High Court of Ireland Decisions

 
THE HIGH COURT

IEHC 77/04

Record Number: 2003 No. 12 EXT

Between:

The Attorney General

Applicant

And D M K

Respondent

Judgment of Mr Justice Michael Peart delivered the 11^th day of December 2003:

The Applicant seeks an order pursuant to the provisions of Section 47 of the Extradition Act, 1965, as amended, for the rendition of the respondent to the Metropolitan Police in London on foot of 3 warrants each dated 23^rd May 2002, and each hereinafter referred to respectively as Warrant 'A', Warrant 'B', and Warrant 'C'.

Warrant'A' is in respect of a charge of rape 'per vaginam' contrary to Section 1(1) of the Sexual Offences Act, 1956;

Warrant 'B' is in respect of a charge of rape 'per anum', contrary to the same section;

Warrant 'C' is in respect of robbery contrary to Section 8(1) of the Theft Act, 1968.

All offences are stated in the warrants to have taken place at St. Elmo Road, London W12, England.

In relation to each of these warrants there is the required affidavit accompanying same in which the deponent, Paul Henton, deposes to witnessing the signing of each Warrant by Davinder Kaur Lachhar, a District Judge (Magistrates Courts), and in respect of each offence charged there is the required Certificate which certifies that the minimum gravity requirement is satisfied in respect of each, namely that the offence is an indictable offence by the laws of England and Wales (not being an offence triable on indictment only at the instance or with the consent of the accused) and not also a summary offence.

In relation to correspondence of the offences charged in these warrants with an offence under Irish law, Counsel for the applicant, Mr Barron has submitted that in relation to the rape charges in Warrants 'A' and 'B', the offences correspond to offences here under section 4 of the Criminal Law (Rape) Act, 1981, and that the offence of robbery in Warrant 'C' corresponds to what is now section 14 of the Criminal Justice (Theft and Fraud) Act, 2001, and, at the time the offences is alleged to have been committed, corresponded with section 23 of the Larceny Act, 1916.

Mr Barron also referred to the affidavit of Sgt. Michael Heffernan sworn on the 3^rd July 2003, in which he deposes to having arrested the respondent outside Midlands Prison, Portlaoise, Co. Laois on the 5^th May 2003. He states that on the occasion in question the respondent was coming out of that prison having completed a sentence. He says that he identified himself to the respondent and that the respondent confirmed that he was D M K also known as D K, that he appraised the respondent of the nature of the charges alleged in the warrants to which I have referred, and then duly arrested the respondent on foot thereof. Certain other formalities are described in the affidavit, which I do not have to specifically detail, except that following that arrest the respondent was brought before the High Court on the 6^th May 2003. He was thereafter remanded from time to time until this matter was listed before me for hearing.

At the hearing before me Sgt. Heffernan was called to give some oral testimony in relation to this matter which is not contained in his affidavit to which I have already referred. In his evidence he stated that he had first received the warrants in this case from the Metropolitan Police on the 25^th July 2002. The warrants themselves are dated 23^rd. May 2002. He stated that in accordance with normal procedures he then sent them to the Attorney General's Office in order to establish whether the Attorney General wished to exercise his statutory functions in relation to same and to establish correspondence in respect of the offences charged. Having heard back from the Attorney General's office, the Minister for Justice Equality and Law Reform was then invited to intervene if he so wished. Both the Attorney General and the Minister chose not to do so in this case, the latter so indicating on the 20^th August 2002.

At this point, according to Sgt. Heffernan, the warrants were ready to be endorsed, but he stated that in this case, he was aware that at this time the respondent was serving a prison sentence in Midlands Prison, and that, in his own words, "in accordance with the established policy of the Attorney General in cases such as this, he was not arrested until termination of his prison sentence".

He stated also that the warrants were held by him, and that on the 30^th April 2003 they were for the first time presented to Assistant Commissioner Egan for endorsement. They were duly endorsed on that date.

Under cross-examination, Sgt Heffernan was asked by Counsel for the respondent, Mr McCullough, under what statutory authority he held these warrants from April 2002 until April 2003 before presenting them for endorsement by the Assistant Commissioner. He responded that it was the policy of the Attorney general in matters such as this, and doubted if the practice had any statutory basis.

The Court enquired of Sgt. Heffernan whether any communication was made with the respondent to inform him that the warrants existed. He responded as follows:

"With the prison, my Lord, yes. We communicated with the Irish Prison service on the 21^st August 2002, my lord. In my experience, sometimes the prison will see fit to inform the prisoner and then sometimes they will not see fit. We would regard this as entirely a matter within the responsibility of the administration of the prison. We would have no view on it one way or another, my lord. We do not mind whether the prisoner is actually informed or not. It is entirely within the remit of the Prison Service."

The Court then enquired:

"What sort of communication was made on 21^st August? What was the purpose of that?

Sgt Heffernan replied:

"My lord, if I could quote the letter we sent, it is addressed to the Irish Prison Service, their headquarters, and it is re M D K, born on 15^th November 1968:-

'The extradition of the above named has been sought by the UK authorities. As he is presently serving a sentence in the Midlands prison with a release date of 25^th May 2003, the Extradition Section of Garda Headquarters intends to arrest him on the termination of his service. In order to facilitate this, it is requested that this office be notified fourteen days prior to K's release. Your assistance in this matter is appreciated.'

It is signed by Superintendent Ciaran G. Kenny."

The Court enquired whether he was aware as to whether that letter was brought to the attention of Mr K, and he confirmed that he was not so aware.

Before dealing with the legal submissions made by Counsel, I need to refer to an affidavit of Sinead Maguire, solicitor in the firm representing the respondent, and which is sworn on the 18^th November 2003.

This affidavit states, inter alia, that in October 1997 the respondent was arrested at Shepherd's Bush in London and was charged with common assault of a Police Officer, and that he was subsequently convicted of that offence and sentenced to six weeks' imprisonment, and also that on the 20^th November 1997 the respondent was returned to this jurisdiction on foot of an extradition warrant and charged with a number of offences to which he pleaded guilty and for which he received a seven year term of imprisonment on the 18^th June 1998. It is that term of imprisonment which was completed on the date upon which the respondent was arrested outside the Midlands Prison as described by me already.

This affidavit also refers to the fact that the respondent was interviewed by the British police and An Garda Siochana at Wheatfield prison on the 4th day of February 1999 in relation to an investigation into sexual offences that had occurred in England. In addition to being so interviewed, the respondent provided blood samples to the British police.

The deponent also states that she wrote to An Garda Siochana by letters dated 15th May 2003 and 20th May 2003 enquiring as to when the warrants were received in respect of the respondent. She states that by letter dated 22nd day of May 2003 the Chief State Solicitor informed her that the warrants in relation to the respondent were received by the Garda Extradition Section on the 25th day of July 2002. She further states that the Garda Siochana were all material times aware of the whereabouts of the respondent and that this is apparent from the fact that they were able to find time to visit him in February 1999 when he was detained at Wheatfield prison. She states that upon receiving the extradition warrants in July 2002 and since they were aware of the applicant of the respondent's whereabouts, the Garda Siochana were obliged to execute warrants with due expedition. She says that such expedition was not exercised and that the Garda Siochana took a deliberate decision not to execute the warrants until the applicant was released from a sentence of imprisonment in May 2003. She further states that she is instructed that as and from the 4th day of February 1999 until his release in May 2003 the respondent heard nothing further as to the investigation which led the British police officers to visit him at Wheatfield prison in February 1999. She further states that during the course of his sentence, the respondent was transferred from Wheatfield Prison to Midlands prison and prepared for his release in May 2003, and that such preparations took the form of participating in an alternative to violence course and sitting his junior certificate examinations. She further states that the respondent arranged for post release accommodation at his mother's home and nominated her address for the purposes of registering his name on the sex offenders' register. She goes on to say that he put in place arrangements to obtain employment upon his release by establishing a car valeting service. She further states that she is instructed that if the respondent had been aware that the extradition warrants were outstanding against him and were in the possession of the Garda Siochana since July 2002, that he would have been in a position to properly consider the issue of his extradition, and to receive advice as to the offences upon which his extradition is now sought, and to prepare his defence without additional prejudice accruing to him by reason of a further delay.

She states that the deliberate and conscious breach of the respondent's constitutional rights by way of a deliberate and conscious delay in execution of the extradition warrants upon him has had the effect of minimising the respondent's opportunity to properly defend himself from the allegations contained in the warrants and has maximised any disadvantage accruing to him by virtue of the passage of time between the date of the commission of the alleged offences and the date upon which he may eventually face the charges in question.

She goes on to state that the delay in endorsing and executing the extradition warrants is unconscionable and intolerable and having regard to all the circumstances: -

(a) fails to vindicate the respondent's constitutional right to fair procedures;

(b) amounts to a breach of the respondent's right to a trial in accordance with law and to the expeditious initiation and disposal of the extradition proceedings;

(c) has prejudiced the respondent in his defence in respect of said charges and gives rise to a probability that the respondent cannot now receive a fair trial.

She concludes her affidavit by stating that by delaying the execution of the extradition warrants in respect of the respondent until his release from a sentence of imprisonment in circumstances where An Garda Siochana had been in possession of the said warrants for the previous 10 months, the respondent's constitutional right to fair procedures was not observed and the consequent arrest of the respondent is rendered unlawful.

In his submissions, Counsel for the respondent has highlighted the fact that the warrants in this case were received in this jurisdiction on 25th July 2002, whereas they were not endorsed until that 30th April 2003, and were not executed thereafter until 5th May 2003, in circumstances where the authorities were at all times aware of the whereabouts of the respondent. He submits in the light of these facts that there is no discretion vested in the Garda Authorities as to when they can endorse and execute warrants for extradition. The court has been referred to section 43 (1) (b) of the 1965 Act, which states as follows:-

"on production of the warrant to the Commissioner of An Garda Siochana, it appears to the commissioner that the person named or described therein may be found in the State or may intend to enter the State, the Commissioner shall, subject to the provisions of this part, endorse a warrant for execution."

It is submitted by Counsel that it is clear from the wording of this section that on production of the warrant the Commissioner shall, subject to the provisions of Part III of the 1965 Act, endorse the warrant for execution. He submits that the provisions of section 43 (1) (b) are mandatory and must be complied with without delay. He submits also that where an Act confers a right to interfere with the freedom of an individual, the prescribed conditions are treated as mandatory and must be complied with. It is submitted that there is no provision within the Extradition Acts which allows the Commissioner to unilaterally delay the endorsing of the warrant for execution and that the terms of section 43 (1) (b) are mandatory. He states that the section obliges the Commissioner to endorse the warrants when they are produced where it appears to him that the person named in the warrant may be found or may intend to enter the state. He further submits that the immediacy contemplated in respect of the endorsement of warrants is also apparent in section 26(3)(a)of the Extradition (European Union Conventions) Act, 2001, which amends section 42 of the principal Act which deals with corresponding offences and which states:

"(a) the act constituting the offence so specified would, if done in the State on the day the warrant is produced under section 43 (1) (b), constitute an offence and the law of State."

It is submitted by Counsel that this section clearly contemplates that the date upon which the warrant is produced is the day it is received in the State, and that otherwise a warrant could be received on this date which did not correspond with an offence in the State and that it could then be held until the law was changed to achieve the necessary correspondence, and then endorsed and executed on a person in the State who, while he may have committed an offence in a place to which Part III applies, was safe in the knowledge that as no corresponding offence existed in the State he could not be extradited. Such a procedure, it is submitted, could not be lawful as it would offend the general principle of law against the operation of retrospective legislation.

It is submitted by Counsel that the extradition proceedings were not implemented expeditiously or immediately in the present case. In this regard, Counsel has referred to the judgment of the Supreme Court (Keane C.J.) in Haywood v. The Member In Charge Bridewell Garda Station, unreported, 15th February, 2002 in which at page 5 thereof, the learned Chief Justice stated :-

"Extradition orders, as the whole machinery of the Extradition Act 1965 and the subsequent amendments make clear, is intended to be a swift and immediate process. It means that where warrants are made and properly endorsed in this country and I am confining myself, since we are concerned in this case solely with extradition between here and the United Kingdom, the machinery is intended to be implemented in an expeditious and immediate fashion. It takes the form of warrants being backed by the police authorities in this country where there have been issued in the United Kingdom, of an application to the District Court for the appropriate extradition order and, for the making of that order by the District Court if satisfied that it is a proper case for extradition. It then provides that the whole machinery may be suspended to enable the applicant, within a period of 15 days, to apply to the High Court and if successful in the High Court by way of appeal to this court, for an order setting aside his extradition on the various grounds set out in that and amending legislation. That, of course, necessarily suspends the extradition process until such time as those proceedings are disposed of. But, as was made clear by Chief Justice O'Dalaigh with whom the majority of this court concurred in The State (Holmes) v. Furlong that does not in any way detract from the fact that the extradition procedure is an immediate and expeditious procedure."

In Haywood's case the respondent was released on foot of an Article 40 application on the grounds that there was a delay of five weeks from the conclusion of the appeal procedure and the execution of the extradition order itself. It is submitted therefore that in the present case the delay is even more obvious since there is a nine-month delay between the receipt of the extradition warrant in July 2002 and the eventual endorsement and execution of the warrants in April - May 2003.

It has been submitted that since extradition is intended to be a swift and immediate process, there was an obligation on the Assistant Commissioner to endorse the warrants for execution when they were received in July 2002, and that there was no reason why the extradition proceedings could not be commenced while the respondent was in custody.

It is further submitted that by failing to initiate the extradition proceedings when the warrants were received, the respondent has been left in a position where he was completely unaware that he was to be extradited upon completion of his sentence of imprisonment in May 2003. In so far as it may be submitted on behalf of the applicant that it would be impractical to commence the extradition proceedings while the respondent was still in custody, it is submitted that there is no provision in the Act which allows the Commissioner to delay the endorsement of the warrant in those circumstances.

In these circumstances, it is submitted that the nine months delay in the endorsement and execution of the warrants amounted to a breach of the respondent's right to the expeditious disposal of criminal proceedings and that this delay has further prejudiced the respondent's ability to properly defend himself against the allegations now made.

The Court has been referred to Cunningham v. The Governor of Mountjoy Prison (1987) ILRM, 33, and Dutton v. O'Donnell (1998) I.R. 218. In the former case, the applicant had been given temporary release on foot of a six-month sentence. His release was conditional on his reporting to a probation officer. Having broken this condition, the respondent requested the applicant's re-arrest. This re-arrest was not made until seven months later, and therefore after the expiration of the original sentence imprisonment. The court was given no explanation for the delay in executing the warrant and in this regard, Egan J. stated at page 35: -

"Why did nothing happened until 21st November 1984 which was approximately seven months later? Not one word of explanation for the delay is contained in the affidavit of respondent. If the purported re-activation had occurred not just seven months later but years later without explanation, could it be suggested that such re-activation was lawful? I would think not."

In the Dutton case the applicant was convicted in the District Court and was sentenced to a period of detention. He appealed to the Circuit Court, but before the appeal was heard he was convicted of further offences in respect of which he commenced a period of detention. The appeals against the original convictions came on for hearing in the Circuit Court after about six months, and were then withdrawn by the applicant. The original sentences were confirmed, but no warrants were issued by the Circuit Court judge. About three months later the period of detention being served by the applicant expired, and some five weeks later he was arrested on foot of warrants which had been issued by the District Court in respect of the convictions which had been affirmed by the Circuit Court. On the hearing of an application for judicial review, it was held by Barron J. in declaring the arrest to have been lawful but in deeming that arrest to have taken place on the date of the Circuit Court hearing, that delay in the exercise of a lawful power will not be permitted to deprive someone of a constitutional right, and that the extent of the impermissible delay will depend upon the particular right, and the particular circumstances of each case. At page 233 he stated:

" these cases show that the exercise of a lawful power will not be permitted to deprive someone of a constitutional right. The extent of the impermissible delay will depend upon particular right and the particular circumstances of each case. The line must be drawn at some point."

Accordingly, in this case, it is submitted that the delay in commencing the extradition procedure was in breach of the respondent's right to fair procedures and in breach of his right to individual dignity, by leaving the respondent in a position where he was unaware of the existence of such warrants up until the point of his release from custody by May 2003.

In this regard, it has been submitted that the respondent's right to fair procedures includes a right that the warrants should be endorsed and executed expeditiously, since the respondent would then have been in a position to seek advice on the extradition procedure, prepare his defence to the offences charged in the warrants, and prepare for the termination of his sentence against an informed background rather than proceeding upon the mistaken belief that he was about to be released having finished his sentence.

It has been submitted that the respondent enjoys a constitutional right to individual dignity which has been breached in the present case for the reasons stated. It is also submitted that when making an order under section 47 of the extradition Act, the court must have regard to the concept of justice contained in Article 34 of the Constitution. In this regard, Counsel has referred to the judgment of O' Higgins C.J. in The State (Healy) v. Donoghue (1976) I.R. 325 at page 348, where it is stated as follows:-

"In the first place the concept of justice, which is specifically referred to in the preamble in relation to the freedom and dignity of individuals appears again in the provisions of Article 34 which deals with the courts. It is justice which is to be administered in the courts and this concept of justice must import not only fairness and fair procedures, but also regard to the dignity of the individual. No Court under the Constitution has jurisdiction to act contrary to justice."

Counsel also referred to the case of Larkin v. O'Dea (1995) I.R.485 in which Hamilton C.J. held that there was an obligation on all organs of the State, and in particular the judicial arm thereof, to ensure that, in the operation of the provisions of the Extradition Act 1965, the constitutional rights of persons affected thereby were not violated, but defended and vindicated. In that case some confession evidence was obtained in circumstances where the applicant was in unlawful custody. The court held that it would be failing to defend and vindicate the personal rights of that applicant if it were to permit his extradition to Northern Ireland having regard to the fact that at his trial in Northern Ireland, evidence taken within the State, in violation of his constitutional rights, would be tendered and it might be admitted for the purpose of supporting the case against him.

On behalf of the applicant in the present case, Mr Barron has submitted that delay caused by the fact that the respondent is serving a term of imprisonment cannot be a ground for refusing to make an order under section 47 of the Extradition Act 1965. He has referred the court to case law in judicial review applications under section 50 of the Act in which it has been held that delay caused by the respondent's own fault could not avail him in order to avoid extradition under section 47 of the Act. He referred to the decision of Carroll J. in Harte v. Fanning (1988) ILRM. 70. At page 74 of her judgment, the learned judge stated: -

"therefore in so far as the applicant's case rests on delay, both the delay alleged in applying for extradition between 1980 and 1982 and the further delay between 1982 and 1986, the matter is governed by Hanlon v. Fleming. The fact that the applicant was not tried as a 16 year old was entirely the applicant's fault because he escaped from custody. The delay between the first request for extradition in 1982 and the request in August 1986 was also due to the applicant's fault. If he had not committed a crime, he would not have been in prison."

The court was also referred to the case of Quinlivan v. Conroy (No.2) (2000) 3 IR 154 in which Kelly J. held that, notwithstanding the considerable lapse of time since the commission of the offences alleged, most of the delay in question was of the applicant's own making and he could not rely on same to prevent his extradition. Again, this was an application under section 50 of the Act and not in relation to an application under section 47. The delay in that case was caused largely by the fact that the applicant had escaped from lawful custody. Kelly J stated at page 179 of his judgment:-

" looking at the delays which have occurred overall it seems to me that the bulk of responsibility for them lies at the feet of the applicant. I do not think that he can rely on his unlawful escape and being at large for 20 months, nor his time in custody before and after his trial in the Special Criminal Court amounting to a further two years and seven months, as a ground for holding that it would be unjust or opppressive or invidious to deliver him up. These proceedings were not then prosecuted with the any degree of vigour. Whilst the respondents do not appear to have done much to move them on, the primary obligation to do so lies with the applicant."

Mr Barron has also submitted that there has been no breach of the specific terms of section 43 of the Act. While it is accepted that the terms of the section are mandatory, there is no time provision contained therein.

Mr Barron also submitted that section 43 of the extradition Act 1965 must be read in the context of the entire Act and the procedures set out therein. The provisions of section 43 must, in his submission, be read in conjunction with the requirement that upon the arrest of the person named in the warrant, that person must immediately be brought before the courts for the purpose of an application for an order or extradition under section 47 of the Act. He submits this in circumstances where the person in question is in custody serving a prison sentence, it makes no sense that there would be an obligation upon the authorities to arrest that person on foot of extradition warrants while the person is serving that prison sentence, since it would then be necessary to bring that person before the High Court so that an order could be made under section 47. In effect, the court would be making an order which could not be carried out, and that this would produce an absurdity. He referred to the fact that under section 47(1) of the 1965 Act, it is provided that: -

"where a person named or described in a warrant is before the High Court in pursuance of this Part that Court shall, subject to the provisions of this Part make an order for his delivery at some convenient point of departure from the State into the custody of a member of a police force of the place in which the warrant has been issued, for conveyance to that place, and remand him until so delivered."

If such an order was made in respect of a person serving a prison sentence, the reality, it is submitted by Mr Barron, is that upon the making of the order, the prisoner would simply be returned to prison in order to complete his sentence before the order was carried or. He submits that this could not on any reasonable interpretation of the Act be the intention of the legislature. In this regard, Mr Barron also referred to section 53 of the Act which provides that if the person in respect of whom an order has been made under section 47 is not delivered up under the order within one month after it is made, the High Court may, unless reasonable cause is shown for the delay, order him to be discharged.

Mr Barron accepts that the delay argument does not appear to have been argued before in relation to an application for an order under section 47, but that such arguments have been made under section 50 of the Act, and that the High Court and the Supreme Court have consistently found that any delay caused by the person at the time serving a sentence of imprisonment is that person's own fault, and that in addition, the person would be required to show that some serious prejudice has been caused to him by the delay.

In this particular case, Mr Barron points to the fact that the respondent was aware that the authorities in England were pursuing the offences the subject of these warrants since he was interviewed in prison in 1999 and he provided blood samples. He submits that the respondent may or may not have actually known that he was going to be arrested as soon as he completed his sentence, and that there is no positive averment in the affidavit of Sinead Maguire to which I have already referred, to the effect that he was unaware of the fact that he would be so arrested. Mr Barron points out that there is nothing in the affidavit to suggest prejudice on the basis that witnesses may have gone missing or that he knew of somebody whom he could have contacted but has now lost touch with, and that generally speaking, nothing has been demonstrated in the way of possible prejudice. He submits that the onus of establishing prejudice lies firmly with the respondent, and that submission is without prejudice to his general submission that the question of delay is not a matter appropriate for argument in relation to an application for an order under section 47 of the Act, but rather is a matter to be raised, if at all, in an application under section 50 of the Act.

Conclusion:

The essence of the respondent's objection in this case is the fact that the authorities here have delayed for a period of nine months from the date on which the warrants were received, before having the warrants endorsed for execution by the Assistant Commissioner, and that the fact that the respondent was in custody during that time serving his sentence of imprisonment is not a permissible reason or a justifiable reason for such delay, given the mandatory nature of the wording of section 43 of the Act.

It is beyond argument of course that section 43 is couched in mandatory terms. However it is also clear of that the word "forthwith" or some such similar word is also absent from this section, and neither is there any specific provision to deal with a situation such as the present case, where a warrant is received for endorsement and execution in respect of a person then serving a term of imprisonment in this jurisdiction. It seems to me that an absurd result would be achieved if this section was to be interpreted as meaning that in a case such as the present one, the warrants were required to be endorsed and executed by arresting the person while already in prison, and thereupon bringing that person before the High Court for the purpose of making an order under section 47 in his circumstances where such an order could not be given effect to until such time as the term of imprisonment had come to an end. That would be the result if the respondent's submissions.

The respondent has submitted that he is prejudiced by the delay and by not knowing that he was to be arrested upon his release. I can see no reality in that submission. First of all, it is clear that any delay which has occurred is the fault of the respondent himself, as he would not be in prison if he had not committed a crime. With respect, I agree what the reasoning of Carroll J. in Harte v. Fleming (supra). Secondly however I cannot accept that the reasons set forth in the affidavit that of Sinead Maguire to prejudice, are convincing. It is hard to see, in reality, that the respondent has been prejudiced by the delay, in his defence in respect of the alleged offences.

In circumstances where the person named in the warrant is at that time serving a sentence of imprisonment in a prison in this jurisdiction, it is reasonable that the warrant would either be held in this jurisdiction pending that person's release from prison, or that a warrant would be returned to the authority in the requesting jurisdiction in order to await its return for endorsement and execution upon completion of the term of imprisonment.

I would however be concerned from a fair procedure point of view if a warrant was retained here awaiting the completion of a term of imprisonment, or if the authorities here were aware that a warrant was going to be returned here closer to the time at which a prisoner was due to be released, if that prisoner was unaware of the fact that upon his release he was to be re-arrested for purposes of being extradited on foot of that warrant. There could be no prejudice to the State by informing the prisoner in good time, or within a reasonable time, that he was to be arrested upon his release. Not to do so imports an element of unnecessary surprise or shock, and effectively deprives the prisoner of an opportunity of mentally preparing himself for re-arrest, in a situation where he would otherwise be looking forward to his liberty. That would seem to me to be unfair and unjust. However in this particular case I am not satisfied that the respondent was taken by surprise in the manner which I am suggesting. It seems clear that the respondent, having been interviewed about these offences while in prison, would have been aware that upon his release the authorities would seek his arrest. The onus is upon the respondent to establish that he was not aware that he would be re-arrested on his release, and I am not satisfied that in this case the respondent has discharged that onus.

I am satisfied that for the purposes of section 47 of the Act, all the statutory requirements have been complied with in relation to correspondence of offence, minimum gravity, identification, and the arrest of the person named in the warrants, namely the respondent. Indeed, no submissions have been made to the contrary on behalf of the respondent.

In view of my findings in relation to the submissions made on behalf of the respondent, I am therefore satisfied that it is appropriate to grant an order under section 47 (1) of the Extradition Act 1965 for the delivery of the respondent at some convenient point of departure from the State into the custody of a member of the London Metropolitan Police for conveyance to that place, namely London, England and I remand him in custody until so delivered.

Approved

Michael Peart