High Court of Ireland Decisions

1. On the 7th December, 1999 the Plaintiff herein proceeded by way of Special Summons for an Order directing his release pursuant to Section 50 of the Extradition Act 1965 as amended by the Extradition Acts, 1987 - 1994, in respect of four District Court Orders dated the 6th December, 1999 for the extradition of the Plaintiff to the United Kingdom. The application is grounded upon the Affidavit of the Plaintiff sworn on the 2nd March, 2000. Affidavits on behalf of the Defendant were sworn by Sgt. Martin O’Neill, Inspector Geraint Wynne Jones, Jason Guy Mansell and Moira Kitchen. Voluntary discovery was made under cover of three letters dated 2nd February, 2001, the 21st February, 2001 and the 2nd April, 2001. Further discovery was made by Affidavits filed on behalf of the Defendant by Martin O’Neill on the 23rd July, 2001 and a further Affidavit of Michael Heffernan was sworn on behalf of the Defendant on the 27th July, 2001.

2. From the foregoing documentation it is possible to set out the factual background to this case, noting some minor variations between the facts as deposed to by the Plaintiff and those deposed to in various Affidavits sworn on behalf of the Defendant.

3. On the 3rd day of November, 1992, the Plaintiff was a passenger in a motor vehicle which was stopped by police in Birmingham, England. The driver of the vehicle was found to have strapped to his body, beneath his clothing, a number of guns, together with ammunition. Thereafter the Plaintiff entered pleas of guilty in the Crown Court at Birmingham on the 22nd February, 1993 in respect of four offences of having firearms with intent to commit an indictable offence. The warrants from England submitted to the District Court specify the indictable offence as being an offence contrary to Section 170 of the Customs and Excise Management Act, 1979, contrary to Section 18 of the Firearms Act, 1968.

4. Section 170 of the Customs and Excise Management Act, 1979 provides that it shall be an indictable offence for any person to knowingly acquire goods for the purpose of exporting same with intent to defraud Her Majesty of any duty payable on the goods.

5. Section 18 of the Firearms Act, 1968 provides:-

6. The Plaintiff was sentenced to 7 years on each offence, the same to run concurrently.

7. On the 20th January, 1994, the Plaintiff absconded from the Remand Centre in Warrington while on temporary release.

8. Following this abscondence, he returned immediately to Ireland and resided openly at his former address in Dublin. This situation continued for a number of years. Warrants for his arrest were finally issued in the United Kingdom on the 12th October, 1998, which said warrants were endorsed by the Defendant on the 15th January, 1999. Thereafter the Plaintiff was arrested at his home in Dublin on the 18th January, 1999. There were successive adjournments of the matter in the District Court until the 6th December, 1999.

9. By his orders dated 6th December, 1999, District Judge O’Neill directed the extradition of the Plaintiff to the United Kingdom, certifying that the offences corresponded with offences under Section 27(B) of the Irish Firearms Act, 1964 as inserted by Section 9 of the Criminal Law (Jurisdiction) Act, 1976 and as amended by s. 14(5) of the Criminal Justice Act 1984, which states as follows:-

10. In his grounding Affidavit, Anthony Long contends:-

11. By way of response to these averments, the Defendant, in the Affidavit of Martin O’Neill sworn on the 7th July, 2000 denies only that the indication about putting the Plaintiff on a plane was given during the arrest on the 28th November, 1996. In the Affidavit of Geraint Wynne Jones, sworn on the 26th September, 2000 the following averments are made:-

12. The following additional facts emerge from the discovery made:-

13. In the hearing before this Court, the Defendant through Counsel has accepted the following primary facts, namely, that An Garda Siochána were aware both that the Plaintiff was at large and of his whereabouts from early 1994 and, that such information was communicated to the relevant police authorities in the UK, and that the UK authorities in turn had informed An Garda Siochána that they were, as of the 10th August, 1994, considering the question of extradition in relation to the Plaintiff.

14. Based on the foregoing factual scenario, the Plaintiff has argued for his release and that his extradition should not be permitted on the following two grounds:-

15. In her affidavit which was placed before the District Court, Moira Kitchen specifically accepted that the only offences in respect of which the Plaintiff was convicted before the Crown Court in Birmingham were those relating to being in possession of firearms with intent to export same out of the country without a licence and thereby evade the payment of duty payable to Her Majesty’s government.

16. Under Section 6 of the UK Firearms Act, 1968, the maximum sentence on indictment for the offence of possessing a firearm with intent to commit an indictable offence is life imprisonment, or a fine, or both, at the discretion of the Judge. A person convicted under Section 170 of the Customs and Excise Management Act, 1979 is liable, on conviction, to a penalty of any amount, or to imprisonment for a term not exceeding 7 years or to both.

17. Section 50(1) and (2)(bbb) of the Extradition Act, 1965 as amended provides that:-

18. On behalf of the Plaintiff, it is submitted that the following propositions appear from the authorities:-

19. On behalf of the Plaintiff it is submitted that having regard to the authorities it is clear that the lapse of time between February, 1993 and December, 1999 is of itself a significant lapse of time by any standard. Further, the Plaintiff was in contact with the gardai who knew he was at large from early 1994. The gardai informed the UK authorities of this fact at least twice in 1994 and the UK authorities took no steps to pursue the matter, despite indicating that the question of extradition was under consideration in August, 1994. Absolutely no reason had been placed on affidavit to explain the delay between then and the date of issue of the English warrants on the 12th October, 1998.

20. While no unusual family circumstances could be invoked, the Plaintiff had resumed his family life for the past 7 years. It was submitted that it would be oppressive and invidious to require the Plaintiff to now serve the balance of his sentence. The delay, it is submitted, is both exceptional and extraordinary.

21. It was further submitted that there is an obligation on responsible authorities to act speedily to ensure that convicted persons serve their sentences. In Cunningham -v- The Governor of Mountjoy Prison (1989) ILRM 33, the Prosecutor, who had been sent to prison for a term of six months, was released after only five weeks under the scheme established pursuant to Section 2 of the Criminal Justice Act, 1960. His release was conditional on his reporting to a probation officer. He broke this condition and the respondent Prison Governor duly requested the mans re-arrest. Because the subsequent re-arrest was not made until seven months later, and after the expiry of the original term of imprisonment, the Prosecutor sought an Order of Certiorari on the basis that his return to prison at that stage was unlawful. He also alleged a breach of his constitutional rights.

22. At p. 35 Egan J. stated:-

23. The requirement for fair procedures in this context, which persuaded Egan J. to prohibit the reactivation of the sentence, was approved by Barron J. in Dutton -v- District Justice O’Donnell (1989) IR 218, in which Barron J. stated (at p. 223):-

24. It is submitted that, while these two cases related to the execution of warrants, the rationale is the same as in the instant case.

25. On behalf of the Defendant, Mr. Cross submits that whatever period of time the Court regards as constituting the lapse of time under the section, it was not excessive in all the circumstances of the case. He further submitted that the Plaintiff by his own conduct contributed to the delay which did occur. The Plaintiff had failed to establish any prejudice or other exceptional circumstance which, considered in the context of all the circumstances, would suggest any injustice in extraditing the Plaintiff to the United Kingdom.

26. He further submitted the onus of proof to establish all the ingredients of Section 50(2)(bbb) rested on the Plaintiff to establish on the balance of probabilities.

27. It was further submitted that there was far less likelihood of prejudice or injustice where a Plaintiff had in fact been convicted and was serving a sentence when he absconded than in the case of a person awaiting trial. Where a Plaintiff serving sentence had placed himself out of the reach of the prosecuting authorities by his own actions, the Court should be slow to hold that any injustice could arise in directing his return. There had been no change in family circumstances in this case of the type addressed by the Supreme Court in M.B. -v- Conroy (2001) 2 ILRM where there was clear medical evidence that, since the commencement of the extradition proceedings, the Plaintiff had been admitted to hospital on three occasions and that on each occasion his condition was critical and life threatening. There was also evidence in that case that, should the Plaintiff be extradited from this country, there would be grave implications for his health and a serious threat to his life.

28. On behalf of the Plaintiff it was submitted that the offence of which the Plaintiff was convicted in the United Kingdom had two essential parts, namely, possession of a firearm and an intent to commit a specified offence contrary to the 1979 Customs and Excise Management Act. It was submitted that in order to find that the offence corresponds to an offence in this jurisdiction, the Court must be satisfied that there is correspondence in relation to both elements. The Plaintiff submits that there is no corresponding offence in this jurisdiction because there is no offence of being in possession of firearms with the intention to export same without paying duty. The Defendant before this Court had through counsel accepted that there was no such offence under Irish Law.

29. It was further submitted that the Plaintiff had been convicted in specific factual circumstances and the Court cannot have regard to other circumstances alleged to exist at the time of the arrest because those facts were not part of the offence of which the Plaintiff was convicted. Statements of belief contained in the Defendants Affidavits suggesting that the guns had been acquired for use in Ireland for armed robberies, from which the Plaintiff was to receive a commission by way of reward for helping to acquire the firearms in the United Kingdom, were not matters for the Court to take into account.

30. It was further submitted that the warrants or other supporting material, must contain sufficient particulars of a factual nature to enable the District Court Judge to enter upon a determination of the matter. ( Wyatt -v- McLoughlin (1974) IR 379; the State (Furlong) -v- Kelly (1971) IR 132; State (Gilliland) -v- Governor of Mountjoy Prison (1987) IR 201; Hanlon -v- Fleming (1981) IR 489)

31. In reply Mr. Cross on behalf of the Defendant submitted that a sufficiency of correspondence was established by showing that the offence in respect of which the Plaintiff was convicted in the United Kingdom was an indictable offence under s. 18 of the Firearms Act, 1968, the provisions of which were similar if not identical to those contained in Section 27(B) of the Irish Firearms Act, 1964 as amended.

32. Once it had been established that an indictable offence arising out of the possession of a firearm had been committed in the United Kingdom, no further or additional particulars were required to establish correspondence with the Irish statute which equally provided that an offence lay in the possession of a firearm with intent to commit an indictable offence. It was not necessary to specify the particular intent. In this regard, Mr. Cross informed the Court, that he was not relying on any of the additional detail contained in the Affidavits which referred to the suggested purpose for which the firearms had been acquired for use in Ireland. In his submission, he was not obliged to go that far.

33. Firstly, in relation to lapse of time, the jurisprudence clearly establishes that the relevant period for the Court to consider in the first instance is the period from the date of conviction, in this case the 22nd February, 1993, up to the date of commencement of proceedings, in this case the 7th December, 1999. This is a period of nearly seven years.

34. This is what the section provides in its somewhat unsatisfactory terminology, given that insofar as the start of the period is concerned, it makes no explicit provision for a situation where a Plaintiff has absconded from lawful custody. However, it would make nonsense of the section if the Plaintiffs own conduct in becoming a fugitive from justice was not fully taken into account, as has been emphasised in a number of the decisions. For all practical purposes, the true lapse of time, or perhaps more accurately, the delay, starts in early 1994, by which time the whereabouts of the Plaintiff were clearly established and the relevant information furnished to the UK authorities. Much more significantly, it has emerged in this case from discovery that the UK authorities were considering extradition as of August, 1994.

35. Nothing whatsoever occurred thereafter until 1998 when the Garda Siochána contacted Interpol in relation to some other matter with particulars about the Plaintiff. It was only then that extradition proceedings were set in motion. No evidence on affidavit has been offered to the Court to provide any explanation, good, bad or indifferent for this delay.

36. I have no difficulty in holding therefore that a significant lapse of time has taken place which, given the absence of any explanation whatsoever to move on the extradition which is admitted to have been under consideration in August, 1994, constitutes exceptional circumstances.

37. I must then consider whether, having regard to all the circumstances, it would be unjust, oppressive or invidious to deliver the Plaintiff up under Section 47.

38. As Mr. Cross has pointed out, there has been no evidence of prejudice comparable to that offered in M.B. -v- Conroy (2001) 2 ILRM 311. Mere inanition on the part of the prosecuting authorities in the United Kingdom should not be regarded as either deliberate or culpable, because, as Mr. Cross points out, there is absolutely no evidence to suggest such a case.

39. I would agree with the proposition that, even to return a person to finish out a lawful sentence, can in one sense be regarded as “oppressive”. The words in the section must mean something considerably more. It seems to me that not only do the words “unjust, oppressive or invidious” overlap to a significant degree, but in a sense each word throws light on the others: it must be unjust, oppressive or invidious in all the circumstances of the particular case to make an order. The justice or injustice lies not in the fact that the Plaintiff pleaded guilty and was sentenced.

40. On lapse of time and delay, it seems to me to come down to this: at what point in time should the line be drawn in the absence of specific prejudicial circumstances?

41. In this regard, I find the decision of Egan J. in Cunningham -v- The Governor of Mountjoy Prison (1989) ILRM 33 to be of particular assistance. The Plaintiffs contribution to delay effectively expired in 1994. Fair procedures thereafter required that the appropriate authorities, on being placed in possession of all requisite information, should have moved with reasonable expedition or, in the alternative, have provided to this Court a reasonable explanation on affidavit for not having done so. They did neither, and in my view the unexplained delay in circumstances where it is clearly established that extradition was under active consideration lends itself only to the conclusion that the requirement of fair procedures must mean that, if it is unfair, it would be also unjust, oppressive and invidious to order the Plaintiff’s rendition to the United Kingdom on the unusual facts of this particular case.

42. On the issue of correspondence, the requirements have been set out with great clarity by Walsh J. in Wyatt -v- McLoughlin (1974) IR at p. 397:-

43. This statement of the law makes it abundantly clear that sufficient factual material must appear in the warrants, or other accompanying documents, to satisfy the District Judge that there is a corresponding offence under Irish Law. The nomenclature adopted, as in the instant case, conveys little or nothing of the facts.

44. In this regard, Counsel on behalf of the Plaintiff referred the Court to Mr. Peter Charleton’s book “ Offences Against the Person” (1992 Round Hall Press) and to p. 382 thereof, where the requisite particulars appropriate to complete the offence are set out in the recommended form of indictment. The specification of the offence intended is clearly contemplated. Indeed, the author so states at p. 373:-

45. Correspondence is not in my view established merely by showing that a person was in possession of a firearm and then merely asserting the presence of an indictable offence, without in some way supplying particulars of what that offence might be. Without such particulars it is impossible to assess what, if any, offence has occurred.

46. Insofar as the commission of a specific offence may be gleaned from the warrants placed before the District Judge, and they are far from informative in this respect, the same point only to an offence under the Customs and Excise Management Act, 1979, the factual content whereof corresponds with no offence known to Irish Law. The offence for which Mr. Cross contends is some kind of embryonic or inchoate offence, which could achieve reality in a variety of different factual manifestations if his submission is correct.

47. The Affidavit of Moira Kitchen in effect concedes that the revenue offence is the only offence which was before the English Court and those facts, either in part, near entirety or total entirety, do not constitute an offence in this jurisdiction.

48. I would therefore also hold against the Defendant on this second ground also.

49. I therefore hold:-

50. On foot of those findings and conclusions I direct the release of the Plaintiff.