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Cite as: [2005] IESC 22

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Judgment Title: Carne -v- Assistant Garda Commissioner O'Toole

Neutral Citation: [2005] IESC 22

Supreme Court Record Number: 348/04

High Court Record Number: 2001 343 SP

Date of Delivery: 21/04/2005

Court: Supreme Court

Composition of Court: Geoghegan J., Fennelly J., McCracken J.

Judgment by: Geoghegan J.

Status of Judgment: Approved

Judgments by	Result	Concurring	Dissenting
Geoghegan J.	Appeal dismissed - affirm High Court Order	Fennelly J., McCracken J.

Outcome: Dismiss

- 7 -

THE SUPREME COURT
348/04

Geoghegan J.
Fennelly J.
McCracken J.

IN THE MATTER OF SECTION 50 OF THE
EXTRADITION ACT, 1965, AS AMENDED

BETWEEN/

RICHARD ANTHONY CARNE

Plaintiff/Appellant

and

ASSISTANT GARDA COMMISSIONER,
PATRICK O’TOOLE

Defendant/Respondent

JUDGMENT of Mr. Justice Geoghegan delivered the 21st day of April 2005

This is an appeal from an order of the High Court (Ó Caoimh J.) refusing relief under section 50(2)(bbb) of the Extradition Act, 1965, as amended. The relief sought was the release of the appellant pursuant to the provisions of that paragraph, extradition of the appellant having been sought.

This particular statutory provision has been considered by this court in a number of cases. In its relevance to this particular case it reads as follows:

“By reason of the lapse of time since the commission of the offence specified in the warrant … and other exceptional circumstances, it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under section 47 …”

In Armstrong v. Conroy two concurring unreported judgments of this court delivered by Denham J. and myself respectively on the 11th February, 2004 formed the decision of the court. In my judgment, I suggested that the court must in considering paragraph (bbb) engage in a threefold exercise as follows:

“1. It must consider whether there has been a

“lapse of time”

of the kind envisaged by the paragraph and in this connection having regard to the later words

“and other exceptional circumstances”

the

“lapse of time”

itself must be

“exceptional”.

2. In addition to considering whether there has been the necessary

“lapse of time”

the court must consider whether there were also

“other exceptional circumstances”.

3. If the court has come to the conclusion that the

“lapse of time”

within the meaning of the paragraph has occurred and that there were

“other exceptional circumstances”

the court must consider whether by reason of both the lapse of time and the exceptional circumstances it would be unjust, oppressive or invidious to deliver the applicant up under section 47 and in carrying out this exercise the court should have

“regard to all the circumstances”.

The expression

“all the circumstances”

may include matters other than the

“exceptional circumstances”

such as for instance the family situation of the applicant.”

For the purposes of this appeal both sides accepted these principles. Any problem that arose was in relation to the application of them.

The appellant in this case has been accused in England of a series of sexual offences alleged to have been committed against five separate girls under the age of thirteen years between the 1st January, 1980 and the 31st December, 1997. An affidavit sworn by one Richard Glenister of the English Crown Prosecution Service establishes that the first girl to come forward and complain did so on the 11th July, 1998. The offence alleged against her is one of indecent assault alleged to have been committed between the 1st January, 1990 and the 31st December, 1991, she being then a female under the age of thirteen years a factor which was a constituent of the particular statutory offence. There were delayed complaints by each of the relevant girls. The appellant was served with papers that informed him of the case made against him and the case was transferred to Plymouth Crown Court on the 25th January, 1999. The appellant failed to answer his bail on the 23rd April, 1999 and a warrant was immediately issued for his arrest. Eventually, after making enquiries the English police discovered in August, 1999 that the appellant had been living in Dublin and in receipt of social welfare benefits since July, 1999. Nine warrants were then issued on the 21st December, 2000. Mr. Glenister explained in his affidavit why the issuing of the warrants was somewhat delayed. When the appellant failed to answer his bail, the case was before the Crown Court in Plymouth and had not reached the stage of determining the form of charges to appear on the indictment. As there were a number of victims and a large number of alleged offences the preparation of the charges took time and involved a conference with counsel in September, 2000.

In these proceedings the appellant has alleged that the lapse of time was exceptional and that there were other exceptional circumstances in the form of his medical condition and that by reason also of his medical condition it would be unjust, oppressive of invidious to deliver him up.

An unusual and interesting question of law arises from the judgment of Ó Caoimh J. He pointed out that the Irish courts in recent years were well acquainted with the delays which frequently occur in relation to sexual crimes on young persons. That being so, the learned High Court judge took the view that there was nothing exceptional about the lapse of time having regard to the nature of the cases. At first sight this approach is attractive and seems full of common sense. However, counsel for the appellant, Mr. Feichin McDonagh, S.C., has put forward a strong principled argument against it. He points out that the section contains the expression “lapse of time” rather than “delay” and, therefore, in his submission issues of blameworthiness cannot be relevant. He points out that under the jurisprudence of this court it would appear that a criminal prosecution brought long after the relevant events may be liable to prohibition on that account alone if the accused has not been responsible for the lapse of time himself. He further points out that the justification for allowing the delayed prosecutions for sex offences to proceed where no actual prejudice in the defence can be demonstrated is the blameworthiness on the part of the accused if the allegations are true and assuming that there is prima facie evidence that the victim either due to dominance or some other reason was inhibited from reporting the offence. Mr. McDonagh then argues that no matter how often this may arise, nevertheless, the court has to investigate each individual case and that it is, therefore, wrong in principle to categorise these offences in such a way as to suggest that delayed prosecution of them is per se not exceptional.

There is, undoubtedly, considerable force in this argument though it must be said that the learned High Court judge was not really entering into the arena of blameworthiness in any way. He was simply noting that as a statistical fact there is nothing abnormal in a long lapse of time arising in these cases. There is considerable force in that common sense viewpoint also.

There is, however, a further argument which Mr. McDonagh puts forward and which undoubtedly raises a difficulty in the way of Ó Caoimh J’s interpretation. Because of the conjunctive nature of the requirements under the statutory provision, if for, say, the reasons suggested by Ó Caoimh J. the court forms the view that there was no exceptional lapse of time, it is precluded from considering any of the other matters under the section because those matters do not then arise. There may be doubts as to whether that can have been the true intention of the Oireachtas.

This difficult legal question is too important to decide unless it is absolutely necessary to decide it for the purposes of the appeal. I am quite satisfied that it is not necessary to decide this question in this appeal because I have come to the firm conclusion that there were no “other exceptional circumstances”.

As I have already indicated, the “other exceptional circumstances” put forward by the appellant relate to his medical condition. I intend to set out briefly what was said about his medical condition. In the appellant’s own affidavit sworn on the 19th October, 2001, he deals with this matter in paragraphs 23 and 24 which read as follows:

“23. I say and believe that I am now 64 years old and in the recent past have developed a number of serious medical problems. I have in the last 6 months suffered two strokes while in prison in Dublin awaiting extradition. I beg to reserve the right to furnish detail particulars of my medical history when same become available.

24. I say that I am particularly fearful that if order for my delivery is made to face the said charges then:-

(a) The stress to which I would be subjected in facing trial would endanger my health.

(b) If convicted and incarcerated the said medical conditions will be aggravated and further endanger my health.

In a supplemental affidavit sworn on the 25th February, 2003 the appellant in paragraphs 5, 6 and 7 says the following:

“5. I say and believe and have instructed my legal team on numerous occasions that I have difficulty remembering and recollecting events that took place in the past because of my medical history. In this regard I beg to refer to the medical report of Mr. Ian M. Graham FRCPI, FESC, dated the 5th November 2002 of the Adelaide and Meath Hospital, Dublin - commonly known as The Tallaght Hospital, Dublin 24 together with the discharge summarily referred to therein upon which bound together and marked with the letter A I have signed my name prior to swearing hereof.

6. Without prejudice, I further say and believe that Mr. Graham in his report also addressed the effect a trial would have on my health and wellbeing.

7. Further to the above I say and believe that my medical records also reveal a history of glaucoma, hypertension, raised lipids and a history of gout among others. I am on various medication for these conditions as well and attend Tallaght Hospital on an ongoing basis for treatment.”

In his said medical report of the 5th November, 2002 Mr. Graham refers to the discharge summary. Apparently on admission to the hospital originally the appellant had chest pain and weakness of the right upper and lower limbs and a CT scan of his brain showed an infarct (stroke) affecting the right parietal lobe. He was reputed to have a previous stroke in or about 1994 and was known to have hardening of the leg arteries for which he had received medical attention. He had had some heart treatment back in August, 2001 and also some treatment for high blood pressure. Mr. Graham summarised the position by saying that the appellant had definite and extensive vascular disease but that his coronary disease was more minor and that he also had a moderate degree of narrowing of the aortic valve. He undoubtedly had high blood pressure. When Mr. Graham prepared that report he had not seen the appellant for some time. The appellant’s solicitor, Mr. Gaffney, obtained another report from Professor Graham dated the 11th May, 2004 in which there was reference to a proposed operation for narrowing of the aortic valve and that this operation would usually involve five days and two weeks in hospital with possibly a six month period “before a person is fully recovered”. Professor Graham went on to make the following comment however.

“I think he may have some difficulty in instructing his solicitors to defend charges which occurred on such a very wide variety of dates as outlined in your letter. I do believe that, at this time, it would be oppressive to him to extradite him, given the fact that he has extensive vascular disease including several strokes (brain damage due to impaired blood supply) as well as leg artery disease and now narrowing of the aortic valve requiring surgical treatment from which a fairly prolonged recovery will be anticipated.”

Although the learned High Court judge dealt with this medical evidence more in the context of whether it would be sufficient to enable a court to conclude that the rendition of the appellant would be unjust, oppressive or invidious and in that respect, I agree with his views, it would seem to me that the medical condition does not in fact constitute “exceptional circumstances” on the existing evidence. Counsel for the respondent, Mr. Hugh Mohan, S.C., has argued that such evidence would not be sufficient to prevent a person in similar circumstances to the appellant being put on trial in this jurisdiction. The courts of this jurisdiction are entitled to take judicial notice of the obvious fact that criminal trials in England are conducted in a broadly similar fashion to criminal trials in this jurisdiction. Mr. Mohan’s test is a valid one in my view. There would have to be much more traumatic and devastating evidence of ill-health before the courts would regard a medical condition as providing “exceptional circumstances”.

I would, therefore, dismiss the appeal on this account alone. It is not necessary for me to consider other aspects of the case.

Carne v. Garda Commissioner