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McNally v. O'Toole [2002] IESC 37 (9th May, 2002)

THE SUPREME COURT

No 58/01

Denham J.

McGuinness J.

Geoghegan J.

In the Matter of Section 50 of the Extradition Acts, 1965 to 1994

BETWEEN

John McNally

Plaintiff/Appellant

and

Patrick O'Toole

Defendant/Respondent

JUDGMENT of Mrs Justice McGuinness delivered on the 9th day of May 2002. [Nem Diss.]

1. This is an appeal against the judgment and order of Finnegan J. (as he then was), made on the 14th November, 2001, whereby he refused the Plaintiff/Appellant's claim for an order directing his release pursuant to Section 50 of the Extradition Act, 1965 (as amended).

2. Section 50 of the Extradition Act, 1965, as amended by the Extradition (European Convention on the Suppression of Terrorism) Act, 1987 Section 9 and the Extradition (Amendment) Act, 1987, Section 2(1)(b) provides as follows:

"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) the offence to which the warrant relates is

(i) a political offence or an offence connected with a political offence, or

(ii) an offence under military law which is not an offence under ordinary criminal law, or

(iii) a revenue offence.

(b) There are substantial reasons for believing that the person named or described in the warrant will, if removed from the State under this part, be prosecuted or detained for a political offence or an offence connected with a political offence or an offence under military which is not an offence under ordinary criminal law, or

(bb) There are substantial grounds for believing that the warrant was in fact issued for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinion or that his position would be prejudiced for any of these reasons, or

(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 Section 47, or

(c) 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. While a number of other issues were raised in the pleadings, the Plaintiff/Appellant both in the High Court and on appeal in this Court relied solely on sub-section 2(bbb) of Section 50.

The Facts

4. The Plaintiff is a native of Belfast and his family lives in the Andersonstown area. His extradition to Northern Ireland is sought in respect of an offence of robbery in which it is alleged he took part in Belfast on the 6th January 1989. He was arrested on that day and was subsequently admitted to bail. His arraignment hearing was fixed for 8th September 1989. He failed to attend at that hearing and absconded. It appears that the RUC believed at the time that he had fled to the European Continent. The Appellant in his evidence in the High Court stated that he had come to this jurisdiction in or about May 1989. Since that date he has resided openly in the Dublin area. From January 1990 (four months after he had failed to answer his bail) the Appellant was in receipt of unemployment assistance from the local Social Welfare office in Ballymun. Apart from one period from December 1990 to August 1992 when he worked for a cousin on a casual basis the Plaintiff continued to draw unemployment assistance over the ten year period from 1989 to 1999 in the Dublin area. This is established by evidence from the Department of Social Welfare.

5. In 1992 a Garda Superintendent called to the Plaintiff’s home in order to gather information as to the whereabouts of the Plaintiff’s brother. There were other occasions on which the Gardai called to his house and they were well aware of his whereabouts and residence. In 1995 the Plaintiff married and he and his wife have one child. His wife is employed and the Plaintiff cares for their child on a full-time basis. The Plaintiff and his wife have purchased a house and have taken on a mortgage. In evidence the Plaintiff stated that if he were not resident in the home his wife would have to give up work to look after the child and would as a consequence be unable to maintain the mortgage. On 29th January 1998 the Plaintiff attended the funeral of his mother in Andersonstown, Belfast. This does not appear to have come to the notice of the RUC.

6. From 1989 to 1996 it appears that the Northern Ireland police authorities made no enquiries as to whether the Appellant was in this jurisdiction. In October 1996 a review of warrants was carried out in the course of the reorganisation of the Belfast Regional Crime Squad. This review was neither periodic nor Northern Ireland wide. Through this review information in regard to the Plaintiff’s whereabouts came to light. It is not entirely clear by what exact means the RUC discovered that Mr McNally was in this jurisdiction. However, it was not until the 25th March 1998 that a warrant seeking his extradition was issued by Her Majesty’s Crown Court in Northern Ireland. This warrant alleged that on the 6th day of January 1989 the Plaintiff robbed a Paul Doran of £1,160 and that he had not appeared for his arraignment on the 8th September 1989.

7. On the 30th April 1998 the Appellant was arrested in Dublin on foot of that warrant. He was subsequently admitted to bail. On 17th June 1999 an order was made by the District Court directing that he be delivered into the custody of a member of the Royal Ulster Constabulary pursuant to Section 47(1) of the Extradition Act 1965 (as substituted by Section 12 of the Extradition (Amendment) Act 1994). On the same day, 17th June 1999 the Plaintiff instituted the present proceedings in the High Court by Special Summons. The matter was heard before Finnegan J. (as he then was). Affidavit evidence was opened and both the Appellant and Detective Chief Inspector Robert Lee of the RUC were cross-examined on their affidavits. This Court has been provided with Counsels’ agreed note of the oral evidence given on cross-examination.

8. The learned High Court judge delivered his reserved judgment on the 14th November 2001 and made an order refusing the relief sought and directing the Plaintiff’s extradition to Northern Ireland. From that judgment and order the Plaintiff has appealed. The grounds of appeal as set out in the Plaintiff’s notice of appeal dated the 2nd day of March 2001 are as follows:-

“1. That by reason of the lapse of time since the commission of the offence specified in the warrants and other exceptional circumstances it would having regard to all the circumstances be unjust, oppressive or invidious to deliver him up under Section 47.

2. The learned trial judge erred in law in applying the principles relevant to delay in extradition matters.

3. That the learned High Court judge misdirected himself in law and upon the evidence and upon the weight and balance of the evidence in finding:-

‘(a) that there was no unreasonable delay on the part of the Northern Ireland authorities in seeking the extradition of the Plaintiff

(b) that the failure of the Northern Ireland authorities to make any enquiries of the authorities in the Republic of Ireland between 1989 and 1996 was not unreasonable.

(c) in finding that the personal circumstances of the Plaintiff was (sic) such as not to make it invidious, unjust or oppressive to extradite him.”

The judgment of the High Court

9. The learned High Court judge made findings of fact on the evidence before him, as reflected in the above summary of facts. He then went on to draw inferences from these facts in the context of Section 50(2)(bbb) of the Act of 1965 as amended. He firstly considered the lapse of time between the commission of the offence on 18th January 1989 and the hearing of the application before him. At page 4 of his judgment he stated:-

“Detective Chief Inspector Lee was cross-examined and in evidence said that the Royal Ulster Constabulary had no reason prior to October 1996 to believe that the Plaintiff was in this jurisdiction. He agreed, however, that it was reasonable to suspect that the Applicant could be in this jurisdiction prior to October 1996 but that enquiries as to whether or not the Plaintiff was in this jurisdiction had not been made. A review of outstanding warrants was carried out in October 1996 and at that time it was ascertained that the Plaintiff was living in the Republic of Ireland.”

10. Having also reviewed the Plaintiff’s evidence the learned trial judge went on to say (at page 5 of his judgment):-

“Further on 19th January 1998 the Plaintiff attended his mother’s funeral in Northern Ireland and the Northern Ireland authorities could reasonably have checked for his attendance at the funeral and had they done so could have arrested him. Taking all these circumstances into account I am nonetheless satisfied having regard to the Northern Ireland authorities’ belief that the Plaintiff had gone to Europe, that the failure to make enquiries in this jurisdiction was not unreasonable....In the circumstances of this case the lapse of time was not such as to encourage in the Plaintiff a reasonable belief that his extradition would not be sought. When it was ascertained in October 1996 that the Plaintiff was living in the Republic of Ireland consideration of his extradition commenced, a warrant being obtained on 25th March 1998, that is within a period of seventeen months.”

11. The learned trial judge laid considerable emphasis on the Plaintiff’s own part in causing the lapse of time. He stated that he must “have regard to the extent to which that lapse of time has been caused or contributed to by the conduct of the Plaintiff” (page 6). He referred to the case of Kwok Ming Wan v Conroy [1998] 3 IR 527, to which I shall refer later in this judgment. He concluded (at page 7):-

“I find that the lapse of time in seeking the Plaintiff’s extradition up to October 1996 was due to his failing to answer to his bail and thereafter fleeing Northern Ireland and not to any default on the part of the Northern Ireland authority. The lapse of time thereafter is not of itself so great as to render the Plaintiff’s extradition unjust, oppressive or invidious.”

12. Later in his judgment he again referred to the fact that the “proximate cause” of the lapse of time was the Plaintiff’s failure to answer to his bail on 8th September 1989 and his flight from Northern Ireland.

13. The learned trial judge went on to consider the “exceptional circumstances” which the Plaintiff had put forward as bringing him within the terms of sub-section (2)(bbb). These were the facts that he had lived openly in this jurisdiction, that he had been in employment and also in receipt of social welfare for a long period, and that he had been in contact with the Gardai on a number of occasions. He had also married, had a child, and purchased a home. Finnegan J. also noted that the ability of the couple to fund the mortgage of this house depended on the Plaintiff’s being available as a full-time carer for their child.

14. He compared these circumstances with what had been held by this Court to be “exceptional circumstances” in Kwok Ming Wan v Conroy and to what had been held to be “exceptional circumstances” by McCracken J. in the High Court in Burke v Conroy (unreported) 5th March 1999. Finnegan J. held that the Plaintiff’s circumstances were not of themselves exceptional. The Plaintiff, he said, “has not satisfied me that the foregoing circumstances reflect a belief on his part that by reason of the lapse of time his extradition would be no longer sought. To seek social welfare, to marry and have a child, and to assist in the purchase of a residence and by one’s efforts to contribute towards the mortgage repayments thereon would not of themselves be exceptional.”

15. The learned judge concluded (at page 9):-

“The evidence before me does not show that the steps relied upon by the Plaintiff were taken other than in the ordinary course of life and without reliance upon any belief that he would not be extradited. I find that they are not exceptional circumstances.”

16. In the last section of his judgment the learned trial judge appears to go on to consider whether having regard to all the circumstances it would be unjust, oppressive or invidious that the Plaintiff should be extradited. Strictly speaking, once he had concluded that the Plaintiff’s circumstances were not exceptional it was unnecessary to go on to consider the wider question. He refused the relief sought by the Plaintiff.

Submissions of Counsel

17. Counsel for both the Plaintiff and the Defendant relied in the main on three decisions of this Court which dealt with the interpretation of Section 50(2)(bbb) of the Act of 1965 (as amended) - Fusco v O’Dea [1998] 3 IR 470, Kwok Ming Wan v Conroy [1998] 3 IR 527 and M.B. v Conroy [2001] 2 ILRM 311 .

18. Senior Counsel for the Defendant/Respondent, Mr Charleton, accepted that the lapse of time since the commission of the offence in January 1989 was sufficiently long to bring the matter within the scope of sub-section (2)(bbb). It was accepted by both parties that the sub-section must be read conjunctively; exceptional circumstances were required in addition to the lapse of time.

19. Senior Counsel for the Plaintiff, Mr Birmingham, submitted that the learned trial judge had laid too great an emphasis on the Plaintiff’s own actions as being the cause of the lapse of time. While it was, of course, the case that the Plaintiff had absconded from Northern Ireland while on bail, similar or parallel circumstances applied in a very large number of extradition cases and in a number of these the person whose extradition was sought had escaped or absconded after conviction, if anything an even more serious situation. In the Kwok Ming Wan case the Plaintiff had absconded during the course of his trial and had subsequently being convicted. In the M.B. case the Plaintiff had been convicted and absconded between conviction and sentence. In both cases this Court had accepted that a lapse of time sufficient to bring the case within the sub-section had occurred.

20. Mr Birmingham also submitted that the police authorities had apparently made little or no effort to trace the Plaintiff. They apparently believed that he had gone to Continental Europe, but there was no evidence that they had made contact with Interpol or sought information from police authorities in other European countries. They did not appear to know whether or not he possessed a passport. No enquiries were made in this jurisdiction for a period of seven years, even though Chief Inspector Lee admitted that it was reasonable to suspect that the Plaintiff would be here. After the RUC had, more or less by chance, discovered that the Plaintiff was living openly in Dublin in 1996, a period of seventeen months was allowed to elapse before a warrant for his extradition was issued. Counsel laid particular stress on this second period of delay. Coming as it did on top of a stale investigation, he argued, it was extraordinary that immediate action was not taken once Mr McNally’s whereabouts had been discovered. This Court had held that dilatoriness on the part of the authorities seeking extradition was in itself an “exceptional circumstance” and this was surely so in the instant case.

21. Mr Birmingham went on to compare the Plaintiff’s circumstances with those of the Plaintiff in the Kwok Ming Wan case. Mr McNally was living openly; he was in constant contact with the Social Welfare authorities; he had been in contact with the Gardai, who were well aware of his whereabouts; he had married, founded a family and purchased with his wife a family home. The trial judge had held that these circumstances were a normal way of life and not exceptional. Mr Birmingham drew attention to the view of Barron J. as expressed in Kwok Ming Wan where (at page 540) the learned judge stated:-

“For circumstances to be exceptional, it seems to me that they must be the exception rather than the norm. In the present case the Plaintiff, unlike the norm for fugitives from justice, lived openly in Dublin, was known to the Garda authorities and obtained a passport in his name from the United Kingdom authorities through the Embassy of that country in this jurisdiction. In my view those circumstances are sufficiently exceptional to justify the Court in considering all the circumstances for the purpose of determining whether it would be unjust, oppressive or invidious to deliver up the Plaintiff under the provisions of Section 47.”

22. While Mr McNally had not sought a British passport, he had been in constant contact with the public authorities, who were able to produce complete and incontrovertible evidence of his social welfare records over a period of ten years. Such behaviour was not the norm for fugitives from justice.

23. Senior Counsel for the Defendant/Respondent, Mr Charleton accepted that dilatoriness on part of the police authorities could be held to be an “exceptional circumstance” under the sub-section. However, the RUC, as found by the learned trail judge, believed that the Plaintiff had gone to Europe. The Plaintiff himself had apparently said in his evidence in the District Court that he went to Europe, although he subsequently stated that this evidence was incorrect. In the circumstances the RUC had no particular reason to seek him in this jurisdiction.

24. As far as the other “exceptional circumstances” were concerned, the position of the Plaintiff was not similar to that of the Plaintiff in the Kwok Ming Wan case. In that case the Plaintiff had built up a business in addition to founding a family. He had also been in direct contact with the British authorities and had obtained a renewal of his British passport. In the M.B. case the principal exceptional circumstance on which the Court relied was the severe deterioration in the Plaintiff’s health.

25. Mr Charleton referred to the judgment of Hamilton C.J. in the Kwok Ming Wan case at page 533 where the learned Chief Justice had referred to the speech of Lord Diplock in Kakis v Republic of Cyprus [1978] 1 WLR 779 at page 783, where he stated:-

“Delay in the commencement or conduct of extradition proceedings which was brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them.”

26. In the same way in the instant case, Mr Charleton argued, the learned trial judge had drawn attention to the Plaintiff’s own contribution to the delay. He submitted that in all the circumstances the trial judge did not err in his decision.

The Law

27. Section 50 sub-section(2)(bbb) of the Act of 1965 (as amended) has been considered and interpreted by this Court in three cases in recent years. In these cases certain principles have been established from which may be derived the test to be applied in deciding whether the Plaintiff in the instant case comes within the terms of the sub-section.

28. The first of these cases was Fusco v O’Dea (No. 2) [1998] 3 IR 470 . In that case the Plaintiff was tried for certain offences including murder before the Crown Court in Northern Ireland. On the 10th June 1981, whilst in custody awaiting judgment, the Plaintiff escaped from prison in Belfast. A few days later the Crown Court found the Plaintiff guilty of the offences and sentenced him to terms of imprisonment. On 18th January 1982, the Plaintiff was arrested in this State. Pursuant to the provisions of the Criminal Law (Jurisdiction) Act 1976 he was tried before the Special Criminal Court and convicted of offences relating to the escape and sentenced to terms of imprisonment. He was due to be released from prison on 16th December 1991. On 11th December 1991 he was taken by prison officers to Dublin where he was arrested by a member of the Garda Siochana on foot of five warrants issued under the provisions of the Extradition Act 1965. These warrants were for the arrest of the Plaintiff in respect of the convictions and sentences imposed on him by the Crown Court in Northern Ireland. Upon arrest he was immediately brought before the District Court and the normal procedures under the Act of 1965 followed.

29. By Special Summons the Plaintiff sought his release pursuant to the provisions of Section 50 of the Extradition Act 1955. A number of grounds, including “political offence exemption” grounds were pleaded. The grounds included that the Court should direct his release under Section 50(2)(bbb).

30. It was held by the High Court (Geoghegan J.) that the Plaintiff should be released. As set out in the headnote the learned trial judge held that the circumstances whereby the conduct of the Northern Ireland authorities could reasonably have indicated to the Plaintiff that he was not in jeopardy of extradition and the family circumstances of the Plaintiff were “other exceptional circumstances” which, combined with the long lapse of time, rendered it unjust, oppressive and invidious to accede to the application for the extradition.

31. The Defendant appealed and in allowing the appeal this Court held, inter alia , that, in reviewing the decision of the trial judge, the Court was entitled and indeed bound to draw its own inferences from the primary facts and to form an independent opinion on the matter of injustice oppression or invidiousness while giving due weight to the conclusion of the trial judge. The Court also held that, whilst the change in the circumstances of the Plaintiff’s family was a factor to be taken into account in determining whether it would be unjust, oppressive or invidious to deliver up the Plaintiff pursuant to the provisions of the Act of 1965, it had to be considered in the light of the seriousness of the offences for which the Plaintiff had been convicted and sentenced.

32. It will be seen that the circumstances of the Plaintiff in the Fusco case are very different from the circumstances of the Plaintiff in the instant case and, indeed, from the circumstances of the Plaintiffs in the other two cases. A very considerable proportion of the judgment in Fusco are devoted to the consideration of the definition of “political offences” and to an analysis of the actions of the Northern Ireland authorities in deciding in 1981 to prosecute Mr Fusco in Ireland on the escape offences and not to proceed with extradition on the murder and other offences, and that this might have given rise to a belief in the Plaintiff that he would not be extradited after his term of imprisonment in Portlaoise.

33. In her judgment Denham J. stated (at page 508):-

“The section requires that in addition to the lapse of time that there be ‘other exceptional circumstances’ such to enable the exemption to apply. It is for the Plaintiff to prove that the exemption applies on the balance of probabilities.”

34. She went on to analyse nine specific circumstances which had been considered by the learned High Court judge, together with three other specific circumstances. Of these it appears to me that only the family circumstances, the seriousness of the offences, and the fact that the Plaintiff's own conduct contributed to the circumstances, e.g. his two attempts at escape from custody, appear to be of general relevance to the present case.

35. As far as the family circumstances were concerned in Fusco, the only information given was that the Plaintiff in that case had moved his family from Northern Ireland to this jurisdiction. No further details appear to be given. Both Hamilton C.J. and Denham J. held that this circumstances was not in itself an “exceptional circumstance” .

36. The second case on which Counsel relied was Kwok Ming Wan v Conroy [1998] 3 IR 527 . This was a case with no political connections and none of the complications which arose in the Fusco case. In the Kwok Ming Wan case the Plaintiff was tried in London in September 1987 for a criminal offence. During his trial he absconded and came to this jurisdiction. On 23rd September 1987 he was convicted and sentenced in his absence to four years imprisonment. An extradition warrant was issued in the United Kingdom on the 15th June 1995. From the time of his arrival in this country in 1987 to his arrest on foot of the extradition warrant in September 1995 the Plaintiff had lived and worked openly under his own name. He had on a number of occasions been subjected to checks by the Aliens Registration Office which was aware that he was living and working in Dublin. He started a business in October 1994. He married in 1990 and had three children. In 1995 the Plaintiff and his wife bought a house. In 1990 a request was made by the United Kingdom authorities as to whether the Plaintiff was in this jurisdiction and they were told that he did not appear to be so.

37. In 1993 the Plaintiff obtained a fresh British passport through the British Embassy in Dublin. He was identified by a Constable of the United Kingdom police force in November 1994 and arising from this the extradition warrant was issued.

38. The High Court ordered the Plaintiff’s release pursuant to Section 50(2)(bbb). The Defendant appealed.

39. This Court dismissed the appeal. Since it appears to me that this is the case which is most relevant in the instant case, both as to the facts and as to the law, it seems to me helpful to set out the decision as summarised in the headnote in full:-

“1. That the three factors which must be taken into account by a trial judge in the formation of his opinion that it would be unjust, oppressive or invidious to deliver up the person arrested were, the lapse of time, other exceptional circumstances and all the circumstances of the case.

2. That it must be established that exceptional circumstances existed before the court was entitled to have regard to all the circumstances in determining whether it would be unjust, oppressive or invidious to deliver up the Plaintiff under the Act of 1965. Per Barron J.: Section 50 of the Act of 1965, as amended, required that the lapse of time between the conviction and the arrest must be exceptional and that, in addition there must be other exceptional circumstances before the Court could consider all the circumstances as a whole.

3. That it is the function of the Supreme Court on the appeal to form its own opinion as to whether the primary facts as established in the evidence constituted ‘exceptional circumstances’ within the meaning of the Act of 1965 and also on the matter of injustice, oppression or invidiousness.

4. For such purposes, the relevant time period was the period between the date of the Plaintiff absconding and the date of the hearing of his application to the High Court. Per Barron J.: the delay of over eight years was exceptional.

5. That the question of responsibility for the delay was one which may have a direct bearing on the issues of injustice and oppression and the delay between a Plaintiff’s conviction and the application to the High Court was contributed to by a certain dilatoriness on the part of the authorities in applying for the Plaintiff’s extradition. Per Barron J.: the apparent failure of the authorities to make early enquiries in this jurisdiction and to follow them up resulted in the delay in finding the Plaintiff and that this in itself was a factor in favour of the Plaintiff.

6. That the changes in the family circumstances of the Plaintiff were circumstances to be taken into account in determining whether it would be unjust, oppressive or invidious to deliver up the Plaintiff pursuant to the Act of 1965 but only when considering ‘all the circumstances’. They did not amount to ‘exceptional circumstances’.

7. That the exceptional circumstances were that the Plaintiff made no effort to conceal his presence in this country, that he lived and worked openly within this jurisdiction, was in contact with the Gardai and immigration authorities and that he applied for and obtained a passport from the British Embassy.

8. That having regard to the fact that the delay between the Plaintiff’s conviction and the application to the High Court was contributed to by a certain dilatoriness on the part of the authorities in applying for the Plaintiff’s extradition, the fact the Plaintiff lived and worked openly in this jurisdiction and was in contact with the Gardai, the immigration authorities and the British Embassy, the family circumstances of the Plaintiff and to the circumstances of the case, it would be unjust and oppressive to deliver up to the Plaintiff under the Act of 1965. Per Barron J.: that the length of the sentence faced by the Plaintiff must be a consideration and that the shorter the sentence, the more compelling the delay and other exceptional circumstances would be to retain the Plaintiff within the jurisdiction.”

40. In his judgment Hamilton C.J. referred to the question of delay, or dilatoriness. At page 535 he said:

“The learned trial judge has held that ‘any difficulties that the Plaintiff has encountered in consequence of delay in these proceedings are of his own making’ and that it was neither unjust nor invidious that he personally should be required to accept the consequence, i.e. extradition.

The learned trial judge appeared to have taken the view that the sole responsibility for delay was that of the Plaintiff and does not appear to have taken into account the other factors established in evidence.

In the course of his speech in Kakis v Republic of Cyprus [1978] 1 WLR 779 , Lord Edmund Davies at 785 made the following statement, with which I agree:-

‘...the answer to the question of where responsibility lies for the delay may well have a direct bearing on the issues of injustice and oppression. Thus, the fact that the requesting Government is shown to have been inexcusably dilatory in taking steps to bring the fugitive to justice may serve to establish both the injustice and oppressiveness of making an order for his return...’”

41. Barron J. in his judgment referred to the concept of exceptional circumstances. In the passage which I have quoted earlier in this judgment he stressed that for circumstances to be exceptional they must be the exception rather than the norm. The behaviour of the Plaintiff in the Kwok Ming Wan case, in Barron J’s opinion, had been very different from the norm for fugitives from justice. (Pg. 540 of the report).

42. In considering “all the circumstances” Barron J. referred to the length of the sentence, as follows:-

“The sentence which the Plaintiff would be required to serve would be four years. The length of the sentence must be a consideration. The shorter the sentence, the more compelling the delay and other exceptional circumstances would be to retain him within the jurisdiction. The longer the sentence the less compelling such circumstances would be.”

43. Barron J. concluded:-

“The apparent failure to make early enquiries in this jurisdiction and to follow them up has resulted in the delay in finding the Plaintiff. This in itself is a further factor in favour of the Plaintiff. He has been a good citizen, he has used his freedom to alter totally his economic and family circumstances. He is young and with no other convictions. Balancing all these matters against the sentence of four years imprisonment imposed upon him and the fact that he absconded it would in my view still be oppressive to return him to the United Kingdom.”

44. The third case in question is that of M.B. v Conroy which was decided in the High Court by McCracken J., whose decision was upheld by this Court on appeal. [2001] 2 ILRM 311. In that case the Plaintiff in 1992 was convicted in Manchester Crown Court of an offence of indecent assault. Before he was sentenced by that Court the Plaintiff returned to Ireland. The offence of which the Plaintiff was convicted in 1992 first came to the attention of An Garda Siochana in 1995 while they were investigating a complaint of sexual assault allegedly committed by the Plaintiff in 1990/1991. The English police obtained knowledge of the Plaintiff’s whereabouts in Ireland only through a telephone call to them by the Gardai. A warrant for the arrest of the Plaintiff was issued by Manchester Crown Court in 1995 which was executed on 8th January 1996.

45. Both in the High Court and in this Court it was decided that the fact that the Plaintiff had been living openly in Dublin since his return to Ireland, combined with his chronic ill health, amounted to exceptional circumstances within the meaning of Section 50(2)(bb) of the Act of 1965.

46. The factor of chronic ill health is, of course, absent from the present case. In addition however in the M.B. case the Plaintiff in evidence stated that on his return to Ireland, he lived initially with his parents and claimed the Disabled Persons Maintenance Allowance. In September 1993 he moved into his own flat in Kilmainham and notified the Department of Social Welfare of his change of address. He said that at no time since he returned to Ireland had be attempted to hide his whereabouts and that information as to his address would have been easily obtainable. He said that, although he was separated from his wife since 1990, he believed that his parents’ address would have been well known to her.

47. Dealing with the general interpretation of the sub-section Keane C.J. stated in his judgment (with which Murray J. and Geoghegan J. agreed):-

“The provisions of Section 50(2)(bbb) have been considered by this Court in two recent decisions. In the first Fusco v O’Dea (No. 2) [1998] 3 IR 470 , it was made clear that this Court, in reviewing the decision of the trial judge was entitled, and indeed bound, to draw its own inferences from the primary facts and to form an independent opinion as to whether it would be unjust, oppressive or invidious to allow the rendition of the Plaintiff, while giving due weight to the conclusion of the trial judge.

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.”

48. Keane C.J. (at page 318) went on to consider the relevant lapse of time which in that case was from 7th December 1992 to 19th April 1996. He stated:-

“While a lapse of time, is accordingly, by no means of the same order as occurred in either Fusco v O’Dea or Kwok Ming Wan v Conroy I am satisfied that it was sufficient to trigger a determination by the High Court as to whether there were “other exceptional circumstances” which, coupled with that lapse of time, would make it unjust, oppressive or invidious in all the circumstances to deliver up the Plaintiff.”

49. The learned Chief Justice also considered the effect of dilatoriness on the part of the authorities. At page 318 to 319 he stated:-

“As is clear from the authorities to which I have referred, one of the factors which may constitute an exceptional circumstance is the dilatoriness of the prosecuting authorities, if established, in applying for the extradition of the Plaintiff. It was, of course, the action of the Plaintiff in absconding to this jurisdiction which led to that delay in the first place. However, it is not in dispute that the only action taken by the Manchester police to secure the Plaintiff’s return was to circulate his name on the police national computer in the United Kingdom. It is also not disputed that, had enquires been made with the Plaintiff’s estranged wife, who was the mother of the Complainant, it should have been possible to ascertain his whereabouts in Ireland. In these circumstances, I am of the view that the failure of the Manchester police to take any steps to secure his extradition until the inquiry was made by the Irish Gardai in August 1995 was an exceptional circumstance which can be taken into account in considering whether his release should have been ordered by the High Court.”

50. It is in the light of these dicta and decisions of this Court that I will now consider the facts of the instant case and the inferences to be drawn from them.

Conclusions

51. Applying, then, the requirements of the sub-section as interpreted in the case law, this Court, accepting the findings of fact of the learned trial judge but drawing its own inferences therefrom, must first enquire as to whether there has in this case been sufficient lapse of time. Counsel for the Defendant/Respondent accepts that the lapse of time, from the date of commission of the offence on 6th January 1989 to the date of the Plaintiff’s special summons on 17th June 1999, is sufficient to bring the Plaintiff’s case within the sub-section. In this he is clearly correct.

52. It should, in my view, also be noted that in the Kwok Ming Wan case the lapse of time was from September 1987 to October 1995 - some eight years - while in the M.B. case the lapse of time was from November 1992 to April 1996, some three and a half years. Only in the Fusco case was the lapse of time longer than in the instant case and in that case the facts were entirely different. It should perhaps also be noted that Barron J. in his judgment in the Kwok Ming Wan case held that a period of eight years was an exceptional lapse of time.

53. As has been noted in the earlier judgments, the sub-section speaks of “lapse of time” rather than “delay”. The term “lapse of time” is a neutral one, denoting a factual situation, while “delay” would imply a lack of action on the part of some person or body. In M.B. v Conroy Keane C.J. stated (at page 317):-

“The provisions were further considered by this Court in Kwok Ming Wan v Conroy [1998] 3 IR 527. It is clear from the judgment of Hamilton C.J. in that case that, although the expression ‘lapse of time’ is used rather than ‘delay’ the Court is entitled to have regard to where the responsibility lies for the lapse of time, since that may affect the Court’s conclusion as to whether it would be unjust, oppressive or invidious to deliver up the person whose extradition is sought. He cited with approval the following passage from the speech of Lord Edmund-Davies in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 at page 785 :

‘...the answer to the question of where responsibility lies for the delay may well have a direct bearing on the issues of injustice and oppression. Thus, the fact that the requesting Government is shown to have been inexcusably dilatory in taking steps to bring the fugitive to justice may serve to establish both the injustice and the oppressiveness of making an order for his return, whereas the issue might be left in some doubt if the only known fact related to the extent of the passage of time...’”

54. It is clear from this passage that the cause of the lapse of time may be considered by the Court, but that this should be done at the final stage, when the Court is looking at “all the circumstances” in order to decide whether it would be unjust, oppressive or invidious to permit the extradition of the person in question.

55. In the instant case the learned trial judge held that there were no “exceptional circumstances” . Having so held, he could not then proceed to consider “all the circumstances”, including the responsibility of the Plaintiff for the lapse of time. It seems to me that the learned trial judge therefore erred in laying repeated emphasis on the Plaintiff’s part in the “lapse of time” when he was relating the facts as found by him to the earlier part of the sub-section.

56. In all the circumstances, I have no doubt that there was sufficient lapse of time to bring the Plaintiff’s case within the first requirement of the sub-section.

57. The second requirement, which must also be fulfilled, is that of “exceptional circumstances” .

58. It is accepted that dilatoriness on the part of the authorities seeking extradition may of itself be an exceptional circumstance (see judgment of Keane C.J. in M.B. v Conroy quoted above). Given the facts in this case, were the Northern Ireland police authorities dilatory?

59. The Plaintiff failed to answer to his bail on the 8th September 1989. It was accepted that the RUC believed that he had gone to “Europe”. From the evidence given by the Plaintiff in the District Court and in the High Court it is not entirely clear whether he did in fact travel to the Continent for a short period before coming to this jurisdiction. He first signed on at the local Social Welfare Office in Ballymun on the 18th January 1990 and there is no doubt that he has been continuously resident in this jurisdiction since that date.

60. The RUC authorities contend that until October 1996 they believed that Mr McNally was in Europe. However there was no evidence before the High Court that any effort to trace him there or to ascertain his whereabouts was made. There is no evidence of contact with Interpol or with the police authorities in any European jurisdiction. There is no evidence that any check was made to ascertain whether Mr McNally held either a British or an Irish passport, and, is so, when it would be necessary for him to renew it. There is no evidence that his name was circulated on the police national computer - a step that was taken by the Manchester police in the M.B. case and that was regarded as minimal and insufficient by this Court.

61. Detective Chief Inspector Lee in his evidence accepted both that the Republic of Ireland would not be an unlikely place for the Plaintiff to be and that enquiry from the Department of Social Welfare was “one of the methods” used to ascertain the whereabouts of a person. However, he was not aware of any enquiries being made through the Gardai or through the Department of Social Welfare prior to October 1996.

62. Eventually, in October 1996, the information that the Plaintiff was in this jurisdiction emerged, in a somewhat ill-defined way, from the review of outstanding warrants. The evidence of Detective Chief Inspector Lee is that he immediately passed this information on to the RUC Extradition Unit. A delay of some seventeen months then occurred before a warrant seeking the Plaintiff’s extradition was issued by Her Majesty’s Crown Court in Northern Ireland on the 25th March 1998. This delay cannot, of course, be laid at the door of Detective Chief Inspector Lee, who acted promptly once he had the requisite information. However, no explanation is offered for this further delay.

63. The learned trial judge in his judgment holds that this second lapse of time “is not of itself so great as to render the Plaintiff’s extradition unjust, oppressive or invidious.” Again, in making this finding, the learned trial judge is referring to the latter part of the sub-section, to which I will refer later. At this point, in my view, this Court must look at the seventeen month delay in the context of dilatoriness on the part of the authorities. In that context I would accept the submission of Mr Birmingham that, having ascertained the Plaintiff’s whereabouts after a lapse of seven years, it was incumbent upon the Northern Ireland authorities to act immediately to seek his extradition. It is not so much that a delay of seventeen months would be excessive as that the delay of seventeen months occurred on top of a delay of seven years.

64. The Plaintiff has in this context drawn attention to the fact that he attended his mother’s funeral in Andersonstown, in January 1998. Apparently the church in which the funeral was held is in close proximity to the Andersonstown RUC Barracks. No attempt was made to arrest him. Detective Chief Inspector Lee’s evidence is that the RUC were not aware of the Plaintiff’s mother’s funeral. This evidence was accepted by the learned trial judge and must be accepted by this Court. It might well be, however, that had the RUC made enquiries in the period after October 1996 in regard to the Plaintiff’s family who were living in Andersonstown, that they could have been informed of the Plaintiff’s mother’s death and subsequent funeral. I am conscious that this is somewhat speculative but I am mindful that in the M.B. case it was accepted by this Court that had enquiries been made with the Plaintiff’s estranged wife it should have been possible to ascertain his whereabouts in Ireland.

In M.B. v Conroy this Court accepted that the dilatoriness on the part of the prosecuting authorities constituted an exceptional circumstance within the meaning of the sub-section. It seems to me that in the instant case the learned trial judge did not consider this precise question. His references to any failure to act on the part of the RUC are made either in the context of the Plaintiff’s possible belief that he would not be extradited or in the context of the general consideration of “all the circumstances” .

In the M.B. case the Manchester police circulated the Plaintiff’s name on the police national computer in the United Kingdom. In 1990 they also made an enquiry of the Gardai and were informed (mistakenly) that the Plaintiff was not in this jurisdiction.

65. It seems to me that in the present case over a period of seven years the police authorities took even less action to ascertain the whereabouts of Mr McNally. Even when they discovered his whereabouts there was no sense of urgency in seeking his extradition. In these circumstances I am of the view that the dilatoriness of the authorities in this case amounts to a exceptional circumstance.

66. Mr Birmingham submits that other “exceptional circumstances” included the fact that the Plaintiff lived openly in this jurisdiction, that he was in contact with both the Social Welfare authorities and the Gardai, that he went to Belfast in 1998 to attend his mother’s funeral, and his general family circumstances. It is clear from the evidence that the Plaintiff made no effort to conceal his whereabouts. By January 1990 he was registered with the Social Welfare authorities and drawing Unemployment Assistance. Apart from a comparatively brief period of casual employment, he continued to receive social welfare payments throughout the entire period up to his arrest. He did not, of course, establish a business, as did the Plaintiff in Kwok Ming Wan. On the other hand the Plaintiff in that case at one stage used another name and on another occasion deliberately lied to the Gardai in order to conceal his conviction. It seems to me that the significance of Mr McNally’s receipt of social welfare payments is that it resulted in a situation where at all times the State authorities not alone knew that he was living in this jurisdiction but also would have been informed every time he changed his address. It is also clear that the Gardai knew of his whereabouts, since they were able to call to his house on a number of occasions seeking information.

67. Mr Birmingham submits that this is not the normal course of living for a fugitive from justice or, to use the customary phrase, a person “on the run” . He relies on the dictum of Barron J. at page 540 in his judgment in the Kwok Ming Wan case which I have quoted above. It is, of course, true that Mr McNally was not in touch with the British authorities, as was the Plaintiff in the Kwok Ming Wan case. However he did go to Belfast to attend his mother’s funeral in the Anderstown area and apparently made no effort to conceal that fact.

68. With regard to the family circumstances, what is stressed by the Plaintiff is the similarity with the family circumstances in the Kwok Ming Wan case. Mr McNally has married, has a child, and has, with his wife, bought a house. They have, it now appears, sold that first house and bought another. In my view it is of no great importance that there was no evidence before the High Court as to the title to those properties. Both are undoubtedly family homes under the Family Home Protection Act 1976. There is the additional evidence that Mr McNally, while continuing to be unemployed, is a full-time father. His wife is employed outside the home. If he were to be removed from the family home his wife would be forced to give up her job. This would result in an inability to meet the mortgage repayments and the loss of the family home. Mr Charleton argues that this would happen if Mr McNally were to be convicted of an offence in this jurisdiction and imprisoned. This is undoubtedly true. On the other hand, Mr McNally like Mr Kwok Ming Wan, appears to have given up his offending behaviour and embarked on a new life. It should also be noted that one of the matters drawn to the attention of the Court in the Kwok Ming Wan case was that the Plaintiff’s wife would be unable to carry on the business without his help.

As in the Kwok Ming Wan case, I do not consider that the Plaintiff’s living openly in this jurisdiction, or indeed his family circumstances, would amount on their own to exceptional circumstances. However, both factors taken together with the dilatoriness of the Northern Ireland authorities both in seeking the Plaintiff’s whereabouts and, once they knew it, taking the appropriate action, would, in my view amount to exceptional circumstances within the meaning of the sub-section.

69. Given that I am of the view that the conditions as to lapse of time and as to exceptional circumstances are fulfilled, I now turn to the final part of the sub-section - whether it would having regard to all the circumstances be unjust, oppressive or invidious to deliver the Plaintiff up under Section 47 of the Act of 1965. As was pointed out by Denham J. in her judgment in Fusco v O’Dea (at page 508) the words “unjust, oppressive or invidious” have meanings which overlap to some extent. Denham J. did not attempt to give a definitive definition of these terms. She nevertheless added:-

“However, it appears to me that they suggest certain concepts. Thus, ‘unjust’ suggests, inter alia, unfairness, a lack of fair treatment. 'Oppressive' indicates actions that, inter alia, are oppressing a person, or group of persons, treating them badly, or cruelly, keeping them in subservience. While ‘invidious’ raises the concept of circumstances likely to cause resentment, anger or envy, such situations may arise if there is, for example, discrimination.”

70. It is also clear from the judgments of this Court in Kwok Ming Wan and M.B. that the Court is entitled to have regard to where the responsibility lies for the lapse of time, since that may affect the Court’s conclusion as to whether it would be unjust, oppressive or invidious to deliver up the person whose extradition is sought. In Kwok Ming Wan , Hamilton C.J. quoted with approval the following passage from the speech of Lord Edmund-Davies in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 at page 785 :-

“...the answer to the question of where responsibility lies for the delay may well have a direct bearing on the issues of injustice and oppression. Thus. the fact that the requesting Government is shown to have been inexcusably dilatory in taking steps to bring the fugitive to justice may serve to establish both the injustice and the oppressiveness of making an order for his return, whereas the issue might be left in some doubt if the only known fact related to the extent of the passage of time...”

71. The same passage was quoted and approved by Keane C.J. in M.B. v Conroy .

72. In the present case the learned trial judge laid considerable emphasis on the Plaintiff’s own responsibility for the lapse of time. At page 6 of his judgment he stated:-

“In determining whether the lapse of time is such as to render it unjust, oppressive or invidious to deliver up an Applicant I must have regard to the extent to which that lapse of time has been caused or contributed to by the conduct of the Plaintiff.”

73. Earlier in this judgment I have noted other similar references to the Plaintiff’s responsibility.

74. It seems clear from the above passage in Kakis v Government of the Republic of Cyprus which has been approved both by Hamilton C.J. and Keane C.J. that a balance must be struck between the initial responsibility of the Plaintiff and the later delay due to inaction by the authorities. As I have already said, it appears to me that a great part of the lapse of time in this case is due to the dilatoriness of the RUC authorities. In addition I would give some weight to Mr Birmingham’s submission that the Plaintiff in this case is in no different position from that of Plaintiffs in most extradition cases. Certainly the Plaintiffs in both the Kwok Ming Wan case and the M.B . case were fugitives from justice, and in both these cases they had actually been convicted of offences.

75. In considering “all the circumstances” I must also have regard to the length of the lapse of time and the Plaintiff’s family circumstances. Accepting as I do the dicta of Denham J. as to the meaning of this final part of the sub-section, it is open to me to take into consideration the Plaintiff’s family as a group in this context. If the Plaintiff is delivered up under Section 47 not only he but also his wife and child are likely to lose their family home and a large part of their financial resources. I must also take into account the fact that the Plaintiff has made no effort to hide his presence in this jurisdiction and has, indeed, visited Belfast in connection with his mother’s funeral. There is no suggestion that he has committed any offence in the past ten years while he has lived here. He has started a new life, founded a family and acquired a home.

76. The learned trial judge considered the evidence which was before him concerning the Plaintiff’s life in this jurisdiction and concluded that what had occurred was not sufficient to “induce in the Plaintiff a belief that his extradition would no longer be sought by the Northern Ireland authorities” . (Page 8) In my view this conclusion must be open to at least some degree of doubt. Apart from the Plaintiff’s uninterrupted open lifestyle over ten years and his constant contact with the authorities in this jurisdiction, there was uncontradicted affidavit evidence before the Court as to the Plaintiff’s earlier political connections in Northern Ireland. At paragraph 8 of the note of his cross-examination the following passage occurs:-

“He said that when the Ceasefire happened in the North he felt that it was all finished. He said that after the Good Friday Agreement he felt it was all over. He said that he had not fully read the terms of the Agreement at that time. He felt that he had little to worry about after the Agreement. He said that he had read part of it but not all.”

77. While the offence for which his extradition is sought is not claimed to be a “political offence” under the section, it is not unlikely that a person of the Plaintiff’s background (he had, for example, been interned in 1972 and 1973) would be lulled into complacency after the IRA and Loyalist Ceasefires in mid 1994, and still more so after the Good Friday Agreement.

78. The offence with which the Plaintiff is charged occurred on the 6th January 1989. On that same day he made a cautioned inculpatory statement at Castlereagh RUC Barracks. He was charged with the offence, was admitted to bail and failed to attend an arraignment hearing on the 8th September 1989. In these circumstances it does not seem to me that it would be “unjust” for him to be delivered up under Section 47.

79. I have some difficulty with the term “invidious” which seems to carry an element of unfair discrimination. It is not clear whether this implies discrimination between various persons whose extradition is sought. If so, I would hope that this aspect is covered by the comparisons I have made with the facts in other cases considered by this Court.

80. The sub-section, however, speaks of “unjust, oppressive or invidious” (my emphasis). Bearing in mind all the circumstances and balancing the various factors involved, it would in my view be oppressive to return the Plaintiff to Northern Ireland.

81. I would therefore allow the appeal and order the release of the Plaintiff.