrant by which the factual content of the specified offence is identified, the correct rule is that those words should prima facie be given their ordinary or popular meaning unless they are used in a context which suggests that they have a special significance. The reason for that rule is that, when statutes or other public or formal documents directed to the public at large, or to any member of the public at large, are being interpreted, it is to be assumed, in the absence of a counter indication, that the words used in such documents have been used in their popular rather than in any specialised or technical sense."

13. Indeed, it was Mr. Justice Henchy, himself, who rather pithily summarised the position when, in the course of another judgment of the Supreme Court delivered in a case of Maurice Hanlon -v- John Fleming (1981 I.R. at p. 495) he stated:-

"It is a question of looking at the factual components of the offence specified in the warrant, regardless of the name given to it, and seeing if those factual components, in their entirety or in their near entirety, would constitute an offence which, if committed in this State, could be said to be a corresponding offence of the required gravity."

14. Although pointing out that it is certified as a single offence, Counsel for the Plaintiff/Applicant described the offence specified in the said warrant of the 13th day of May 1998 as an extraordinary formulation of charges and he argued that, for all its verbosity, it did not include an essential ingredient for the offence of rape contrary to Section 2 of the Criminal Law (Rape) Act, 1981, as amended, being the offence identified by the learned District Court Judge as the offence in this State with which it corresponded, in that, the want of consent of the alleged victim to the acts complained of, or the recklessness of the accused as to whether or not the alleged victim consented to those acts is not specified in the warrant. Accordingly, Counsel for the Plaintiff/Applicant argued that the offence specified in the warrant does not correspond with the offence of rape contrary to Section 2 of the Criminal Law (Rape) Act, 1981, as amended. In my view, there is substance to this argument. While the word"rape" is used in the offence specified in the said warrant and, given its ordinary and popular meaning, that word could be understood to mean the offence created by Section 2 of the 1981 Act in the circumstance that Section 2(1) of that Act specifically provides that it is an ingredient of the offence of rape that the woman with whom the accused is alleged to have had sexual intercourse does not consent to it and that the accused knows that she does not so consent or is reckless as to whether or not she does and there is no suggestion that the absence of such consent is an ingredient of the offence specified in the said warrant, I am not satisfied that the offence specified in the warrant does correspond with an offence of rape contrary to Section 2 of the Criminal Law (Rape) Act, 1981. However, I have no doubt at all but that the offence specified in the said warrant does correspond with a number of offences under the law of this State which are indictable offences or offences punishable on summary conviction by a maximum period of at least six months and, in particular, I am satisfied that the offence specified in the warrant corresponds with the offence of rape contrary to the provisions of Section 4 of the Criminal Law(Rape) Act of 1990. Moreover, I reject the submission of Counsel for the Plaintiff/Applicant that an indictment framed in the terms of the offence specified in the warrant would be considered bad for duplicity and uncertainty and would not be allowed to go to an Irish jury. In my view, to paraphrase the words ofHenchy J., in the course of his judgment in the case of Hanlon -v- Fleming, hereinbefore referred to;

'The factual elements of the specified offence, if laid in this State substantially as set out in the said warrant as the particulars of an indictment for an offence contrary to Section 4 of the Criminal Law (Rape) Act, 1990, would be a correct basis for a finding of guilty by a correctly charged jury.'

15. Moreover, while I accept that the court is obliged to protect the constitutional rights of the Plaintiff/Applicant and, in the event that the court were to conclude that an Order for extradition herein would expose him to practices or procedures amounting to an infringement of his right to fair and just procedures, it would be incumbent upon the court to decline to make such an Order (C/F Desmond Ellis -v- Edward O'Dea and District Justice Daniel Shields (1989 I.R. At page 530)). However, I am not persuaded that an indictment framed in the terms of the offence specified in the said warrant would expose the Plaintiff/Applicant to practices or procedures which were either unfair or unjust.

16. Insofar as it is suggested that it would be unjust, oppressive and invidious to extradite the Plaintiff/Applicant under the provisions of Section 47 of the Extradition Act, 1965 on the grounds of delay, I think that it is clear from the provisions of Section50(2)(bbb) of the said Act of 1965, as inserted by Section 2(1)(b) of the Extradition (Amendment) Act, 1987 that lapse of time since the commission of the offence specified in a warrant seeking extradition can only be considered as a circumstance which would render it unjust, oppressive or invidious to deliver up the person named in the warrant under Section 47 of the Act if that lapse of time isaccompanied by other exceptional circumstances. In this regard, in the course of a judgment delivered in the Supreme Court in a case of Angelo Fusco -v- EdwardO'Dea (1998 3 I.R. at page 482) Mrs. Justice Denham stated:-

"The Section (Section 50(2)(bbb) of the Act of 1965) requires that in addition to the lapse of time that there be "other exceptional circumstances" such as to enable the exception to apply. It is for the Plaintiff to prove that the exemption applies on the balance of probability. The Section requires that there be "other exceptional circumstances" not "other circumstances". The fact that the exemption is defined so strongly is in keeping with the nature of extradition where once the executive branch of Government has made a policy decision that extradition or rendition agreements exist between two countries andthe legislature has passed the requisite legislation, extradition becomes mandatory subject to the law and the Constitution. Thus it is understandable that exemptions are strongly defined in the legislation. However, they must be strictly construed. The word"exceptional" indicates that the exemption will be rare, will be the exception, unusual".

17. In my view, this is a correct statement of the law. In this regard, while there is no doubt but that there has been considerable delay between the date of the alleged commission of the offence specified in the said warrant and the initiation of the proceedings seeking the extradition of the Plaintiff/Applicant, the failure to have the said charge against him tried more expeditiously is, primarily, his own fault because, if he had not broken bail and fled to Ireland, the said charge would have been tried and disposed of a long time ago. However, it is submitted on his behalf that a significant proportion of that delay is attributable to want of reasonable effort on the part of the authorities to locate him following his failure to answer to his bail on the 15thday of October 1994. Indeed, it is suggested on his behalf that no explanation has been advanced for the delay on the part of the authorities in locating him and it is submitted that the absence of evidence of reasonable effort on the part of the authorities to locate the Plaintiff/Applicant following his failure to answer to his bail in October 1994 and the failure to explain the delay in initiating the extradition proceedings against him amounts to exceptional circumstances within the meaning of Section50(2)(bbb) of the said Act of 1965, as inserted by Section 2(1)(b) of the Extradition (Amendment) Act, 1987. In my view, apart from the fact that I think that it is clear from the affidavit of Henry Campbell sworn herein on the 27th day of April 1999 that, following the Plaintiff/Applicant's failure to answer to his bail in October 1994, efforts were made on behalf of the Strathclyde Police Force to locate him and the delay in locating him is explained by Mr. Campbell, I do not consider that the perceived tardiness on the part of the Strathclyde Police Force in their efforts to locate Mr.Stanton following his failure to answer to his bail in October 1994 or the perceived inadequacy of their explanation for the delay in locating him amounts to exceptional circumstances within the meaning of the said Section. Accordingly, I am not persuaded that the Plaintiff/Applicant is entitled to be released from custody by virtue of the provisions of Section 50 of the Extradition Act, 1965, as amended.

18. Insofar as it is submitted on behalf of the Plaintiff/Applicant that, in the light of the said averment at paragraph 17 of the said affidavit of Henry Campbell sworn herein on the 27th day of April 1999, the certification of the said warrant did not accord with the provisions of Section 55 of the Extradition Act, 1965 and is therefore invalid, it is, I think, of some significance that that point was not taken; either in the Special summons issued herein on the 9th day of November 1998, or in the affidavit to ground the said summons sworn by RobertEagar on the 12th day of February 1999 or in the further affidavit of the said Robert Eagar grounding the Applicant's application under Article 40.4.2 of Bunreacht na hEireann and sworn herein on the 15th day of October 1999. In those circumstances, I am not persuaded that the Plaintiff/Applicant is entitled to pursue that argument in these proceedings. However, even if he were so entitled, it does not appear to me that Mr. Campbell's assertion that the procedure established by the Chief State Solicitor's office for securing the extradition of the Plaintiff/Applicant, being the procedure followed by the Scottish Court in this case, was in conflict with the usual practice of that court, offends the provisions of Section 55 of the Extradition Act, 1965, as is alleged. In this regard, Section 55 of the 1965 Act provides that, in extradition proceedings, unless the court sees good reason to the contrary, various documents which are identified in the Section may, in circumstances detailed in the Section, be admitted as evidence of the matters which they contain without further evidence. In other words, that they may be accepted on their face value unless the court sees good reason for not doing so. In my view, the fact, as appears from paragraph 17 of Mr. Campbell's affidavit, that the documentation prepared by the Scottish Court in this case did not accord with its usual practice is not a good reason for rejecting it on the grounds that it has no evidential value. While it may well be, as Mr. Campbell implies, that the procedures followed by the Scottish Court in this case are somewhat different from those usually followed by it in regard to extradition matters, it does not, in my view, follow that that is a good reason for rejecting the documentation which it produced when, on its face value, that documentation appears to be in order, as I am satisfied that it is. In this regard, there is nothing in Mr. Campbell's affidavit to suggest that the contents of the documentation submitted by the Scottish Court is in any way misleading and, accordingly, I do not think that there is any good reason why the provisions of Section 55 of the 1965 Act would not apply to it.

19. In the light of the foregoing, I would dismiss both of the proceedings herein and allow the extradition ordered by the District Court on the 2nd day of November 1998 to be carried out. Subject to the proviso that the Order for the delivery of the Plaintiff/Applicant into the custody of a member of the Strathclyde Police should recite that the offence specified in the warrant corresponds with an offence under the law of the State which is an indictable offence, namely;

20. Rape contrary to Section 4 of the Criminal Law (Rape) Act, 1990.