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Cite as: [2003] IEHC 630

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THE HIGH COURT

Rec. No. 2002/798JR

BETWEEN

WAYNE PATRICK LYNCH

APPLICANT

AND

THE ATTORNEY GENERAL THE CHIEF STATE SOLICITOR AND PATRICK O'TOOLE

RESPONDENTS

AND

IN THE MATTER OF AN APPLICATION FOR RELIEF UNDER SECTION 50 OF THE EXTRADITION ACTS 1965/2001 IN THE PROCEEDINGS ENTITLED

BETWEEN

WAYNE PATRICK LYNCH

PLAINTIFF

AND

PATRICK O'TOOLE

DEFENDANT

JUDGMENT of Mr. Justice William M. McKechnie delivered the 8^thday of April 2003.

1. Issues for consideration:

In these rendition and related judicial review proceedings there are a number of essential issues which require consideration by this court. These said issues can be summarised as follows:

No. 1: Whether a person who is the subject matter of an extradition warrant(s) can procedurally divide his challenge to the domestic processing of such warrant(s) by firstly proceeding with a judicial review application, and thereafter if unsuccessful, by continuing his challenge through the mechanism of s. 50 of the 1965 Extradition Act as amended, or whether both sets of such proceedings, being in existence at the same time, should be disposed of simultaneously;

No.2: Whether this court could refuse to extradite a person, if it concluded as a matter of fact, that a member of An Garda Siochana who was investigating unrelated criminal charges against that person had sought to use the existence of an extradition warrant(s) for the purposes of obtaining information or gaining assistance from such person in relation to the alleged criminal activity of third parties, with such attempt(s) however yielding no material benefit to the said Gardai and resulting in no incrimination of that or any other person;

No. 3: Whether a complaint of delay, simpliciter, in the issuing and/or execution of an extradition warrant (s) could attract from this court the remedy of refusal and release, in circumstances where the other requirements of s. 50 (2) (bbb), of the 1965 Act, (as inserted by s. 2 (b) of the Extradition (Amendment) Act 1987), could not be satisfied,

No. 4: Whether, in the circumstances of this case, the respondents have satisfied the requirements of Part III of the aforesaid Act and as a result whether this court, in respect of the applicant, should make an order under s. 47 thereof; and finally,

No. 5: Whether if such an order is made the applicant has any defence to his extradition under s. 50 (2) (bbb) of the said Act.

2. Immediate Background:

On the 1st October, 2002 the applicant was arrested on foot of two warrants, which purely for convenience are hereinafter referred to as extradition warrants, rather than warrants under Part III of the 1965 Act. Having been so arrested and brought before the High Court, he was committed to custody to await the processing of the extradition request. His application for bail was refused. Thereafter, two sets of proceedings were instituted on his behalf, the first in point of time was what might be described as conventional judicial review proceedings with leave, in respect thereof, being obtained from this court, (O'Neill J.,) on the 2nd December, 2002. These proceedings were followed by the issue of a Special Summons dated 4`h December, 2002 which had a return date for Tuesday 10`^h December, 2002. The relief, requested in the judicial review proceedings, and permitted by the order of O'Neill J., included inter alia, an injunction restraining the named respondents, being the Attorney General, the Chief State Solicitor and Patrick O'Toole, an Assistant Commissioner of An Garda Siochana, from pursuing the extradition proceedings, and secondly a declaration that this said request for extradition had been brought in breach of the applicants' right to a speedy trial and was otherwise an abuse of process. The special summons sought the release of Mr. Lynch under s. 50 of the Extradition Acts 1995/2001.

3. The statement grounding the application for judicial review was supported by an affidavit of the applicant and one from his solicitor, Mr. Terence Lyons from Messrs Terence Lyons and Company. Both documents exhibited relevant material. The affidavits and exhibits in the s. 50 proceedings were identical to those in the judicial review as was the replying affidavit of Sergeant O'Neill who effected the above mentioned arrest. In addition, a second affidavit was sworn by Sergeant O'Neill in the judicial review proceedings which simply specified, in more detail, the dates of certain relevant steps in the extradition process. Detective Garda Philip Rowe also filed a replying affidavit. This evidence was responded to by further affidavits from the applicant, his mother and his uncle.

4. When the matter first came to trial, it was clear that no proceedings had taken place before the High Court, (formally the District Court) under s. 47 of the Extradition Act 1965, as amended by s. 12 of the Extradition (Amendment) Act 1994 and further by s. 20 of the Extradition (European Union Conventions) Act 2001. Since both the judicial review proceedings and the special summons were before the court on that occasion, it struck me as being both sensible and convenient that all matters should be heard together. However, counsel on behalf of Mr. Lynch took the view, that, as of right, his client was entitled to proceed with the judicial review challenge and to defer the s. 50 proceedings until such time as the former had been determined. This therefore became an additional issue in the judicial revie proceedings. Accordingly the case in that way commenced and proceeded to a conclusion on the judicial review side.

5. Having reserved its decision on these issues, the Court then announced its conclusion that this format and order of proceeding was not correct and indicated its intention to forthwith embark upon the s. 47, and, if necessary, the s. 50 proceedings. At the conclusion of such hearings, which has now occurred, the court informed the parties that it would give its reasons in one judgment on all matters which had been canvassed in both sets of proceedings, to include the s. 47 application. This it now proposes to do.

6. Statutory Provisions:

The following are the relevant statutory provisions of the Extradition Acts 1965-2001, which are material to the facts, matters and circumstances of this case. These are as follows:

(A) "47.-(1) 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 into the custody of a member of a police force of the place in which the warrant was issued, for conveyance to that place, and remand him until so delivered.

(1 A) Subject to the provisions of this Part, a person in whose case an order is made under sub-s. (1) shall be brought by the Garda Siochana as soon as may be to a point of departure from the State and there delivered into the custody of a member of the police force of the place in which the warrant concerned was issued for conveyance to that place.

(2) An order should not be made under sub-s. (1) if it appears to the court that the offence specified in the warrant does not correspond with any 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.

(3) ....

(4) ....

(5) No appeal shall lie to the Supreme Court from an order of the High Court under this section, except on a point of law."

(B) "48.-(1) A person to whom an order under s. 47 relates shall not, except with his consent given before a Judge of the High Court.. ...be delivered up under the order until the expiration of fifteen days from the date of the order.

(2) If during the period of 15 days referred to in sub-s. (1) an application is made by or on behalf of a person to whom that subsection applies for an order of habeas corpus, he shall not be delivered up while the application is pending.

(3) The Court, on making an order under section 47, shall inform the person to whom it relates of his right to make such application and that he will not be delivered up during the said period of fifteen days, except with his consent, or while any such application is pending.

(4) ……"

(C) "50.-(1) A person arrested under this part shall be released if the High Court or the Minister so directs in accordance with this section. (2) A direction under this section may be given by the High Court where the court is of opinion that ....

(a) ....

(b) ....

(bb) ....

(bbb) by reason of the lapse of time since the commission of the offence specified in the warrant or the conviction of the person named or described therein of that offence and other exceptional circumstances, it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under s. 47, or

(c)….

(3) ….

(4) …."

7. Issue No. 1.

In the statement of opposition, there is a ground of objection to the effect that the applicant is not entitled to pursue his judicial review challenge to the extradition as sought, given the existence of proceedings under s. 50 of the 1965 Act. It i alleged that this section allows the High Court to fully adjudicate on any challenge to a request for extradition and in particular to adequately deal with an issue of delay if that should arise. In the respondents' submissions, whilst this view point is repeated, it is, however, somewhat both enlarged upon and restricted. It is enlarged in that it is claimed that s. 50 provides a mechanism for dealing with the applicant's complaint of an abuse of process, but restricted in that it is alleged that any question of delay can only be presented under and in accordance with paragraph (bbb) of sub-s. (2) of s. 50. In addition it is submitted that in any event this court should not exercise its jurisdiction to grant an order in the judicial review proceedings given the existence of an alternative remedy in the said s. 50. McGoldrick v. An Bord Pleanala [1997] 1 I.R. 497, The State (Glover) v. District Justice McCarthy, [1981] I.L.R.M.47 and The State (Abenglen Properties Limited) v. Dublin Corporation [1984] I.R. 381 were all referred to in support of this submission.

8. On behalf of the applicant, it is claimed that under s. 50 (2) (bbb), the relevant criterion is whether by reason of lapse of time "and other exceptional circumstances" it would, in all the circumstances, be "unjust, oppressive or invidious" to order the extradition of Mr. Lynch. It is submitted that the relevant case law, involving the application of this provision, makes it clear that very significant delays may be tolerated in proceedings under s. 50 on the grounds that "other exceptional circumstances" are absent and that relief may be refused unless a variety of matters specified in this section are established. It is said that in judicial review proceedings many judgments of the higher courts have made it clear that delay alone may ground a successful application for injunctive relief. Accordingly, it is asserted on behalf of the applicant, that Mr. Lynch is entitled to make the case for his release on the grounds of pure delay and that s. 50 does not represent an adequate alternative remedy in respect of this ground. In addition, it is claimed that it is both convenient and proper for th judicial review proceedings to be dealt with prior to any procedures being invoked either under s. 47 or s. 50 of the Act of 1965.

9. In none of the reported decisions which have been opened, can I find a case, involving an extradition request made under Part III of the 1965 Act where the s. 50 procedure was not used or availed of. In all such cases, a special summons was served and the issues therein canvassed were dealt with by either the High Court or the Supreme Court or both. However case law also demonstrates that on a number of occasions parallel proceedings were also instituted. In Sloan v. McKee & Magee v. Culligan [1992] 1 I.R. 223 each of the plaintiffs served a special summons but in addition two of them also took a challenge by way of judicial review. Lynch J. in the High Court dealt separately with the claims advanced under each set of proceedings as indeed the Supreme Court did on appeal. Whilst I cannot see any reference to procedure as forming an issue in these cases, equally so I cannot see any critical observation made in either court as to the manner of proceeding. The only point of relevance, but in my view an important one, is that both sets of proceedings were consolidated by the High Court prior to trial and heard at the same time.

10. A similar situation occurred in Quinlivan v. Conroy (No. 2) [2000] 3 IR 154. In that case the applicant issued a special summons under s. 50 as well as instituting judicial review proceedings. As with Sloan et al, both sets of proceedings were heard and determined at the same time. In his extensive judgment Kelly J. dealt with some issues under s. 50 and also some issues within the remit of the judicial review proceedings. Likewise in that case I cannot detect any observation advanced either in support of or in opposition to, this form of challenge in such extradition proceedings.

11. As a result of these and other authorities, I am satisfied that an applicant who is facing a request for extradition is not confined in the method of his challenge to the issuing of a special summons under s. 50 of the 1965 Act. He can, as these cases show, also issue judicial review proceedings. Disregarding for a moment the scope of any permissible relief within this form of challenge, it seems to me that notwithstanding the acceptability in principle of concurrent proceedings, it must be that for convenience and practicality both sets should be heard by the same court at the same time. Whether formally consolidated (see Order 49, rule 6 of The Rules of the Superior Courts) or heard concurrently or sequentially matters not: the important point being that such proceedings are heard together. With such a procedure I cannot see how an applicant is adversely effected or otherwise disadvantaged. On the other hand, I can see very considerable merit in a practice which would enable all issues, which at the date of trial, are and are so recognised, as live issues, to be canvassed in the same court at the same time. This would be, from an applicant's point of view, a more convenient way, a more cost effective way and a more structured way to achieve an expeditious solution to the proceedings. From a courts' point of view, particularly now that the High Court has replaced the District Court in s. 47 proceedings, it could only enhance the practical administration of justice as it would avoid what occurred in Harte v. Fanning and Mahon where on the 5th March, 1987, Carroll J. gave judgment in the judicial review proceedings (1988 I.L.R.M. 20) and on the 6th May, 1987, Blayney J. gave Judgment in the s. 50 challenge (1988 I.L.R.M. 75). Therefore in my view whilst in this case it was permissible in principle to have judicial review proceedings it was not correct in practice to divorce such proceedings from the s. 50 challenge.

Accordingly, I would be of the opinion that in future all such proceedings should be heard simultaneously, save in exceptional circumstances when for the most compelling of reason to be determined by the trial judge one set may be segregated from the other.

12. The situation with regard to an application for habeas corpus is of course quite different. In the first place, s. 48 (2) of the 1965 Act expressly recognises the entitlement of a person in respect of whom an Order has been made under s. 47, to seek his release by way of habeas corpus and secondly on such application being moved within 15 days from the date of such order, the sub-section goes on to provide that such person shall not be delivered up prior to his case being heard and determined. This mandatory stay on delivery, in the event of such proceedings being taken, is I think the essence of the sub-section.

This because apart altogether from s. 48 (2), there is of course Article 40.4.2 of the Constitution which provides that any person who claims to be unlawfully detained can challenge that detention in the High Court by seeking an order of habeas corpus. This constitutional foundation for the seeking of such an order transcends any other basis upon which a person may seek his freedom from what is claimed by him to be an unlawful detention. Therefore, in the context of this type of case, it is evidently quite permissible for such a procedure to exist side by side with a s. 50 special summons and there is nothing either in practice or in principle which would enable one to question the validity of such a proceeding. In many of the reported cases such orders of habeas corpus have also been sought as well as a person's release under s. 50. See McMahon v. Leahy [1984] I.R. 525 and Ellis v. O'Dea [1991) I.R. 251. In both of these cases however, the relief claimed under the haheas corpus procedure was heard and determined at the same time as the s. 50 special summons. So, whether the second set of concurrent proceedings are either judicial review or haheas corpus it seems to me, in principle, that for the reasons above stated both should be embarked upon simultaneously. This view is not intended of course, to restrict in any way the seeking of haheas corpus which by law is otherwise presently available.

13. Issue No. 2:

Undisputed background:

The plaintiff, who was born in Dublin on 14^th March, 1975, was at all times an Irish citizen and domiciled in this country. On the 15^th October, 2000, having been in England for a short period of time, it is alleged against him that at Stevenage, Hertfordshire, he did on that date unlawfully and maliciously wound one Sayed Nader Seifi with intent to do him grievous bodily harm contrary to s. 18 of the Offences Against the Person Act 1861, and secondly, on the same occasion, that he unlawfully and maliciously wounded the said Mr. Seifi contrary to s. 20 of the Act of 1861. Shortly after the alleged commission of these offences, he was arrested and questioned by the police and some hours later was given station or police bail, a condition of which compelled him to appear at a later date at the local Magistrates Court. Having failed to do so, a bench warrant was issued for his arrest at some unspecified date but almost certainly on a date prior to the end of October of that year. Apparently because of alleged threats to his person, the accused returned to Ireland within a day or two of the 15^th October and accordingly failed to honour his bail conditions. On his return to this jurisdiction, he resided with his mother at 4, St. Auden's Terrace, High Street, Dublin 8 which was and remains the family home. He stayed at this address until June 2002 when for approximately four weeks he moved with his girlfriend to Ballycullen. Thereafter he resided at 127, Cooley Road, Drimnagh where ultimately he was arrested pursuant to the warrants above mentioned. At all stages he lived openly and whilst at High Street, he signed on for certain periods at Bishop St. Labour Exchange and also was in receipt of a rent allowance from the Health Board at Drimnagh. At no time did he return to the United Kingdom or otherwise leave this jurisdiction.

14. On 20`^h September, 2001, a Justice for the Hertfordshire Commission Area, being a judicial authority in England and Wales, issued a warrant, identified as "Warrant A", for and in respect of Mr. Lynch. This alleged that on 15^th October, 2000, at Stevenage he committed the s. 18 offence against the said Mr. Seifi and in respect thereof it directed the Constables of the Hertfordshire Constabulary to arrest the accused and bring him immediately before the Magistrate's Court. A similar warrant, identified as "Warrant B," issued on the same day in respect of the alleged offence contrary to s. 20 of the 1861 Act. On 3`d October, 2001, these extradition warrants were received in this jurisdiction. On 8th November, the advice of the Attorney General was obtained and on the 15^th November, these warrants were approved by the Department of Justice. On 9th September, 2002, the third named respondent in the judicial review proceedings, Assistant Commissioner Patrick O'Toole, endorsed these warrants and the same were executed by Sergeant O'Neill on 1st day of October, 2002. The applicant's arrest on that occasion was, as I have said, effected at 127 Cooley Road, Drimnagh, Dublin 12.

15. Both prior to travelling to the United Kingdom in the year 2000, and subsequent to his return to this jurisdiction in October of that year, the applicant was involved in two incidents which gave rise to the preferment of criminal charges against him. On 21" May, 2000, at Kilkenny, it was alleged that the applicant was in unlawful possession of drugs contrary to s. 3 of the Misuse of Drugs 1977, (as amended) and also that he had possession of such drugs for the purposes of sale or supply contrary to ss. 15 and 27 of these said Acts. Having failed to attend the District Court, the resulting bench warrant was executed, in the context of the second set of criminal charges against him (next mentioned), by Sergeant Lyng from Kilkenny Garda Station on 4^thOctober, 2001. Ultimately, on 13^th November of that year, he was sentenced, on a plea, to twelve months on each charge with the entire period thereof being suspended.

16. In September 2001, Detective Garda Philip Rowe, from Harcourt Terrace Garda Station, Dublin 2, received a complaint in relation to a stolen cheque where an endeavour to obtain IR£18,700 by false pretences had been made at the Bank of Ireland, College Green. Apparently the cheque had been stolen on loth September from offices at Merrion Sq. and had been lodged by the applicant to his own account at College Green some days later. On 1^StOctober, 2001, Garda Rowe arrested the applicant at 4 St. Audens Terrace, High Street in respect of this stolen cheque and detained him pursuant to s. 4 of the Criminal Justice Act 1984. On Harcourt Terrace Charge sheet numbers 1531/2001 and 1532/2001, the applicant was charged firstly with intent to defraud the manager of the Bank of Ireland, College Green of £18,700 by falsely pretending that the subject cheque was a good and valid order contrary to common law, and, secondly, that he had lodged the stolen cheque knowing or believing the same to have been stolen contrary to s. 33 of the Larceny Act 1916 (as amended by s. 3 of the Larceny Act 1990]. He was released on station bail and remanded to appear at Court 45 of the Dublin Metropolitan District Court, on 4th October, 2001.

17. Between the date of his arrest and the remand date, Garda Rowe confirmed with certainty what he suspected on 1⁵` October, namely, that a bench warrant from Kilkenny District Court existed for the accused and accordingly, as above stated, he so arranged for Detective Sergeant Jim Lyng to execute that warrant on the 4^th October. On that date the accused was arrested and taken into custody. Consent was forthcoming to independent bail which Mr. Lynch took up but only after spending some days in prison.

18. Between October, 2001, and February, 2002, the accused appeared on remand before the District Court on several occasions whilst the Book of Evidence was being prepared. Apparently the District Judge had refused jurisdiction to deal with the aforesaid charges in the District Court. Ultimately on the 1" February, when the Book was still not ready, that court struck out these said charges as against Mr. Lynch. The same were never reactivated with the D.P.P. finally indicating on 22"^d August, 2002, that the accused should not be recharged with these offences. That information was communicated to Garda Rowe on 5^thSeptember. On the 1^Stof October, as I have previously said, the extradition warrants were executed by Sergeant O'Neill.

19. Disputed background.

In addition to the above forming an agreed part of the background to this case, there are other issues of a factual nature in respect of which considerable controversy arise. In his original affidavit sworn on the 29^th November, 2002, which grounde both the judicial review and the s. 50 proceedings, the applicant alleged that in September 2001, (approximately) Garda Rowe informed him that the Garda authorities had received from their English counterparts a warrant involving the applicant, but that if Mr. Lynch furnished certain information to this Garda about the other person or persons involved in the stolen cheque, then the English warrant would not be executed. Reference was also made to a warrant from Kilkenny. In response to this conversation, Mr. Lynch made it clear that he would not be able to assist the Gardai in implicating such person(s), whereupon it is sworn by him that in reply Garda Rowe said that the applicant would have plenty of time to think about it but that if co-operation was not forthcoming the English warrant would be executed.

20. In his second affidavit sworn on 29^th January, 2003, which was in response to a replying affidavit by Detective Garda Philip Rowe, the applicant also deals with this matter but on this occasion does so in much more detail. In fact he identifies the following several occasions and events which are relevant to this Issue, No.2:

(a) On or about the 28^th September, 2001, when being interviewed in relation to the stolen cheque, he claims that Garda Rowe informed him of the existence of warrants for his arrest and in particular he recalls mention of the Kilkenny warrant.

(b) On 1" October, when he was due to appear at the Bridewell District Court in relation to the stolen cheque, Garda Rowe came to his house and asked him for a private word prior to his attending court. This Garda then decided to drive the accused to the District Court. On entering the car Mr. Lynch was introduced to another Gardai who was identified as Sergeant Lyng from Kilkenny Garda Station. Garda Rowe inquired of the applicant as to whether or not he was going to help Sergeant Lyng or himself in relation to the charges which stood levelled against him. He said he could not help. He was then arrested on foot of the Kilkenny warrant, and taken into custody with consent to an independent bail.

(c) Having taken up bail, he once more appeared at the District Court (this time at Cloverhill)on 7^thOctober. After his case had been dealt with, he asked Garda Rowe for a return of his mobile phone and £180 in cash which had been surrendered by him during his first interview, which he asserted took placed on or about 28^th September, 2001. He was told to contact Garda Rowe at Harcourt Terrace Garda Station. This he did some three to five days later. Initially in that telephone conversation he was informed that he could collect these items at the station but then Garda Rowe asked him whether or not he was at home. On being informed that he was, this Garda then changed his mind and said that he would deliver the phone and cash to the applicant at his said house. Some short time thereafter, at approximately 10 pm, Garda Rowe arrived at No. 4 St. Auden's Terrace and having returned his mobile phone and cash, once again asked the applicant to give him information about other persons' involvement with the stolen cheque. He repeated his unwillingness to so do. He then claims that Garda Rowe told him about the English warrant and that he, the guard, could have the accused back in custody. Knowing that Mr. Lynch did not enjoy his remand in jail, following the execution of the Kilkenny warrant, the guard again inquired whether or not help would be forthcoming; this time regarding persons involved in the drug trade. The same response was given whereupon Garda Rowe is alleged to have said that the applicant could have time to think about it and that he would see him in court.

(d) Between November, 2001 and January 2002, the applicant, as I have previously stated, appeared in the District Court on a number of occasions. On two such occasions, he claims that Garda Rowe approached him and again sought information about a certain individual's involvement with the stolen cheque and at the same time also mentioned the existence of the English extradition warrant. (e) Finally, in or about January 2002 or on I^S` February 2002 - there being some uncertainty about this final date but in any event on the occasion when the charges were struck out for the DPP's failure to serve the book of evidence, - Garda Rowe is alleged to have followed the applicant out of court and once more asked was he going to help him. The English extradition warrants were again mentioned as was Garda Rowe's allegation that when he first interviewed the applicant on the 28 `" September, 2001, he found two ecstasy tablets in his possession. At no time was Mr. Lynch prepared to divulge nor did he give any information to either Sergeant Lyng or Detective Garda Rowe on the matters referred to or on any matter involving third parties.

21. Garda Rowe in a replying affidavit sworn on the 22"^d January, 2003, sets out much of the undisputed background which is above referred to. He refers to his first interview with the applicant during which he asked him to identify the person who had supplied the stolen cheque. He believes a false name was given in response. He sets out his pre-arrangement with Sergeant Lyng who executed the Kilkenny warrant on the 4th of October. He informs the court as to the reason why the Book of Evidence was not available in January 2002, and that in August of that year, final instructions were received from the DPP which confirmed that the accused was not to be recharged with the two offences previously laid against him. He also mentions the ecstasy tablets which I will again refer to later in this judgment. He then denies ever promising the applicant that the extradition warrant would be cancelled or would not be executed and says that at no stage did he offer Mr. Lynch any inducement or make any threat against him. He claims that he did not become aware of the existence of the extradition warrant(s) until November or December of 2001, and that since such warrants were only received in this jurisdiction on the 3rd of October, it was not physically or humanly possible for him, to have referred to these in the preceding September of the same year. He rejected any suggestion that Mr. Lynch was the victim of any threat or inducement of any kind and in his opinion the allegations made in respect thereof were entirely untruthful and unsupported by the facts.

A major conflict on affidavit was thus joined and accordingly it was necessary to permit both deponents to be cross examined on their respective affidavits. Mr. Terence Lynch, an uncle of the applicant, was also cross-examined.

22. During the course of this oral examination the applicant dealt with the reason why he absconded from England and returned to Dublin. These reasons, as distinct from any passage of time attributable thereto or caused thereby, are not in my view of any great significance to any issue which I must consider. He then dealt with his alleged conversations with Garda Rowe and repeated the essence of what is contained in his second affidavit. In addition, he elaborated somewhat on the night upon which Garda Rowe returned to him his mobile phone and money. He said that on such occasion the guard told him that there was this warrant in existence for him and that he, the guard, could have the accused person back in custody that night if he saw fit. Despite however threatening to revoke his bail, the Gardai said that he would give him some time to think about whether or not he would supply the information as requested. There was no way, however, he would or could supply this information and that view of his was one which never altered. The guard knew that Mr. Lynch had never been in jail previously and that he was quite frightened by his only experience to date. Definitely, in his opinion, the extradition warrant was being used as a lever in order to obtain information about other individuals involved in the stolen cheque as well as information about the illegal drug trade in general. He said that whilst the charges preferred against him were being processed through the court he felt that the Gardai might execute the extradition warrant(s) on any of those occasions but that once these charges had been struck out, either at the end of January or in early February 2002, he felt that the prospect of any execution thereafter had seriously diminished. He was greatly surprised when in fact he was arrested in October 2002. Finally, he rejected any suggestion that he was lying and endeavoured to explain the inaccuracy of dates mentioned in his affidavits, by relying on defective memory and/or on the non availability of essential documents at the relevant time.

23. In his direct evidence to this court, Garda Philip Rowe reasserted the position adopted by him in his replying affidavit and reaffirmed his belief that at no time did he make any threat against or offer any inducement to the plaintiff, that at no time did he nor was he in a position to suggest that in return for information the extradition warrant would not be executed, and that at no time did he engineer nor was he part of a regime which misused, the extradition machinery for improper purposes or with any improper motive. In addition his evidence confirmed certain other matters which are hereinafter referred to.

24. Decision:

Having considered the entirety of the evidence, which, as I have previously stated, also included the cross examination of Mr. Terence Lynch, I have come to the conclusion that the disputed allegations made by the applicant, in all their material and substantive respects, were, on the balance of probabilities, made out and sustained by him. I have so decided not only on an assessment of the witness' individual demeanour and manner in the witness box but also because, as is evident from what is hereinafter summarised, a great deal of what Mr. Lynch asserts is in fact borne out and corroborated by the evidence of Garda Rowe himself. Moreover, in arriving at this decision, I have been influenced by the evidence of Mr. Terence Lynch which I regard as being utterly credible and entirely reliable.

25. The grounds upon which, and the reasons by which, I have come to this conclusion are as follows:

I am satisfied that certain dates tendered in evidence by Garda Rowe are correct and that the applicant is inaccurate when he refers to the date of his initial arrest as being the 28 `'' September, 2001, and when he refers to his first court appearance as having taken place on the 1⁵` of October of that year. Rather, the correct dates are the 1" and the 4`h of October, respectively. Notwithstanding these errors, he gives as the context in which various conversations took place, the occasion of his detention and the occasion of his first appearance in the District Court on foot of the cheque charges. These events, as is confirmed by the evidence, unquestionably took place and thus I cannot believe that his reference to the dates is anything more than simply a mistake on his part, whatever the correct explanation therefor might be. These dates were at all times capable of external verification and therefore no benefit could possibly accrue to him by deliberate misrepresentation. Consequently I do not believe that the applicant's inaccuracy in this regard materially affects his evidence in other areas, certain not with regard to credibility, nor in my view, with regard to accuracy.

26. That a discussion about warrants and, in particular, about a warrant from Kilkenny took place between Mr. Lynch and Garda Rowe on the l" October, 2001, is confirmed by the Garda's own evidence. This arose in the context of whether or not the applicant would be given station bail by Garda Rowe. This Garda knew of the existence of warrants and had a high suspicion that at least one had issued from Kilkenny. In fact, he phoned Kilkenny Garda Station about this matter on the 1⁵` October, but the relevant office had closed by the time of his call. In addition he agrees with the applicant's recollection that on being asked about Kilkenny, Mr. Lynch denied he had received any charges from that City. So a reference to warrants and to Kilkenny was in my view undoubtedly made by the Gardai on tl~e l^stOctober, 2001.

27. That the Gardai drove the applicant to his first appearance in the District Court on the 4th of October is again not in dispute. Neither is the execution of the Kilkenny warrant by pre-arrangement with Sergeant Lynn. What is, however, of interest is the reason why Gardai Rowe attended at the accused's home and drove him to the courthouse on that occasion. The principle reason proffered by Garda Rowe was a fear that the applicant would not attend court. This because the guard had a belief, based on confidential information which was not disclosed, that at that time Mr. Lynch was actively evading warrants. He also made a reference to the execution of the Kilkenny warrant but in passing only, relying essentially on the main reason given by him. This justification, is I think questionable. Nothing of relevance in this context had changed between October 2001 and the beginning of February 2002 when the charges were struck out. Logically that fear should have continued. And yet for the succeeding seven months there was no attempt to arrest Mr. Lynch on foot of the extradition warrants or otherwise to take steps to ensure his availability when the Gardai decided to so do. On being asked to explain this, the Garda's response was that since he had arrested the applicant on one occasion he was confident that he could "pick him up" again. I therefore have, despite Mr. Lynch's failure to honour bail on previous occasions, a sense of unease, to put it no higher, as to the true motive for the Gardai attendance at the applicant's house on 4^thOctober, 2001.

28. That unease is seriously compounded by the action of Garda Rowe in personally returning to the applicant his mobile phone and cash. Though the usual procedure is for the released person to return to the station and collect his belongings, the explanation offered in this case is that the Guard was on night duty, had some jobs to do and that the home of the applicant was in his general direction. Even if that measure of goodwill could be accepted, notwithstanding what the common protocol was, it is exceedingly difficult to understand why it was then thought necessary or desirable to ask the applicant to step from the house and to hold a discussion with him on the outside. That this took place is not denied by the Guard and, in light of the applicant's mother's uncontroverted evidence, could not be. I can only conclude that if the sole purpose of the visit was to return the applicant's property, there would have been no justification for such a conversation. That being so, there must have been and in my view was, some other reason. I am satisfied that the true motive and purpose emerged through the evidence of Mr. Lynch and are reflective of what was said during that conversation. Garda Rowe does not admit, or else denies, that he had any conversation with Mr. Lynch about extradition warrants but goes on to say that if such conversations did take place, the same were purely casual and had no undercurrents to them. He says that any such conversations could not have pre-dated November 2001, because prior to that time he was not in fact aware of such warrants. This I do not accept. I believe that on the occasion last mentioned, which most probably occurred in the 2"`' week in October, he almost certainly referred to an extradition warrant, and in that context either threatened, or at least gave a clear impression to the applicant, that his bail could be revoked and that he could be retaken into custody even that night. I am satisfied from carefully observing the applicant when giving his evidence on this matter that he was genuine in what he said and accurate in his recall. As he seriously disliked jail, this threat was quite meaningful to him and one could still, almost 18 months later, detect that concern. I am therefore of the belief that Garda Rowe is incorrect and wrong when in his evidence he gives November as his first knowledge of these extradition warrants. I am also quite satisfied that his references to them were anything but innocuous and cannot accept his suggestion that Mr. Lynch may have confused the Gardai reference to the bench warrant as a reference to the extradition warrants.

29. It was also admitted by this Guard that he did in fact ask the applicant for his help with those who might have been involved with him in the stolen cheque and also, in a more overall way, that he requested general co-operation in relation to drugs. This totally bears out what the applicant has always said. Whilst the Guard denies that he ever held anything over Mr. Lynch to encourage such help or to extract such co-operation, I am not satisfied that this is so.

Where therefore there is a conflict between the applicant's evidence in the areas above covered and that of Garda Rowe, I have both a preference for and a commitment to accept that of the applicant above that of Garda Rowe.

30. I am also satisfied that between November, 2001, and January, 2002 there were the occasions as described by Mr. Lynch and that on such occasions, in the context of the applicant's further help and assistance still being requested, reference was once more made by Garda Rowe to the existence of the English extradition warrants. Moreover given my general view and assessment of the witnesses in this case, I am equally prepared to accept that after the charges were struck out on the Ist February 2002, the conversation as alleged by Mr. Lynch did in fact take place: see paragraph 20 (e) above.

31. If there was any room for doubt as between the respective evidence of Mr. Lynch and Garda Rowe that doubt, at least for me, was fully removed by the evidence of Mr. Terence Lynch, the applicant's uncle. That man was asked by Mrs. Lynch, the mother of Wayne Patrick Lynch, to go bail for her son in respect of the Kilkenny charge. He therefore attended at Kilkenny District Court sometime in the l" week in October 2001. He was approved of as surety. During the course of that visit, a Guard familiar with the drug charge said to Mr. Terence Lynch "you know there is a warrant from the U.K. for him". "Him" meaning the applicant. I accept this evidence, without hesitation, and accordingly would be highly surprised, as Garda Rowe himself said he would, if a guard dealing with the Kilkenny case knew of the warrants in the first week of October and yet Garda Rowe did not. Secondly, on one remand occasion which was approximately one week after his visit to Kilkenny, Mr. Lynch attended with his nephew at the District Court in Dublin. Outside the court, he met Garda Rowe who said to him that "you're his uncle" and that "he is in a lot of trouble". He continued by stating "but he could help himself if he tries to help us". This he took as a reference to the supply of information by the applicant to the Gardai in relation to drugs. At that meeting Garda Rowe also made reference to the English warrant. Again I firmly believe the evidence of Mr. Lynch. Whilst, of course, he is the applicant's uncle, nevertheless he forcibly struck me as being a person whose only real involvement was going bail for his nephew at his sister's request and that if he could have avoided being in court he would very definitely have done so. There was no exaggeration in what he said, no attempt to embellish his memory and no attempt, (at least which I could detect,) to overstate the position so as to influence the court. I believe that his evidence was within the confines of his memory and in its essence accurate in all respects.

32. In conclusion, therefore, I determine as a matter of fact that the evidence given by the applicant, supported in part by his uncle and peripherally by his mother, as to certain conversations which he had with Garda Rowe, is accurate and that during the course of those conversations, as outlined above, various references were made to the English extradition warrants in the context of requesting from Mr. Lynch his help and co-operation not only with regard to other persons involved in the stolen cheque but also with regard to illegal activity of a general nature in the drug trade. I believe that Mr. Lynch was seriously concerned at the reference to the execution of the warrant and at the threat of the immediate revocation of his bail and that at regular intervals thereafter he was reminded of the continuing existence of the then unexecuted warrant(s). I must conclude as I do that the intention and purpose of these conversations was to encourage and exert pressure on the applicant to furnish the information as requested. This went far beyond normal questioning, proper interrogating, good investigatory or acceptable detective work and seriously trespassed in an area where Detective Garda Rowe had no right to be. A once-off request for information sought in the same breath as a reference to the unexecuted U.K. warrants, would in itself have been objectionable, but the pattern and repeated interventions were in my view wholly unwarranted and unsustainable in law. Such behaviour can only be condemned by this court and that I so do.

As it happens in this case, Mr. Lynch did not supply any information to Garda Rowe and, as is clear from the evidence, he made that decision on the first occasion upon which he was asked and never thereafter, did his will and resolve in this regard alter, whatever was said to him and however it operated upon his mind. Therefore the issue of law in such circumstances is whether by reason of the aforesaid findings this court would be legally justified in refusing his extradition and in directing his immediate release.

33. Before addressing that issue, I would like to make some observations with regard to the two ecstasy tablets which apparently Detective Garda Rowe found on the applicant at the time of his initial arrest on 1" October, 2001. On that occasion it seems that Mr. Lynch tried to flush these tablets down the lavatory but both were recovered by the guard. There was never a suggestion that these two ecstasy tablets were part of a larger quantity or that any third party was immediately involved, or that other circumstances had to be investigated before a decision could be made on whether or not to prosecute Mr. Lynch in respect thereof. Subject to forensic analysis all evidential material was available as and from 1⁵` October, 2001. Given the number of tablets involved, it would have been extraordinary to even contemplate charging the accused with a s. 15 offence. And yet the way in which this incident was dealt with by the guard, and apparently by the DPP, remains difficult to understand.

34. In paragraph 4 of Garda Rowe's affidavit having referred to the charge sheets next mentioned, he states, inter alia, that "During the course of his interview I asked the applicant who gave him the stolen cheque, in response to which the applicant provided a name which I now believe to be false. On that date I also charged the applicant with possession of a small amount of MDNA (ecstasy), contrary to the Misuse of Drugs Act 1977 which charge was ultimately not proceeded with on the directions of the DPP. I beg to refer to copies of the aforesaid charge sheets 'which, pinned together and marked with the letter A "I have signed my name prior to swearing hereof. On that date I found him in possession of a small amount of ecstasy on his arrest."

Exhibit A in fact consisted of charge sheets 1531 and 1532 both of 2001 which, as we know, dealt with the stolen cheque. There was no charge sheet in that exhibit dealing with the possession of ecstasy. Indeed, no charge sheet was ever produced and in my belief no charge sheet ever existed in respect of these tablets. Certainly no summons was ever applied for or issued. Contrary, therefore, to what is stated in this paragraph, I am quite satisfied that Mr. Lynch was never as such charged under section 3 or at all with possession of ecstasy. Moreover, given the minimum quantity involved, it is exceedingly difficult to understand why a decision was apparently made to prosecute the applicant on indictment and not summarily. The possession of such drugs, even if proved, had no natural alignment with the stolen cheque and given the very different proofs required in order to successfully prosecute these separate charges, it remains for me almost inexplicable, as to why the process of indictment was even being considered let alone being positively preferred. Whilst I do not consider it necessary to, and I am not making any finding in this regard, I should, however, record the submission of counsel which is that, in the absence of a charge sheet or summons and given the preferment of indictment, this processing of the ecstasy tablets was part of an attempt to coerce Mr. Lynch into supplying the information as sought. In fairness, Garda Rowe denies this and no suggestion of impropriety has been made against the DPP.

35. As appears from the view which I have come to, on Issue No. 3, (see paragraphs 43 & 44, infra) I believe that a person whose extradition is sought can challenge that request in a legal manner by invoking the 1965 Act and in particular section 50 thereof, and in a constitutional manner by identifying a right of his which would be breached or otherwise which would not be protected if this court should order that person's extradition. Mr. Lynch's challenge under section 50 is hereinafter separately considered but at this point his argument on the constitutional side should be noted. It is firstly that the impugned activity of Garda Rowe constitute an abuse of process and secondly that by reason of certain periods of delay, as identified by him, his constitutional right to a trial with reasonable expedition has been breached. In support of these submissions many authorities were cited including The State (McCormack) v. Curran [1987] I.L.R.M. 225, Trimbole v. Governor of Mountjoy Prison [1985] I.L.R.M. 465, D.P.P. v. Byrne [1994] 2 I.R. 236, B v. D.P.P. [1997] 3 I.R. 140, P. C. v. D.P.P. [1999] 2 IR 25 and B.F. v. D.P.P. [2001] I.R. 656.

36. In my respectful opinion, notwithstanding this court's findings on the interchanges between the applicant and Garda Rowe, I cannot identify any constitutional right of Mr. Lynch which has been infringed by this conduct. If what Garda Rowe did could be said to constitute an inducement it failed. If more accurately it could be described as a threat it likewise failed. This is not a case where as a result of some improper representation, motivated by an impermissible purpose or desire, some admission or confession was made, some goods or property recovered or some other material established or identified. The question of statements being voluntary or involuntary or the application of the judge's rules, or the admission or exclusion of evidence, simply do not arise in relation to either Mr. Lynch or arty third party. This because the applicant did not at any time give to Garda Rowe about himself or any third party the information requested or any information. Therefore the reason, namely to maintain the minimum of essential standards, as given by Griffin J. in People v. Shaw [1982] I.R. 1 at 61 as an additional basis for the court's power to exclude a statement by an accused person though technically voluntary, can have no application here. Whilst the manner and purpose of the Garda's approach was incorrect and improper, nevertheless no consequence adverse to the applicant resulted therefrom.

There could not be said to exist in this case a "decision" like that which was being discussed by Finlay C.J. at p. 237 of The State (McCormack) v. Curran [1987] I.L.R.M. 225, and accordingly the basis upon which a decision of the D.P.P. can be reviewed, can have no relevance to this case. Likewise there is no comparison with regard to Mr. Trimbole, whose constitutional position would have been irretrievably compromised if the Court did not summarily condemn the activities of the Gardai.

The above being so, I cannot see how it can be said that the activity complained of, by itself, can establish or be equated with a breach of a recognised constitutional right of the applicant. Accordingly I am not satisfied that it would be legally justified or otherwise sustainable to halt the process of extradition on this basis.

On the issue of the applicant's right to a trial with reasonable expedition I do not agree, that in such context, the cases above mentioned can solely determine this issue. The nature of extradition arrangements and the implementing legislation must also be considered in this regard. In particular one must look at what the legislature has provided for, in section 50 of the 1965 Act. Accordingly it would be more convenient to deal with this point in the context of the section 50 proceedings.

37. Issue No. 3.

As with all Acts passed after 1937, the extradition code has the presumption of constitutionality attached to it but that presumption "carries with it not only the presumption that the constitutional interpretation or construction is the one intende by the Oireachtas but also that the Oireachtas intended that proceedings,, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from these principles would be restrained and corrected by the courts." See East Donegal Cooperative v. Attorney General [1970] I.R. 317 at 341, and Doyle v. An Taoiseach [1986] ILRM 693. Walsh J., from whose judgment the above quotation is taken, pointed out in McDonald v. Bord na gCon [1965] I.R. 217 that in the context of the Constitution, natural justice has a wider import than simply involving the two well-established principles, namely that no man shall be a judge in his own cause and audi alteram partem. In fact, in such a context, a more appropriate phrase would be constitutional justice rather than natural justice. Once again, in Glover v. BLNLtd. [1973] I.R. 388 Walsh J. said that "the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may effect rights or impose liabilities should be construed as providing for fair procedures." (at p. 425).

These principles were pronounced in a context wholly different from extradition proceedings and therefore were not directly based on that code. Nevertheless these statements have always been regarded as having had general application and certainly in that way would cover the 1965 Act.

38. In the particular context of extradition, McMahon v. Leahy [1984] I.R. 525, was however a case in which the courts had to consider the constitutional position of the applicant whose extradition to Northern Ireland was being sought. In that case, Mr. McMahon and several others had escaped from lawful custody on l 0`h March, 1975, from the Courthouse at Newry whilst awaiting trial on a criminal charge. Some eight years later, the applicant had been arrested in this jurisdiction on fi:)ot of an extradition warrant issued in Northern Ireland. On his s. 50 request for release, the court was faced with the history of what had earlier happened to at least four others who found themselves in an identical situation to that facing Mr. McMa:hon. Apparently all four had been arrested in this jurisdiction on foot of extradition warrants and after orders had been made under s. 47 of the 1965 Act, they sought their respective releases under s. 50. In two cases the respondents, effectively^, being the State, did not oppose the making by the court of orders under s. 50 and on the two other occasions, though the State might have opposed the request, the court also directed the applicants' release again under s. 50. In this, the fifth trial arising out of identical circumstances, the State declared its intention to vigorously oppose the release of Mr. McMahon. The Supreme Court held that this approach was not permissible as it would breach the applicant's right to equality under Article 40 of the Constitution. In other words, if the extradition request was granted, it would have created an inequality between the treatment of Mr. McMahon and the treatment of his fellow escapees, where the circumstances of Mr. McMahon and his fellow escapees were materially indistinguishable.

39. In his judgment, Henchy J. dealt with this point in the context of a submission by the respondent that where none of the statutory grounds for exemption were shown to exist, then the court had no discretion but to order the extradition of the person requested. At p. 541 the learned judge said " I cannot accede to that submission. When a statute authorises the making of a particular order in stated circumstances, proof that such circumstances exist will normally lead to the making of the authorised order. But where - as is the case here - a post constitution-statute authorises the making of an order in stated circumstances, the legislative intent must be held to comprehend that the authorised order will not be made, even though the stated circumstances are shown to exist, if it is shown that the order would necessarily infringe a constitutional right of the party against whom it will operate. The fact that Parliament is debarred by Article 15 s. 4 subs. 1 of the Constitution from enacting "any law which is any respect repugnant to this Constitution or any provision thereof", carries with it not only the normal presumption that laws enacted by the National Parliament are not repugnant to the Constitution but also the presumption that the provisions of such laws will not be administered or applied in a vvay that will infringe constitutional rights. The presumption of constitutionality extends to both the substance and the operation of a statute: it is a presumption that admits of rebuttal only by a contrary intention appearing in the terms of the statute itself.

Therefore, I would reject the submission of counsel for the defendant that where none of the statutory grounds of exemption from extradition is shown to apply, and the statutory requirements for extradition have been otherwise satisfied, a judicial order allowing extradition must necessarily issue. To hold otherwise would be tantamount to saying that the court's function in such circumstances is mechanical, discretionless and without regard to the fact that its order will have a unconstitutional impact on the person to be extradited. Such a conclusion would mean a misinterpretation of the true functions, under the Constitution, of both Parliament and the Courts.."

40. Part III of the 1965 Act was directly in challenge in Shannon v. ftttorney General [1985] I.L.R.M 449. Whilst the facts of that case are not material to the instant proceedings, a passage from the judgment of the Supreme Court at p. 462 is relevant and reads as follows:-

"The presumption is that the Act will not be operated in such a manner as to violate the constitutional rights of those effected by its operation. Thus, if it were shown in a particular case that the provisions of Part III of the Act were being used for the purpose or in a manner inconsistent with such constitutional rights, the courts would be bound to refuse the effect in Part; III."

In Ellis v. O'Dea [1990] I.L.R.M. 87, at 91, Walsh J., extensively dealt with the constitutional issue. He said

"All persons appearing before the Courts of Ireland are entitled to protection against all unfair or unjust procedures or practices. It goes without saying therefore that no person within this jurisdiction may be removed by order of a court or otherwise out of this jurisdiction where these rights must be protected to another jurisdiction if to do so would be to expose him to practices or procedures which if exercised within this State would amount to infringements of his constitutional right to fair and just procedures. The obligation of this State to save its citizens from such procedures extends to all acts done within this jurisdiction and that includes proceedings taken under the Extradition Act 1965. As the Extradition Act 1965 is a post constitutional statute it must be construed as not permitting persons appearing before our courts to be by order of our courts subjected to or exposed to any judicial process or procedures inside or outside this jurisdiction which in this jurisdiction would amount to a denial or an infringement of the constitutional right to fair procedures. Any statute which would expressly seek to do so, or by necessary implication gives rise to such a single interpretation must necessarily be unconstitutional. There is nothing in the Act of 1965 which could be construed as purporting to permit to be exposed any person, the subject of extradition proceedings, to procedures which the Constitution would not tolerate. In other words there must not only be a correspondence of offences but also a correspondence of fair procedures. No procedure to which the extradited person could be exposed must be one which if followed in this State would be condemned as being unconstitutional."

41. Therefore it is quite clear from these cases that even where a person cannot avail of the exemptions contained in section 50 of the 1965 Act (as amended), nevertheless if the making of an extradition order would impact upon or otherwise infringe that person's constitutional rights, including his right to due process and fair procedures, then the courts have jurisdiction to decline to make such an order.

42. A slightly different though related point however, was touched upon and considered by the Supreme Court in Fusco v. O'Dea (No. 2) [1998] 3 LIZ. 470. At p. 490 Hamilton C.J. said "While the High Court is empowered by s. 50 of the Act of 1965 to order the release of a person in respect of whom an order has been made in accordance with the provisions of s. 47 of the Act of 1965, it is only empowered to do so in the circumstances outlined in sub-s. (2) of the said section. In the circumstances of this case, the High Court was only empowered to grant the plaintiff's release if it were of opinion that it would be unjust oppressive or invidious to deliver him up under s. 47 of the Act of 1965 by reason of the lapse of time and other exceptional circumstances and all the circumstances of the case." At p. 508 of the report, Denham J., as part of a passage more extensively recited later in this judgment, ,aid:-

"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 and the legislature has passed the requisite legislation, extradition becomes mandatory subject to the law and the Constitution."

Also in this context, in M.B. v. Assistant Commissioner Conroy [2001] 2 I.L.R.M. 311, Keane CJ at p. 317 of the report, having referred to a section of the passage last quoted from the judgment of Denham J. said,

"she was of the view, with which I respectfully agree, that the use of the adjective "exceptional" reflects the policy of the legislation, i.e. that where extradition or rendition agreements exist between two countries and the legislature has passed the requisite legislation extradition becomes mandatory, subject to the law and the Constitution"

43. From these decisions it can be said that before a person is extradited, both the substance and process must comply with the relevant statutory provisions and must also be compatible with the Constitution, but where both of these requirements are shown to exist, this court must make an order to give effect to the extradition request. On the constitutional side, it would seem difficult to understand why there should be any restriction on the type of right which might be asserted as being in danger in any given case. Article 40 s. 1 was raised in McMahon, supra, whereas Articles 35, 36 and Article 40, s.3 were raised in Sloan, McKee and Magee, supra. It therefore seems to me that there could be no objection in principle to a person invoking other rights in a constitutional challenge to the extradition request, such as the right to a trial with reasonable expedition. Save however for a challenge at this level, I am of the opinion that any other issue, with regard to time, must be dealt with exclusively^, in the context of s. 50 (2) (bbb) of the 1965 Act (as amended). This because the question of time has been specifically covered by a particular statutory provision. Moreover this provision remains highly relevant, even in a constitutional context, though it cannot of course exclude other considerations which may also be material.

44. Finally, it seems to me that when a request cannot be refused, under either the relevant statutory provisions or by reason of some constitutional infirmity, there is no residual discretion within the court, which would permit it, in some undefined and indeterminate circumstances, to refuse to extradite when otherwise it could not so do. Therefore, in my view, and as previously stated at paragraph 35 above, the inquiry on the judicial review side must be whether or not the applicant, on the findings above made, has satisfied this court that some constitutional right of his, has been infringed or that otherwise it would be contrary to law to permit the process to continue. In that context it was in my view permissible for the applicant to argue that his constitutional right to a trial with reasonable expedition had been breached and on that basis that his extradition should not proceed. However subject to that narrow confined point I am satisfied that all other issues raised by him, with regard to the passage of time or delay, must be dealt with in accordance with s. 50 of the Act.

45. The section 47 proceedings.

Sergeant Martin O'Neill, who is attached to the crime branch at Garda Headquarters gave evidence that on 1⁵` October 2002, at 7.30 am he called to 127 Cooley Rd., Drimnagh Dublin 12, where he gained admittance to that dwelling house. He had with him the two extradition warrants above mentioned together with an affidavit and a certificate appropriate to each of these warrants. Having gained entry he produced his Garda identification to a person whom he knew to be 'Wayne Patrick Lynch, the applicant/plaintiff in these proceedings. Having identified himself by name, rank and station, Sergeant O'Neill then asked the applicant "Are you formally of 72 Parkhurst Crescent, Stevenage, Hertfordshire, England." to which lie replied "Yeah". Mr. Lynch was then informed that he was being arrested on foot of two warrants issued in Hertfordshire, England for the offences of assault contrary to ss. 18 and 20 of the Offences Against the Person Act 1861. The warrants, affidavits and certificates above mentioned were then read by the Sergeant to the applicant. The applicant was cautioned that he was not obliged to say anything unless he wished to do so but whatever he said would be taken down in writing and may be given in evidence. There was no reply to this caution. The sergeant then showed Mr. Lynch the original warrants, affidavits and certificates and pointed out to him where each warrant had been endorsed by the third named respondent for execution within this State. True copies of all of this documentation were then furnished to the applicant in person. Mr. Lynch was next asked "Do you know what this is about" to which he replied "It was a stupid place to do it outside my landlady's." The applicant was then taken to Sundrive Rd. Garda Station where he was processed as an arrested person and brought to the High Court where Sergeant O'Neill gave evidence of having executed the aforesaid warrants and of having endorsed the fact of such execution thereon. The originals of all of these documents were then handed into court. In his oral testimony before me, Sergeant O'Neill identified the original of the said warrants, affidavits and certificates and again re-submitted the same into court. This evidence of the arresting Garda was not challenged, by way of cross-examination or otherwise.

46. Mr. Ranna Molloy S.C. however, did question the validity of the s. 47 proceedings by making three submissions in respect thereof. Firstly he alleged that in order to validity arrest the applicant pursuant to the said warrants, Sergeant O'Neill had to have a "reasonable suspicion" that Mr. Lynch was in fact in the premises where the arrest took place, and that since no direct evidence had been given of this suspicion, the resulting arrest was invalid.

The second argument relied upon, centred on the question of reasonable force in the execution of these warrants; it being argued that whilst it was always permissible for an arresting officer, under a general warrant, to use reasonable force, it was never permissible for him to use unreasonable force. It was claimed that there was no evidence before the court as to how Sergeant O'Neill gained entry to No. 127 Cooley Rd. on the morning of 1 s` October and consequently the responden'.s had not discharged the onus which was upon them; this of proving that if force was used it was in the circumstances only reasonable force. The decision of the Supreme Court in Simple Imports ltd. and Anor v. The Revenue Commissioners and Others, [,?000] 2 I.R. 243 and other authorities were referred to in this regard.

And thirdly it was submitted that the affidavits sworn by Richard John Maynard, which were essential supporting documentation in the extradition process, were defective in that the deponent thereof did not declare his age or declare that he was over the age of minority. A passage from the judgment of McCarthy J. in McMahon v. Leahy [1984] I.R. 525 at p. 547 was opened to the court and relied upon as supporting this submission.

47. In my respectful opinion I do not believe that any one of these grounds, is in the circumstances of this case, sustainable. With regard to the first issue it will be recalled that Sergeant O'Neill in his evidence said, that he gained admittance to the house and that having done so, he produced the relevant warrants to a person whom he knew to be Wayne Patrick Lynch. In fact his knowledge in that regard was correct. It is clear beyond question that Mr. Lynch was in the house at that time. It was never suggested to Sergeant O'Neill that he arrived at the premises unaware that the applicant lived thereat or was present therein; or that he had sought to execute the warrant elsewhere. Accordingly in my view, if a "reasonable suspicion" was indeed an essential ingredient of Mr. Lynch's arrest, this court can I believe correctly infer from the surrounding circumstances that the arresting sergeant did in fact have such a suspicion when he attended at no. 127 Cooley Rd on the morning in question. However it may very well be that such a requirement has no relevance to the applicant's position or to his actual arrest. That arrest was affected not in circumstances where no warrant existed or in circumstances where an application had to be made by Sergeant O'Neill to a judicial authority for the issue of such a warrant. The actual arrest was authorised by the warrants as endorsed by Assistant Commissioner O'Toole under section 43 of the 1965 Act. In fact once endorsed, section 45 makes it clear that such warrants "may be executed by any member of an Garda Siochana in any part of the State." Accordingly I strongly doubt whether at the time of the arrest Sergeant O'Neill was required as a matter of law to halve any particular state of mind. I therefore cannot accept this submission.

48. This case of Simple Imports Ltd. supra is wholly distinguishable from the present case. In Simple Imports, two categories of warrants were issue by certain District Judges which in the first instance permitted the Revenue Commissioners to enter premises owned by the applicants in Dublin, Cork and Limerick arid to search for material said to be indecent, obscene or pornographic and if found to seize and remove such material. The second set of warrants purported to authorise the Revenue to search for books or documents relating to transactions in contravention of the laws relating to customs and to seize and remove any such books or documents that might be found on the premises. The first set of such warrants was issued pursuant to s. 205 of the Customs Laws Consolidation Act 1876 and the second set under s. 5 (1) of the Customs and Excise (Miscellaneous Provisions) Act 1988. It is immediately evident from these statutory provisions that an application had be made to the District Court for the issue of such warrants and that the same could only be authorised if certain specified pre-conditions were satisfied. That case therefore turned on both these provisions and these pre-conditions and accordingly cannot in my view be of any direct relevance to the instance case.

49. 1 can find no suggestion founded on evidence, either by way of pri'lmary fact or inference, that any force, much less unreasonable force, was used by Sergeant O'Neill on the morning of 1⁵` October 2002. Secondly this had never been raised previously and thus had never featured as an issue in the case. It is worthwhile to note that an opportunity to cross-examine Sergeant O'Neill on any of the above matters was bypassed, and that though present in court, the applicant himself did not give evidence nor was any called on his behalf. I therefore cannot accept that this alleged infirmity exists in relation to the manner in which the warrants were executed by the said Sergeant O'Neill.

50. And finally, no provision of statute law or principle of case law, was opened to this court as to a minimum age requirement for the swearing of an affidavit or as to the consequences which would or might follow from the omission of a deponent's age in such an affidavit. In any event given his rank and position within the United Kingdom Police Force, a status which has not been challenged, I am entitled to assume as I do that this Detective Constable from the Hertfordshire Constabulary had the legal capacity to swear the affidavits which he did in this case. In the absence of authority therefore, I am not prepared to hold that the omission above mentioned, in each affidavit, was such as to render invalid such affidavits, which in turn could potentially jeopardize the validity of the warrants themselves and certainly could have consequences for the endorsements thereof and the arrest carried out thereunder.

Though not referred to, it seems to me that sections 54 and 55 of the 1965 Act have a relevance to this point. Under section 54 (1) where the Commissioner receives a document appearing to be a warrant issued by a judicial authority together with an affidavit verifying the signature on the warrant and appearing to be sworn before a person duly authorised by law to take such affidavits, then, without further evidence, he may accept the warrant as having been duly signed and authorised by a judicial authority in accordance with the law of the requesting place and as evidence that the offence in the warrant is an offence under the laws of that place and furthermore "that the affidavit has been duly sworn before a person so authorised as aforesaid". Under s. 55 (1) (a), in any proceedings a court, unless it sees good reasons to the contrary, may admit into evidence a warrant where the signature of the issuing person is verified in the manner indicated by s. 54 (1) of the Act, without any further evidence. It seems to me that what was sworn by Detective Constable Maynard were affidavits within which he undoubtedly verifies the signature of the person who issued both warrants and in addition such affidavits appear to have been sworn before a person authorised by the laws of England and Wales to take such affidavits. Accordingly pursuant to s. 54 (1) of the 1965 Act I believe that the Commissioner was justified in acting upon the documentation as he did, and secondly that unless this court sees good reason to the contrary it should admit into evidence such warrants as hailing been duly signed and issued by a judicial authority in accordance with the said laws of England and Wales. Seeing no good reason to the contrary, I would therefore admit into evidence such warrants without the requirement of any further or additional evidence in respect thereof. See Gillespie v. Attorney General [1976] I.R. 233 where the Supreme Court discusses the effect and implications of both sections 54 and 55 of the aforesaid Act.

Nor do I believe that the relevant passage from the judgment of McCarthy J. in McMahon v. Leahy (supra), is of any assistance to the applicant in this regard. The observations of the learned trial judge were responsive to patent errors of a wholly different character from those which it is suggested exist in this case. See pages 546/547 of the report. I would therefore reject this submission made on behalf of Mr. Lynch.

51. Subject to the provisions of Part III of the Extradition Act 1965, as amended, this court must be satisfied, prior to making any order under s. 47 thereof, that the warrants, affidavits and other documentation as prescribed by the Act are valid, that the person named or described in the extradition warrants is one and the same person as is before the court and thirdly that the offences specified in the said warrant(s) correspond with offence(s) under the laws of this State which are indictable offences or offences punishable on summary conviction by imprisonment for a maximum period of at least six months. See The State (Holmes) v. Furlong 1967 I.R. 210.

As appears from the paragraph immediately proceeding I am satisfied that both "Warrant A" and "Warrant B" are valid as I am in respect of the affidavits sworn by Detective Constable Maynard. Equally so with regard to the certificates of Moira Chen, an assistant clerk to the Justices for the Hertfordshire Commission area in respect of which, in any event there is no challenge. In addition I believe that the steps taken and procedures followed by Sergeant O'Neill, at the time of the applicant's arrest, fully discharged the constitutional requirements of fairness and fair procedure which were placed upon him. See The State (McFadden) v. Tae Governor of Mountjoy Prison (No. 1) [1981] I.L.R.M 113. Accordingly I am satisfied that the relevant documentation as required by the aforesaid statutory provisions is valid and is in compliance with the requirements thereof. There is no issue and never has been but that the person named and described in each warrant is one and the same person as Wayne Patrick Lynch the applicant/plaintiff in these proceedings.

On the dual criminality requirement, it would appear, that by virtue of s. 31 of, and the Schedule to the Non-Fatal Offences Against the Person Act 1997, ss. 16 to 26 of the Offences Against the Person Act 1861 have been repealed in this jurisdiction, and accordingly when one is considering this question of correspondence and gravity, one must evidently look at offences which exist independently of these repealed provisions. It has been submitted on behalf of the respondents, without argument, that the offences specified in "Warrant A" and in "Warrant B" correspond respectively with offences created by s. 4 and ss. 3 and 4 of the said Act of 1997. Section 3 creates the offence of assault causing harm and provides, on summary conviction, for a term of imprisonment not exceeding 12 months or for a fine not exceeding £1,500 or both, and on indictment for a fine or for imprisonment for a term not exceeding five years or both. Section 4 is the more substantial offence of causing serious harm and on conviction on indictment specifies, as a penalty, a fine or life imprisonment or both. Being prepared to accept this submission, it follows that the offences specified in both warrants correspond with offences in this jurisdiction which are indictable offences or on summary conviction are punishable by imprisonment for a maximum period of at least six months.

In conclusion therefore I am satisfied that all of the relevant statutory requirements have been established and that as a result, in the exercise of the jurisdiction conferred by the 1965 Act, I should make an order, in respect of Mr. Lynch, under said s. 47 thereof, as amended. In the absence of any contrary submission and subject to the section 50 outcome, the point of departure will be that as specified in the said order.

52. The section 50 proceedings.

As is evident from this section as amended, the High Court, when hearing an application thereunder, can issue a direction for the release of an applicant in any of the circumstances specified in sub-s. (2) thereof. This sub-section has five paragraphs dealing with different circumstances, any one of which if proved to exist, can justify the release of a person arrested on foot of an extradition warrant. In this case the only paragraph of sub-s. (2) relied upon, is that of "(bbb)", which was inserted into the section by an amendment created in 1987. There is no suggestion grounded upon evidence or submission that any of the other exceptions apply to the circumstances of Mr. Lynch. Accordingly in the context of s. 50 application, one must consider this subparagraph only.

53. In Kwok Ming Wan v. Conroy [1998] 3 I.R. 527, Hamilton C.J., in dealing with s. 50 (2) (bbb) of the 1965 Act, (as amended) said at p. 532 of the re!port: "Before the High Court can direct the release of a person arrested under the Act of 1965 (as amended) it must form the opinion that by reason of the lapse of time since the commission of the offence specified in the warrant or the conviction of the person named or described therein of that offence and other exceptional circumstances, it would having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under s. 47 of the Act of 1965 as amended. There are, by virtue of the terms of the said sub-section, three factors which must be taken into account by the trial judge in the formation of his opinion that it would be unjust, oppressive or invidious to deliver up the person arrested, viz.

(i) lapse of time,

(ii) other exceptional circumstances, and

(iii) all the circumstances of the case."

The Chief Justice also pointed out, in following Ellis v. O'Dea (No. 2) [1991] 1 I.R. 251 at 259, that the onus of proof, and the burden of proof on the civil side, were on an applicant to come within the aforesaid paragraph, and secondly that the period in respect of which lapse of time had to be considered ended at the date of the High Court's hearing into a person's claim for his release and discharge.

54. In the earlier case of Fusco v. O'Dea (No. 2) [1998] 3 I.R. 470 at 508 Denham J. commented upon the phase "other exceptional circumstances" as contained in the paragraph and in respect thereof said:- "The section requires that in addition to the lapse of time that there be "other exceptional circumstances" such as to unable the exemption to apply. It is for the plaintiff to prove that the exemption applies on the balance of probabilities. This 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 and the legislature has passed the requisite legislation, extradition becomes mandatory subject to the law and to the Constitution."

55. Further statements of principle dealing with paragraph (bbb) are also to be found in M.B. v. Assistant Commissioner Conroy [2001] 2 ILRM 311., where Keane C.J. at p. 316 of the report said:

"While it was not so expressly decided in that case, it seems clear, and indeed was not seriously disputed on behalf of the plaintiff in the present case, that the expression "lapse of time ... and other exceptional circumstances" is to be read conjunctively. It follows that it is not sufficient for a plaintiff whose extradition would be otherwise justified to show that a significant period of time has elapsed since the commission of the offence referred to in the warrant or his conviction: he must also satisfy the High Court that there are other exceptional circumstances which would render it unjust, oppressive or invidious to allow the extradition to proceed."

The Chief Justice then continued by referring to parts of the recited passage from the judgment of Denham J. above quoted, and in the manner set out at paragraph 42 above expressed his own view thereon. See also the decision of the Supreme Court in McNally v. O'Toole, Unreported, Supreme Court 9th May, 2002.

56. For the purposes of this part of the case therefore it seems to me that the plaintiff must prove on the balance of probability that his particular circumstances come within paragraph (bbb) of sub-s. (2) of s. 50, and in attempting to do so he must satisfy the court that the relevant time span comes within the phrase "lapse of time" as used and understood, in that paragraph. It is only if this inquiry is answered in the affirmative that one must then go on and consider whether in addition there are "other exceptional circumstances." If both of these factors are found to exist then the court has to consider whether in all of the circumstances it would be unjust, oppressive or invidious to deliver Mr. Lynch under an order made pursuant to s. 47 of the 1965 Act.

57. Before setting out my views on this matter could I make one further comment on the paragraph in question. It seems quite clear from its wording that the commencement date, for the purposes of considering the phrase "lapse of time", is either the commission of the offence specified in the warrant, or if the individual in question has proceeded to trial, the conviction date of that person on those charges. The section however is silent as to the "date up to" which that period is to be computed. Two main time events have been considered in this regard. The first is the date upon which court proceedings have been issued which challenge the extradition, with the second being the date upon which this court firstly commences to embark upon the hearing of such challenge. In most cases, it is I think fair to say that the latter date has been preferred but in at least one, M.B. v. Assistant Commissioner Conroy (Supra), where the difference between the respective dates was almost three years, the earlier date was chosen. Given the view which I have come to in the instant case, it is unnecessary in my opinion to further consider this point as whichever of the relevant events are adopted the conclusion arrived at is the same.

58. It will be recalled that the date of the commission of the offences alleged against the applicant is 15 `h October, 2000, and that the extradition warrants were executed on 1" October, 2002. The judicial review proceedings were commenced with a successful application for leave being moved on 2nd December, 2002, and the special summons was issued on 4^thDecember of that year. The first occasion upo which the applicant was in this court for the purposes of resisting his extradition, being the commencement of the judicial review proceedings, was Oh February, 2003. Accordingly a period of just under two years and two months elapsed prior to the institution of the relevant proceedings and a period of just under two years and four months before a commencement of the plaintiff's challenge in this court. In that time frame the first inquiry of this court, as previously stated, is whether the same is sufficient to constitute "lapse of time" within paragraph (bbb) of sub-s. (2) of s. 50, as amended.

59. In this context several cases were opened, with the first in point of time being Hanlon v. Fleming [1981] I.R. 489. In that case the time span extended between March 1972 and November 1974 and between April 1975 and October 1980. Despite these periods the Supreme Court came to the conclusion that this delay or lapse of time did not afford to the applicant any ground to resist his extradition to the U.K. That case however was heard and determined at a time when the 1965 Act did "not recognise delay as a ground for refusing extradition. For the courts in this State to recognise delay as such a ground, it would be necessary to read into the statute something that has been omitted, presumably, on purpose. Therefore I would reject this ground of appeal." See the judgment of Henchy J. at p. 494. In other words it predated the amendment which inserted paragraph (bbb) into s. 50. As did Harte v. Fanning and Anor. [1988] I.L.R.M p. 70. Therefore in my view these and other cases decided under the pre 1987 extradition regime, cannot be relied upon as governing the issue of time, given the creation of the subsequent express statutory exemption in paragraph (bbb).

60. In Fusco v. O'Dea (2) [1998] 3 I.R. 470, the offences in question where committed in February and May 1980, with the plaintiff's conviction being recorded on 12th June, 1981. The s. 50 proceedings did not issue until 1992, which of course meant that at least a decade had passed irrespective as to what concluding date one might take. It was not difficult in those circumstances, as one might imagine, for both the High Court and Supreme Court to accept that this time frame came within the phrase "lapse of time" in paragraph (bbb).

A period of at least eight years and perhaps longer expired in the case of Kwok Ming Wan, supra, a period of at least that, if not greater in McNally's case supra, with the period of years in Long v. O'Toole [2001] I.R. 548 being just under seven. With these time frames, no court, at first instance or on appeal, had any difficult in coming to the conclusion that these periods triggered the mechanism of paragraph (bbb) and therefore went on to embark upon the second and third phases of operating that paragraph.

The shortest period which has been identified, from the case law open to this court, occurred in M.B. v. Assistant Commissioner Conroy [2001] 2 I.L.R.M. where the period, in accordance with the judgment of Keane C.J., was from December 1992 to 9th April, 1996. This amounts to three years and four months. In no other case was a shorter period accepted by the court as invoking the relevant paragraph.

61. As can be seen most of the cases above mentioned, demonstrate the existence of very long periods with the shortest time span being three years and four months. In this case, even if one takes the latest possible event for the purposes of computing dates, the time span involved is still only two years and four months (approximately) and thus falls short of the period in M.B. v. Assistant Commissioner Conroy, supra, by almost one year. In these circumstances I do not believe that this court would be justified in treating that period as being sufficient for the purposes of coming within the phrase "lapse of time" in paragraph (bbb) of s. 50 (2) of the Act. It seems to me that given the special category in which extradition is in, and the sui generis nature of proceedings thereunder, I could not recognise this period as being sufficient to trigger the further operation of the paragraph in question. That being so, in my view it is unnecessary to consider what might otherwise amount to "other exceptional circumstances" in this case, and neither of course is it necessary to consider all of the circumstances and then decide whether the delivery up of the applicant would be unjust, oppressive, or invidious.

62. The Supreme Court's decision in Heywood v. Member in Charge Bridewell Garda Station Unreported, 15 `h day of February 2002, was referred to by the applicant and the following passage relied upon as supporting the submission that the time period in this case was sufficient to come within the said paragraph (bbb). At p. 6 of the report Keane C.J. said

"That of course, simply reflects the policy of the Act that the extradition procedure, save where it is necessarily suspended to give effect to the various procedures envisaged under section 48 of the Act, is an immediate one. That did not happen in this case. I have no doubt that that was the basis on which Mr. Justice O'Neill must have proceeded, that the extradition order had not been swiftly and properly implemented by the State and that, accordingly, when the matter came before him, there was no justification for the continued detention of the applicant..."

The facts of that case are quite different from those which apply to Mr. Lynch. As of 31⁵` May, 1999, a previously made order of the District Court, directing the applicant's extradition under section 47 became immediately operative and accordingly the only appropriate procedure thereafter was for Mr. Heywood to be extradited on foot of that order. That did not happen because of and in the circumstances outlined in the said judgment. It is sufficient to say that by February 2002 the applicant had still not been extradited and accordingly, for the reasons therein stated, the Supreme Court held that he could not, as of that time, be delivered up on foot of the order so made by the District Court on 5t" May 1999.

In addition in my view the decision of Cunningham v. Governor of Mounjtoy Prison [1987] I.L.R.M. 33 turned on its own facts, a situation expressly acknowledged by Egan J. at p. 35 of the report. I therefore don't believe that either Maynard or Cunningham can be of assistance to the applicant in this case.

63. Given my view that the period in this case is not sufficient to come within paragraph (bbb) of subsection (2) of section 50 of the 1065 Act, it follows in my opinion that the applicant cannot rely upon this as constituting a sufficient basis to argue that his right to a trial with reasonable expedition has been breached. If however that view, per se, is incorrect, then it would be necessary to consider, inter alia, the reasons for the two year period between October 2000 and October 2002, and where the responsibility lies for such a period. There is no doubt but that the applicant's failure to stay in England and answer the charges preferred against him, explains at least part of that delay. When so considered it seems to me that a period of one year for the making of the extradition request could not be considered excessive. Secondly I note the reason advanced by Sergeant O'Neill as to why the warrants were not executed immediately on their receipt in this jurisdiction; which were that the applicant was before our domestic courts on separate and unrelated criminal charges. In addition of course, when the DPP finally made a decision in this case, the warrants were executed with reasonable dispatch. Accordingly in these, circumstances, without further inquiry, I could not accept the submission that the applicant's constitutional right to a trial with reasonable expedition has been breached.

64. In conclusion I refuse the relief sought in both the judicial review and the section 50 proceedings and confirm the order made under section 47.