High Court of Ireland Decisions

 


THE HIGH COURT

Record Number: 1176/03 SS.\2003 8 EXT

IN THE MATTER OF ARTICLE 40.4 OF THE CONSTITUTION

AND IN THE MATTER OF THE HABEAS CORPUS (IRELAND) ACT, 1782

BETWEEN:

Charles Ashley Nicholson

Applicant

And

The Governor of Cloverhill Prison

Respondent

(Note: [*#] denotes the start of a new page of the transcript)

Judgment of Mr Justice Michael Peart delivered the 29^th day of July 2003

This is an application for Habeas Corpus in respect of the applicant, who is held in Cloverhill Prison pending determination of an application for his extradition to England by the Attorney General, pursuant to the provisions of Section 47 of the Extradition Act, 1965 ( "the 1965 Act").

[*2]

Before dealing with the submissions of Counsel for the applicant and the respondent, I should set out some brief background history to this application for Habeas Corpus.

On the 12^th March 2003 the applicant was arrested by Sgt. Martin O'Neill of An Garda Siochana on foot of an Extradition Warrant dated 10^th December 2002 issued by Christopher Leslie Pratt, a District Magistrate for the Inner London Commission Area assigned to the South Westminster Petty Sessional Division, England. This Warrant indicates that the applicant stood trial in the Crown Court at Derby, England for an offence of furnishing a false document within that jurisdiction, namely a Value Added Tax Return with intent to deceive, in that it stated that an amount of £100,835 was repayable in respect of VAT paid by Torrance Whittier Group Ltd where no such amount was due, and contrary to Section 72(3)(a) of the Value Added Tax Act 1994.

This warrant also states that on the 24^th September 2002, the fifth day of the said trial for the said offence, the applicant failed to surrender as required to the custody of the Crown Court at Derby, and that he was convicted in his absence on the 26^th September 2002 for the said offence. It also states that on that date also the applicant was sentenced in his absence for the said offence to a term of four and a half years, and that it was on that date further ordered that he should serve an additional 365 days for breach of an early release licence imposed by Wolverhampton Crown Court on 18^th April 2000 and Stafford Crown Court on 29^th September 2000.

Following his arrest on 12^th March 2003 in this jurisdiction, the applicant was brought before the High Court pursuant to the provisions of section 45(2) of the 1965 Act, as amended by section 4(1)(b) of the Extradition (European Union Conventions) Act, 1994, and was remanded in custody. The matter was remanded from time to time, but on an application by the Attorney General for an order under section 47 of the 1965 Act for an extradition order, the applicant in these proceedings raised a preliminary issue for determination, namely that since these matters are now dealt with in the High Court following the passing into law of the 2001 Act, the Rules of the Superior Courts apply, and that since, in the applicant's submission, the section 47 application is a "proceeding", [*3] Order 1 of the said Rules require that a Summons be issued, and that the Attorney General could not make the application for an extradition order without such an originating summons having been issued.

Up to this point no application for bail had been made on his behalf, and he remained in custody.

I decided the preliminary issue on 27^th May 2003 against the applicant. He has, as he is entitled to do, appealed my decision to the Supreme Court. As far as I am aware no decision has yet been delivered by the Supreme Court. Following my decision, the applicant was further remanded in custody since the application by the Attorney General cannot proceed until the decision of the Supreme Court is delivered on the preliminary issue raised by the applicant.

Shortly after my said decision, an application for bail was made to me for the first time by the applicant. Bail was refused, and accordingly the applicant remains in custody.

I should add that the wife of the applicant was also arrested on 12^th March 2003 on a warrant relating to the same facts I have outlined in respect of the applicant. She was granted bail by me on essentially humanitarian grounds given that she was at a fairly advanced stage of her pregnancy, and also that the applicant and his wife had arrived in this country with their two small children, who would have to be taken into care if neither parent was at liberty to look after them. Mrs Ashley Nicholson is still on bail pending the determination of the application for an order under section 47 of the 1965 Act. She too sought to have the same preliminary issue determined as to the requirement of an originating summons, and has appealed my decision to the Supreme Court, as is her entitlement.

On the 8^th July 2003 I remanded the applicant once more in custody to Cloverhill Prison until 22^nd July 2003. On 9^th July 2003, Counsel for the applicant applied for and was granted by me a conditional order of Habeas Corpus returnable for 10^th July 2003 at 2pm. [*4] On that occasion, the applicant was produced to the Court by the respondent to these proceedings, and the Chief State Solicitor issued a Certificate dated 10^th July 2003 to which is attached a Schedule of the same date signed by Charles Smith, Assistant Governor, in which it is stated that the applicant is held in custody in Cloverhill Prison pursuant to Committal warrant dated 8^th July 2003, which is the warrant signed by me on 8^th July 2003 when I remanded him to the 22^nd July 2003 and to which I have just referred.

Mr Humphries BL on behalf of the applicant submits that the onus is on the State to justify the lawfulness of the applicant's detention, and that this onus is discharged only when matters are properly proved. He submits that the question of the correspondence of offences in England with similar offences in this jurisdiction can arise in different situations, such as on an application under section 47 of the 1965 Act, or section 50 thereof. He submits that it can equally arise on an application for Habeas Corpus, which has been described judicially as a flexible and informal procedure for determining the legality of a person's detention. In addition to that question of correspondence arising in relation to the VAT offences with which the applicant was charged and convicted in England, there is also in his submission no offence charged in respect of the imposition of an additional sentence of 365 days imposed for breach of the early release licences referred to in the warrant on foot of which the applicant was arrested on 12^th March 2003.

Mr Humphries submits that under section 42(2) and section 50(2)(c) of the 1965 Act the offences must be specified in the warrant on foot of which the applicant is arrested, and that there must be material before the court to satisfy the requirement of correspondence, and that under section 42 of that Act, there is correspondence if the act constituting the offence so specified would, if done in the State on the day the warrant is produced, constitute an offence in this State.

He makes the point that the affidavit of Sgt. Martin O'Neill already referred to does not state the date on which the warrant was received by the Commissioner of An Garda Siochana, and that accordingly it is not possible to say that the offence charged is one [*5] which corresponds to an offence in this State on the date on which the warrant was produced to the Commissioner of An Garda Siochana, and that this means that the requirements for correspondence set forth in section 42(2)(a) cannot be satisfied.

Mr Humphries has also submitted that the Attorney General has so far failed to specify the offence in this jurisdiction to which the offence contained in the warrant corresponds, and that the applicant's solicitor has written to the Chief State Solicitor dated 7^th July 2003 (two days prior to the application to this court for the conditional order of Habeas Corpus) and has as of the 10^th July 2003 received no reply. He accepts that in respect of the conviction for four and a half years an offence is specified but that in respect of the additional term of 365 days no offence has been specified in the warrant. This means in his submission that if the applicant is returned to England, he will serve the four and a half years, plus another 365 days, but that the latter is not referred to in the body of page 1 of the warrant, and that on an application under Article 40 of the Constitution each and every offence must be examined.

Mr Humphries also points out that the Certificate accompanying the warrant on foot of which the applicant was arrested refers only to the VAT offence and makes no mention of the offence for which the applicant will serve an additional 365 days. He also states that given the provisions of sections 54 and 55 of the 1965 Act, the Certificate cannot be a proper certificate since it refers only to the VAT offence.

The applicant's solicitor has also written to the Prison Service in London enquiring whether the applicant will receive credit for the time served in detention in Ireland, but as of the date of this application, this was not surprising since the letter referred to was dated 7^th July 2003. However, the same information had for some reason been sought from the Irish Authorities, but not surprisingly, the Chief State Solicitor has responded in April 2003 that this was a matter for the UK authorities. Mr Humphries submits that the lack of information with regard to the question as to whether the applicant would receive credit for time served in detention in this jurisdiction is oppressive for the applicant.

[*6]

With regard to the Certificate from the assistant Governor of Cloverhill certifying that the applicant is detained pursuant to an order of this court dated 8^th July 2003, Mr Humphries states that this is not an affidavit, that it is simply a Notice, and that Mr Smith could not be cross-examined on it. He submits that this is a failure in the proofs, and furthermore that the Assistant Governor should sign the certificate only in the explained absence of the Governor. In relation to the necessity of strict compliance with formalities and technicalities in matters relating to the question of the lawfulness of a person's detention, the court was referred to the passage of the judgment of the late Mr Justice McCarthy in McMahon v. Leahy (1984) I.R. 525 at 547 where he stated:

"………for my part, where the liberty of any person, be he a citizen of this State or otherwise, is concerned, where valid arrest is fundamental to the validity of the proceedings, where sweeping powers are given to the police forces of two adjoining jurisdictions, I am not prepared to overlook the careless approach and lack of attention to detail to which I have referred………Narrow though this approach may appear to be, the insistence on strict compliance with all the requirements of the exercise of statutory powers is a fundamental feature of our jurisprudence; it is the duty of the superior courts to exercise the vigilance necessary to ensure such compliance."

I was also referred to The State (Furlong) v. Kelly (1971) I.R. 132 in relation to the necessity of strict compliance with technicalities in these matters. In fact, Mr Smith was in court, and in view of Mr Humphries submission regarding cross-examination and in view of the flexible and informal nature of habeas corpus applications, I permitted Counsel for the respondent to call Mr Smith to give evidence of the basis of the applicant's detention, and Mr Humphries had an opportunity of cross-examining him. Nothing of significance emerged from this evidence.

In response to these submissions, Mr O'Higgins BL for the respondent submitted that on a return to a conditional order of Habeas Corpus it was necessary to show that the detention was lawful, and also that even if there is a defect in his detention, it must be a defect of a fundamental nature, and in this regard he referred to the decision of Miss. [*7] Justice Laffoy in Walsh v. The Governor of Limerick prison, unreported, 31^st July 1996. In that judgment, the learned judge referred to the judgment of the late O'Higgins CJ in The State(McDonagh) v. Frawley (1978) I.R. 131 at 136, where he stated:

"The stipulation in Article 40, Section 4 of the Constitution that a citizen may not be deprived of his liberty save 'in accordance with law' does not mean that a convicted person must be released on habeas corpus merely because some defect or illegality attaches to his detention. The phrase means that there must be such a default of fundamental requirements that the detention may be said to be wanting in due process of law. For habeas corpus, therefore, it is insufficient for the prisoner to show that there has been a legal error or impropriety, or even that jurisdiction has been inadvertently exceeded."

Counsel for the respondent submitted that in this case there was nothing alleged as defective in the order of this Court on foot of which the applicant is held in detention. That order had not been appealed by the applicant. He submitted that there was no defect of jurisdiction ex facie on the order. He submitted that in effect the applicant was raising section 47 arguments in habeas corpus proceedings and that this was not appropriate. Pending the hearing of the section 47 application, Mr O'Higgins submitted that there was no obligation on the State to give an indication of what offence in this jurisdiction the offence for which the applicant was convicted in England corresponds, until that application is being heard. Notwithstanding that submission, he indicated that the offence would be said to correspond to an offence under sections 1078 and 1079 of the Taxes Consolidation Act, 1997.

Regarding the applicant's submission that there was a failure in the warrant on foot of which the applicant was arrested to specify in sufficient detail the offences alleged, particularly in relation to the additional 365 days detention for breach of early release licence, Mr O'Higgins submitted that such matters were not relevant to this application for habeas corpus, which challenged the legality of the detention of the applicant, and that the detention itself has nothing to do with sufficiency of the contents of the warrant itself. [*8] He submitted that the 365 days detention was irrelevant to anything this court has to decide, and that the detention is underpinned only by the remand of the applicant when he was brought before the court on 12^th March 2003 having been arrested on foot of the warrant. In any event, Mr O'Higgins submitted that on the section 47 application,even if the court was not satisfied as to the sufficiency of the specification of the 365 days detention, the court could still order the return of the applicant for the VAT offence. Therefore he submitted that the question over the 365 days detention was irrelevant to the question before the court.

Mr O'Higgins also submitted that the question of whether the applicant would get credit in England, if he is returned there, for the time served in custody in this jurisdiction, is a matter entirely for the English authorities, and irrelevant to this consideration of a habeas corpus application, and that nothing in that regard could go towards the legality of the applicant's detention.

Regarding the submission by the applicant that he was unaware of the date on which the warrant was produced to the Commissioner of An Garda Siochana, and that therefore it was not possible to ascertain whether the offence charged was an offence on that date of production of the warrant, Mr O'Higgins submits that this again is a matter, if it arrises at all, which is for debate on any hearing of the section 47 application. No failure to provide the information now could be relevant to a Habeas Corpus application.

Conclusions:

I set out the general background to this application at the commencement of my judgment. As I outlined, the applicant took a preliminary procedural point and this awaits the outcome of an appeal to the Supreme Court. The applicant applied for bail following my decision against him on the procedure issue, and I refused bail.

[*9]

The applicant seeks to rely on arguments, which would normally be arguments against the making of an order for extradition under section 47 of the 1965 Act, to support his submission that his detention is unlawful. It is a fact that the section 47 application cannot proceed at the present time due to the preliminary issue taken by the applicant. He was of course perfectly entitled to raise that issue. But it has resulted in his continued detention in this jurisdiction, since bail was refused. The present application, if successful, would have the effect of circumventing the application for an order under section 47. That of itself is not a reason why this application should not succeed if indeed the detention of the applicant is unlawful.

The fact is that on the 12^th March 2003, the court was satisfied that the applicant was properly before the court. He was brought before the court, as soon as may be, following his arrest by Sgt O'Neill on that date, and on foot of a warrant which was produced to the court. Identification evidence was received and accepted. At that point in the process, there is no necessity for the State to show correspondence. Section 43(1) provides that where a warrant has been issued by a judicial authority in a place to which Part 111 of the act applies for the arrest of a person accused or convicted of an offence under the law of that place, being an indictable offence, or an offence punishable on summary conviction by imprisonment for a maximum period of six months, and on production of the warrant to the Commissioner of the Garda Siochana it appears to him that the person named in the warrant may be found in the State or may intend to enter the State, the Commissioner shall endorse the warrant for execution.

Section 45 of the 1965 Act provides that a warrant duly endorsed under section 43 may be executed by any member of An Garda Siochana, and that the person named or described in the warrant, shall on arrest, be brought as soon as may be, before the High Court.

Section 47 provides that where a person named or described in a warrant is before the High Court, that Court shall make an order for his delivery into the custody of a member of the Police Force of the place in which the warrant was issued, for conveyance to that [*10] place, and remand him until so delivered. Subsection 2 of section 47 provides that such an order shall not be made 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. Where the court does not make the order under section 47, the court is obliged to order the discharge of the person under section 47(3).

The procedure for the arrest and extradition of a person such as the applicant is intended to be a simple procedure. The legislation has provided what is intended to be a speedy but fair procedure whereby a person wanted for trial or to serve a sentence in the neighbouring jurisdiction may be returned to that jurisdiction provided the requirements of the legislation have been complied with, particularly regarding minimum gravity and correspondence, and of course identification of the person wanted as the person who has been arrested and is before the court.

In this case, the applicant was duly arrested and brought before the court as soon as may be, as required under section 45(2) of the 1965 Act. At that point the Court is mandated to make the order under section 47 unless correspondence is not made out. The court can of course, prior to the making of the order, adjourn the matter from time to time to enable the applicant to obtain legal advice, or so that information can be furnished to the person as may be required, or for any other reason which to the court is justified in the interests of justice. Any such adjournment naturally involves the remanding of the person to any such adjourned date, either in custody or on bail as the case may be. Any unreasonable delay by the State authorities in processing of the person could result in the discharge of the person. His detention in the face of unreasonable or unexplained delay in the bringing of the application for an order under section 47 could in certain circumstances render the continued detention of the person unlawful, and the court would be obliged to intervene.

Such a situation does not arise in the present case. The court has in effect been prevented from embarking upon its consideration of the making of an order under section 47, because of the preliminary point raised as to procedure by the applicant. But since the [*11] applicant was brought before the court on the 12^th March 2003 which was the date of his arrest, he was then properly before the court, and the court was entitled to remand him to another date so that the making of an order under section 47 could be considered. His detention at that time was lawful, and his remand subsequently from time to time has been lawful, and this includes the remand on the 8^th July 2003 to the 22^nd July 2003, which is the subject of the present application.

The detention of the applicant is dependent only on compliance with the procedures provided in sections 42, 43, 44, 45, 46 and 47 of the 1965 Act, as amended. Once there is such compliance, this court has jurisdiction to make the order, or to further remand the person, and this jurisdiction then endures for as long as is reasonably required to complete the process leading to an order under section 47(1) or indeed an order for the discharge of the person under section 47(3).

In my view, once these requirements have been met, the detention of the applicant is lawful, it occurring under an order of the court having jurisdiction to make that order. That jurisdiction is not at this point in time dependent upon the court being satisfied as to matters which arise for consideration by the court when deciding to make or to refuse to make an order under section 47. Those matters do not go to the lawfulness of detention. If they did, it would mean that on the first occasion on which a person was brought before the court having been arrested under section 45(1) of the 1965 Act, the court would have to determine the question of correspondence before remanding the person in custody, or even on bail, if the circumstances merited same.

It follows that on each occasion on which the applicant has been remanded to another date in custody, the jurisdiction of the court to make such an order derives from the compliance with the requirements of the sections to which I have referred, and not from any consideration of the contents of the warrant itself (save that the minimum gravity requirement must be satisfied, and this is usually done, as in the present case, by the furnishing of a certificate in that regard), or the question of correspondence of the offence set forth therein.

[*12]

Neither is the lawfulness of the detention of the applicant invalidated by any delay in the provision of information sought by the applicant as to whether he will be given credit for the time spent in custody in this State, should he be returned to the UK, or as to what offence in this jurisdiction the offence for which he was convicted in his absence in England corresponds.

In relation to the latter, I could contemplate a situation where any unexplained unwarranted or unreasonable delay in the provision of such information could give rise to an illegality of detention based on considerations of constitutional justice, i.e. a right to an expeditious hearing, but that does not arise in the present case. Any delay that has occurred in the hearing of the application for the order under section 47 cannot be laid at the door of the Attorney General. The applicant has chosen to adopt a course which he is perfectly entitled to adopt, but it has resulted in the delay of the matter. That delay is not the basis of the habeas corpus application, but nonetheless that application was not brought at any time prior to my decision against the preliminary point raised by the applicant. If his detention is to be regarded as unlawful now, it follows that it must also have been unlawful on the 12^th March 2003 and thereafter. The issues canvassed in this application are not issues relevant to the lawfulness of the applicant's detention for the reasons I have stated, but of course remain live issues for consideration on the eventual consideration of making an order under section 47, and nothing I have said in this judgment must be taken in any way to have expressed any view thereon.

I refuse the application for an order of habeas corpus.