High Court of Ireland Decisions

1. The Applicant pleaded not guilty to this offence. He was convicted and sentenced to a term of 7 years imprisonment.

2. In September, 1991 he was serving that sentence at HM Prison Dartmoor. On the 26th of that month he was temporarily transferred from that prison to the Royal Naval Hospital at Plymouth but remained in the lawful custody of the Governor of HM Prison Dartmoor.

3. Within two days of his transfer to the hospital the Applicant had made contact with two of his friends. He contacted them by phone from the hospital where he was receiving treatment. With their help he escaped from the hospital on the 28th September, 1991.

4. On the following day he fled to Ireland. He was accompanied by his family on this journey which was made by ferry. His family had been residing in England for about two years prior to the Applicant's conviction.

5. Having arrived in Ireland the Applicant lived in hostel accommodation for six weeks. He and his family then obtained permanent accommodation at 23 Kilcarrig Green, Tallaght. There they remained for one year. Then they moved to 515 Collins Avenue, Dublin were they resided for a further two years. They then moved to Ballyduff, Tralee, County Kerry. During all of this time they have been in receipt of Social Welfare and Health Board assistance.

6. Meanwhile, the Applicant was on the 1st October, 1993 arrested and charged with a burglary at Collins Avenue in Dublin. He was given bail in respect of that charge. The case was listed for hearing on the 26th July, 1994. The Applicant attended Court on that day but absconded before his case was called on for hearing. He remained unlawfully at large until he was arrested on either the 23rd October or 23rd November, 1994. There is some dispute as to the correct date but little turns on it. On whichever of those dates is correct, the Applicant was arrested and charged with another robbery in this country. The Affidavit evidence is to the effect that he was also charged with possession of firearms, possession of an offensive weapon and false imprisonment. He gave evidence before me and denied that he was charged with these latter offences.

7. In any event he pleaded guilty to the robbery charge and was sentenced to five years imprisonment by Spain J. in the Dublin Circuit Criminal Court. That sentence was imposed in May, 1995 and was reviewed by the trial Judge in May, 1996. On that occasion the balance of four years imprisonment was suspended on condition that the Applicant keep the peace and be of good behaviour for five years.

8. The Applicant appears not to have honoured those conditions because he has admitted in evidence that he has now been returned for trial on a charge of conspiracy to rob a Post Office in County Kerry on the 26th June, 1996 and that he intends pleading guilty to that offence. His trial has been fixed for the 11th November, 1997.

9. So much for the history of the Applicant since his arrival in Ireland following his escape from custody in England.

10. Following his absconding from the United Kingdom I am satisfied that the authorities in that jurisdiction followed the normal procedures which would apply when an escape from lawful custody occurs. The Applicant was listed as a wanted person on the police national computer and information concerning him was circulated amongst the United Kingdom police forces.

11. In May, 1993 Humberside police were co-ordinating an investigation into offences and in the course of that discovered that the Applicant was living at 515 Collins Avenue, Dublin. In July or early August, 1993 the Devon and Cornwall police submitted a report to the Crown Prosecution Service in Exeter. Further information and advices were sought in England including Counsel's advice which was given on the 16th December, 1993. On the 4th January, 1994 a draft set of extradition documents was received by the Garda authorities for checking so as to ensure that they complied with the legal requirements of this State.

12. By February, 1994 the Gardai had received a warrant from the United Kingdom. It was approved for endorsement by the Attorney General on the 7th February, 1994 and by the Minister for Justice on the 17th February, 1994. On the 15th April, 1994 it was endorsed for execution by the Defendant.

13. At that time the Applicant was on bail in this jurisdiction in respect of the Collins Avenue burglary. He dishonoured his bail in July, 1994 and remained unlawfully at large until his arrest in either October or November, 1994. At that stage he was remanded in custody until dealt with by Spain J. in May, 1995. He was released by order of that Judge in May, 1996 and was then arrested on foot of the warrant in suit. An order for his delivery on foot of the United Kingdom request was made by the Dublin Metropolitan District Court on the 16th October, 1996.

14. The Applicant now seeks his release pursuant to the provisions of Section 50(2)(bbb) of the 1965 Act as amended. The claim for release pursuant to Section 50(2)(c) has not been pursued.

15. Section 50(2)(bbb) reads as follows:-

16. This contemplates two circumstances where extradition may be sought. The first is extradition whilst the extraditee is awaiting trial in the requesting jurisdiction and the second is subsequent to the extraditee's conviction there. It is the latter circumstance which is relevant for my consideration here.

17. In order to secure the Applicant's release under the relevant subsection he would have to show that

18. The Applicant's conviction was in October of 1990. He was in lawful custody until his escape at the end of September, 1991. The English police did not become aware of his residence in Ireland until May, 1993. By February of the following year the warrant had been received by the Gardai. At that time and indeed since the previous October the Applicant was awaiting trial here. He then absconded and was not re-arrested until either October or November, 1994. Once arrested at that time he was remanded in custody. Within a period of not more than six weeks following his release by Spain J. he was arrested on foot of the warrant in suit.

19. Whilst seven years have elapsed since his conviction and six years since his escape I am satisfied that the bulk of that delay is attributable to the Applicant's own conduct. His original escape, his subsequent dishonouring of bail in this country and his imprisonment here were all brought about by himself. Whilst the subsection speaks of the "lapse of time" without qualification, it would, in my view be extraordinary if an Applicant could rely on his own criminal wrong-doing so as to avail himself of this provision. I am satisfied on the evidence that the authorities in both jurisdictions acted with reasonable expedition in the way in which they dealt with this matter. Moreover, I am also satisfied that the authorities were quite entitled not to seek the Applicant's extradition pending the determination of the criminal proceedings here. I do not accept the claim that the Applicant's whereabouts here were known to the Gardai at all times.

20. Reliance has been placed on the decision of Geoghegan J. in the case of Fusco -v- O'Dea in support of this contention concerning lapse of time and also for the second leg of the case which I will consider in a moment. In my view this case on its facts is far removed from Fusco's, not least by reason that here there is no suggestion that any delay was caused by a decision of the United Kingdom authorities not to seek extradition. I am satisfied that the Applicant's case on lapse of time here is not made out.

21. I turn now to consider the second part of the claim. It is said that there are present other exceptional circumstances which would, having regard to all the circumstances make it unjust, oppressive or invidious to order delivery up. Three matters are relied on to support this case.

22. First, it is said that the extradition of the Plaintiff to the United Kingdom to complete his sentence would lead to a severance by him of his links with his family. That is of course so with any person who is imprisoned and there is nothing exceptional about that. But here the Applicant says that his family could not afford to visit him whilst in jail in the United Kingdom. In considering this submission I must not lose sight of the ease of mobility that the Applicant's family has enjoyed in the past. His family lived in England for two years, then moved to Ireland on the day following his escape from custody there and furthermore have made a number of moves in Ireland. I don't consider this case to be exceptional nor do I discern anything unjust, oppressive or invidious arising under this head of claim.

23. The second claim under this heading arises from the Applicant's medical condition. He has diabetes. The report from Dr Richard Firth shows that he has been both un-cooperative with his medical advisors and indifferent to put it at its lowest concerning his medical condition. Reliance is placed on the fact that ultimate renal failure awaits him but he is no different in that regard to any other diabetic. No suggestion is made that he would not obtain appropriate treatment for his condition whilst in prison. Again I find nothing exceptional which would render his delivery up unjust, oppressive or invidious.

24. The last ground relied upon is an assertion that the Applicant will be subject to assaults and ill-treatment whilst in prison. He says that such assaults have been perpetrated on him in the past and that on one occasion he required hospitalisation. This averment is made in an Affidavit. No dates, circumstances or indeed any detail at all has been given on this topic. Furthermore, the Affidavit says that medical reports supporting this contention would be produced. None were. I cannot accept that the Applicant has made out a case under this heading either.

25. Reliance was placed on the decision of Smyth J. in Wan -v- Conroy (unreported 17th December, 1996). This case comes nowhere near the facts of that case and is clearly distinguishable. Geoghegan J. in Fusco's case referred to the over-lapping between the statutory expression of "unjust" "oppressive" and "invidious". Smyth J. in Wan's case drew attention to the Court being required to consider all the circumstances when dealing with an application under this subsection. Looking at the facts in this broad way, which is the most advantageous from the Applicant's point of view, I cannot conclude that it would be either unjust or oppressive or invidious or that there are any exceptional circumstances present which would warrant a finding in his favour.

26. This application is dismissed.