1. I have read the judgment which will be delivered by Denham J. in this case. I agree entirely with the reasoning and the conclusions reached in the judgment and the order which she proposes.

2. I would also like, however, specifically to endorse her observation that the length of time taken to process this case through the High Court and this court is entirely inappropriate and that procedures for the case management of proceedings of this nature should be adopted in the superior courts. Given the [*2] nature of these cases, it is of critical importance that, while all the requirements of justice are met, they should be disposed in an expeditious manner as is reasonably practicable.

3. This is an appeal by Cornelius Stanton, the plaintiff/appellant, hereinafter referred to as the plaintiff; from the judgment and order of the High Court (O’Donovan J.) delivered on 7th day of December, 1999. The plaintiff has sought his release pursuant to s.50 Extradition Act, 1965, as amended. The plaintiff is the subject of proceedings seeking his extradition to Scotland on foot of a warrant for his arrest and order made in relation thereto by District

4. Judge Collins on 2nd November, 1998. The plaintiff was arrested on foot of the said warrant on 22nd June, 1998 and remains in custody.

5. On 24th day of September, 1993 the plaintiff was arrested by an inspector of the

6. Strathclyde Police Force in Scotland. On 28th day of September, 1993 he appeared before [*2] Glasgow Sheriff Court and was remanded in custody charged with an offence. On 5th day of October, 1993, the plaintiff reappeared before the Glasgow Sheriff Court and was granted bail in respect of the said offence subject to conditions, which included that he attend for trial. The plaintiff failed to attend at Glasgow High Court on the 15th day of August, 1994 whereupon a warrant for his arrest was issued. The warrant was not executed as the whereabouts of the plaintiff was not ascertained by the Strathclyde Police Force until about December, 1996. At that time the Police Force obtained information that the plaintiff may have a fixed address in Cork. The information concerning the plaintiff’s whereabouts was communicated to the Procurator Fiscal in Glasgow in December, 1996. He in turn was instructed by the Crown Office in Edinburgh to establish whether after the lengthy passage of time there was still sufficient evidence available on which to prosecute the plaintiff. The Procurator Fiscal at Glasgow made further enquiries of the relevant witnesses and Crown Counsel’s instructions were obtained to the effect that an attempt should be made to bring the plaintiff back from Ireland to Scotland. The warrant which had issued on 15th day of August, 1994, was retrieved and, having sought to establish what the appropriate procedure was in relation to rendition from Ireland, a new warrant for the apprehension of the plaintiff was issued on 13th day of May, 1998, from the High Court of Justiciary, Parliament House, Edinburgh, Scotland.

7. The warrant was endorsed by the defendant Patrick O’Toole, Assistant Commissioner of An Garda Siochana, on 19th day of June, 1998, and executed on 22nd day of June, 1998 in the County of Cork. The plaintiff was brought before the District Court in the Dublin Metropolitan District on the 2nd day of November, 1998, on foot of the said warrant. The District Court Judge ordered the delivery of the plaintiff into the custody of a member of the [*3] Strathclyde Police, Glasgow for conveyance to the High Court of Justiciary, Parliament House, Edinburgh, Scotland.

8. The plaintiff appealed the order. In the High Court two questions arose as to the validity of the order of the District Court. First, it was argued that the offence as set out in the warrant dated 13th day of May, 1998, does not correspond with an indictable offence known to the law of this State and that the decision of the learned District judge to that effect was wrong and therefore her jurisdiction to make the order did not exist. Secondly, it was submitted on behalf of the plaintiff that, as there had been a lapse of over six years since his initial arrest and, because of the significant delay of the authorities, it would be unjust, oppressive and invidious to deliver him up under the provisions of section 47 of the Extradition Act, 1965, having regard to the provisions of section 50(2)(bbb) of the Extradition Act of 1965 as inserted by section 2(l)(b) of the Extradition (Amendment) Act, 1987. On these two issues - correspondence and delay - the learned High Court judge held against the plaintiff. He dismissed the proceedings and allowed the extradition ordered by the District Court on 2nd day of November, 1998, to proceed. However, the learned High Court judge held that the order for delivery should recite that the corresponding offence was rape contrary to section 4 of the Criminal Law (Rape) Act, 1990. Both of these matters were argued in the Supreme Court and are in issue.

9. Mr. Feichín McDonagh, S.C., counsel for the plaintiff; presented written and oral submissions. He argued that the warrant submitted to support the application cannot be relied upon as it was not in the same terms as the original warrant but was drawn up to reflect the needs of the Irish Authorities rather than the practice of the Scottish Courts. It was submitted [*4] that there is good reason not to accept the documentation in light of the evidence of Inspector Henry Campbell that it was completely in conflict with the usual practice of the Scottish Court. Extensive references to case law were made on this and the next issue. The next issue argued by counsel was correspondence. It was submitted that there was no corresponding offence. That neither the offence identified by the District Court nor by the High Court was a corresponding offence. That the offence set out in the warrant does not meet the legal requirements. In fact, it was argued that the issue of correspondence and the presumptions contained in the Extradition Act (as they related to Inspector Campbell’s affidavit) were interrelated. It was queried as to how it came about that the plaintiff’s rendition is sought in respect of “an indictable offence” which appears to allege matters which counsel submitted could form the ingredients of fourteen separate offences in this jurisdiction. Counsel answered his query by reference to the affidavit of Inspector Campbell, paragraph 17, and argued that the documentation was void on its face.

10. Further it was submitted that there had been such significant delay as to bring the plaintiff within the statute. It was accepted that the defence only arises if exceptional circumstances exist and, further, if the Court takes the view that it would be unjust, oppressive or invidious to deliver the plaintiff It was submitted that in light of the facts of the instant case and in particular: (a) the absence of any real explanation for the delay involved in commencing extradition proceedings; (b) the approach of the Scottish authorities to their own procedure; and (c) the two years the plaintiff has spent in custody in this jurisdiction awaiting the outcome of these proceedings; that exceptional circumstances do exist such as would warrant the exercise by the Court of the discretion contained in s.50(2)(bbb) of the Extradition Act, 1965, as amended. [*5] Mr. Diarmaid McGuinness, S.C., submitted that none of the conditions of s.50(2)(bbb) have been met. Further, that there was no good reason why the District Court or the High Court might not have acted on the Scottish warrant. He submitted that at issue is the corresponding offence of rape. That the warrant describes acts of the plaintiff engaged in a single transaction, he gave effect to his intention to rape. In that single transaction there were multiple actions. Counsel submitted that the facts are set out on the warrant and that they correspond to the offence of rape.

11. The relevant statutory law is to be found in the Extradition Act, 1965, as amended. At issue in this case is the rendition of the plaintiff to Scotland. Consequently, Part Ill of the Extradition Act, 1965, applies. Relevant sections are:

12. Section 43, subsection 1:

13. Section 50(2)(bbb) of the Act of 1965 (as amended) provides that the court may direct the release of a plaintiff if:

14. Counsel for the plaintiff submitted that the court should not accept the documents grounding the application for the rendition of the plaintiff because of paragraph 17 of the affidavit of Henry Campbell, Inspector, Strathclyde Police. That paragraph sets out:

15. Counsel for the plaintiff submitted that the court should not accept the warrant being as it was completely in conflict with usual practice in Scotland. However, it is clear that rather than presenting a bald warrant to the Irish Authorities the Scottish warrant was drawn up setting out particulars of the offence alleged. The accompanying certificate states that it is an indictable offence. In the circumstances it is reasonable to assume that the additional particulars on the warrant were added as a result of a request of the Scottish Authorities to the Irish Authorities as to procedures. Even if this case does not exhibit best practice it is not contrary to the Extradition Act The documents are valid on their face. Consequently, it was correct for the Garda authority to endorse the warrant. Further, in the court proceedings, no Scottish law was proved to query their validity. Indeed, the evidence relied upon was that of Inspector Campbell of Scotland. I am satisfied that there is no good reason to hold that the documents are invalid.

16. The next issue for the court is whether the offence is a corresponding offence. This case raises for decision a specific type of rendition. The relevant law is to be found in Part III of the Extradition Act, 1965, as amended. It is a backing of warrants scheme as set out in statutes. The legislation provides that where a warrant has been issued by a judicial authority in a place in relation to which Part III applies for the arrest of a person accused of an [*9] indictable offence, on production of the warrant to the Commissioner of the Garda Siochana to whom it appears that the person named or described may be found in the State, the Commissioner shall endorse the warrant for execution. In this case a warrant was issued by a judicial authority in Scotland, to which Part III applies, for the arrest of the plaintiff, who was in Ireland.

17. An order shall not be made for the rendition of a person 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: section 47(2) Extradition Act, 1965. The certificate filed with the backed warrant states that the offence specified in the warrant dated 13th May, 1998, is by the law of Scotland an indictable offence and punishable by imprisonment for a maximum period of at least six months and that it will not be prosecuted summarily.

18. The issue is whether there is a corresponding offence in this State. The warrant in issue recites that the plaintiff has been indicted for the offence of:

19. The District judge held that the offence specified in the warrant corresponds with an offence under the law of the State which is an indictable offence, namely, section 2 of the [*10] Criminal Law (Rape) Act, 1981, as amended. On appeal, in the High Court, the learned High Court judge held:

20. Thus, the offences identified by the District Court and the High Court are different. One is to be found in s.2 of the Criminal Law (Rape) Act, 1981, and the other in the Crimina1 Law (Rape) (Amendment) Act, 1990.

21. This Court on this appeal may determine the corresponding offence. The Court is not bound either by the offence identified as the corresponding offence by the District Court or the offence identified as the corresponding offence by the High Court. This Court may substitute its own view of the corresponding offence.

22. The Court must look at the factual elements of the offence to see if they would constitute an offence in Ireland. The particulars set out in the warrant are full and graphic. An ‘algebraic’ approach to the analysis of the factual element of offences has been taken previously by this Court. Thus, in State (Furlong) v. Kelly [1971] I.R. 132 at p.141 O’Dalaigh, C.J., stated:

23. “The basic inquiry is to discover whether the several ingredients which constitute the offence specified in the warrant, or one or more of such ingredients, constitute an offence under the law of the State and, if they do, whether that offence (the “corresponding offence”) is an indictable offence or, if not, whether it is punishable on’ summary conviction by imprisonment for a maximum period of at least six months. As to the first limb of the inquiry, the position may be illustrated algebraically as follows. If the English offence consists of, say, four essential elements a+b+c+d, then a corresponding Irish offence exists only if it contains either precisely these same four essential elements or a lesser number thereof. lf the only Irish offence that can be pointed to has an additional essential ingredient (that is to say, if the Irish offence may be defined as a+b+c+d+e), then there is no corresponding Irish offence to satisfy the requirements of s.47, sub-s. 2, of the Act of 1965 for the simple reason that, ex hypothesi, conduct a+b+c+d falls short of being an offence under Irish law or, in plainer words, is not an offence. It is fundamental to extradition that no one shall be extradited for acts or omissions (the offence alleged in the warrant) which, if repeated within the State, would not offend against our law.”

24. In the warrant seeking the plaintiff there are words setting out particulars which conclude with the words “and rape her”. It is certified that it is an indictable offence. Thus, it describes the acts of the plaintiff as a single alleged transaction. It is a context of facts set out leading to the words “and rape her”.

25. It is not sufficient to use the name by which the crime is known. Thus, it would not be sufficient to recite merely that the plaintiff did rape her. As stated in Wyatt v. McLoughlin [1974] I.R. 378 by Walsh, J., at p.398:

26. In this case the requesting jurisdiction sought to set out the factual elements of the offence as charged in the warrant. The question is whether the factual elements as set out in the warrant would constitute particulars of an offence in Ireland. It can be any offence covered by the Extradition Acts. This was described in Wilson v. Sheehan [1979] I.R. 423 at p.427 by Henchy J:

27. In addition, the ordinary meaning should be given to the words. In Wilson v. Sheehan Henchy J. pointed out at p.428-9:

28. The warrant in question in that case had alleged that the plaintiff on a named date at a named place in England:

29. Henchy J. held, at p.430:

30. The word “rape” is used in the warrant. The ordinary meaning of the word “rape” is forcible sexual intercourse with a woman without her freely given consent. It is a common and freely used word which has this commonly understood meaning.

31. Taking all the case law, the requirement to look at the constituents of the offence, the importance of the facts, the ordinary meaning of the words, the most relevant precedent is found in Harris v. Wren [1984] I.L.R.M. 120.

32. In this case the warrant sets out particulars and uses the word “rape”. Neither the absence of consent by the victim nor the state of knowledge of the plaintiff are specifically addressed, as they would be on an indictment in Ireland. The plaintiff has laid great stress on the fact that the particulars do not specifically recite that the events took place without the [*15] consent of the victim or otherwise deal with the issue of consent. An analogous argument was made in Harris v. Wren . In that case the backed warrant sought the arrest of the plaintiff for a charge:

33. Of the issue of “consent” raised in that case Finlay P. held at pp.121-2:

34. The case was appealed to the Supreme Court and dismissed in an ex tempore judgment which upheld Finlay P.

35. The fact that there are many possible offences in the particulars does not invalidate the warrant. The certificate refers to an indictable offence. Clearly, whilst other offences could have been alleged in this case one alone is being prosecuted. As the documents refer to ‘an offence’ it is appropriate to assume that the plaintiff will be prosecuted for the one offence alleged and certified. There is no issue of speciality argued in this case.

36. The conditions required by s.50(2)(bbb) of the Extradition Act, 1965, as amended, to raise a case for the plaintiff have not been met. The delay, in proceeding with the trial in Scotland, has arisen because the plaintiff breached conditions of bail and fled. The delay has arisen because of the plaintiff’s actions. Once he was located in Ireland it was entirely proper for the authorities in Scotland to take steps to establish that after the lengthy passage of time there was still sufficient evidence available on which to prosecute the plaintiff. It was [*17] entirely appropriate that the Procurator Fiscal at Glasgow made enquiries of the relevant witness and that Crown Counsel’s instructions were obtained. There are no exceptional circumstances within the meaning of section 50(2)(bbb). The plaintiff put no relevant evidence before the court as to his whereabouts after he fled his trial. This case is very different to the facts as established in Fusco v. O’Dea [1998] 3 I.R. 470 and Wan v. Conroy [1998] 3 I.R. 527. There is no evidence or circumstance put forward by the plaintiff which would establish that it would be unjust, oppressive or invidious to deliver him up.

37. Consequently, this ground of appeal must fail.

38. However, I would like once again to request that extradition cases are fast tracked in the High Court and Supreme Court. This requires solicitors, counsel and the courts to case manage extradition cases accordingly. The length of time it has taken to process this case through the Superior Courts is entirely inappropriate.

39. I would dismiss the appeal, for the reasons stated. I would affirm the District Court Order for Delivery, including its recitation that the corresponding offence is rape, contrary to section 2 of the Criminal Law (Rape) Act, 1981, as amended.