Neutral Citation Number [2004] IRLHC 340
THE  HIGH  COURT
Record Number: 2003 No. 559 SP

Between:
Peter Geoffrey Gibson
Plaintiff

And

The Attorney General
Defendant
Judgment of Mr Justice Michael Peart delivered the 21st day of October 2004:

This is an application by the plaintiff for an order under Section 50 of the Extradition Act, 1965 (as amended) to the effect that he ought not to be returned to the United Kingdom under the terms of an Order of Mr Justice Kearns made on the 17th December 2003 under Section 47 of the said Act. It is submitted on behalf of the plaintiff that because of the delay which has occurred to date since the issue of the first warrant for his arrest by Leeds Crown Court on the 2nd January 2002, it would now be unjust, oppressive or invidious for him to be delivered up to the authorities in the United Kingdom pursuant to the said Order.

It is relevant to state that the offence with which the plaintiff is charged in the UK is alleged to have been committed on the 7th February 2001. A Warrant for his arrest was issued by Leeds Crown Court on the 2nd January 2002 and endorsed for execution in this jurisdiction on the 3rd January 2002. The plaintiff was duly arrested here on foot of that warrant and brought before the Dublin Metropolitan District Court which on the 15th February 2002 refused to make the requested order under Section 47 by reason of the warrant containing insufficient particulars of the offence to establish correspondence with an offence in this jurisdiction. The plaintiff was thereupon released from custody.

On the 13th September 2002 a further warrant was issued by Leeds Crown Court and when it arrived here it was noticed that it was in precisely the same terms as that in respect of which the order had been refused in February 2002. Following advice from the authorities here, the British authorities applied for yet another warrant from Leeds Crown Court and such issued on the 20th March 2003. This warrant was endorsed for execution here on the 7th May 2003 and the plaintiff was duly arrested by a member of An Garda Siochana on the 8th May 2003, whereupon he was brought before the High Court and remanded pending the hearing of the application for an order under Section 47 of the said Act. Eventually on the 17th December 2003 the said Order under Section 47 was made by Kearns J. The plaintiff appealed against the making of that order to the Supreme Court who dismissed the said appeal on the 10th June 2004. The plaintiff had commenced the present proceedings under Section 50 by Special Summons dated 22nd December 2003, and this accounts for the fact that this application was ready to be heard before me on the 8th October 2004.

The plaintiff’s application is grounded on his own affidavit sworn on the 27th April 2004. As appears therefrom the offence for which he is ordered to be returned to the United Kingdom dates back to February 2001, a period of some three years and eight months from then to the present date. The plaintiff submits that this is the length of time to which this court should have regard when adjudicating upon the issue as to whether in view of the delay it would be unjust, oppressive or invidious to return him to the United Kingdom to face his trial.

It is pointed out that following his arrest on foot of the initial faulty warrant the plaintiff spent a total of about 7 weeks in custody awaiting the determination of the first application for an order under Section 47 of the Act on the 15th February 2002. Counsel for the plaintiff, Sean Guerin BL has also referred to the further delay caused when the UK authorities obtained and sent a second warrant which was considered to be faulty by the authorities, and that it was not until 20th March 2003 that a new warrant was obtained and forwarded to the Irish authorities and which led ultimately to the arrest of the plaintiff on the 8th May 2003. What happened between February 2002 and 20th March 2003 is best seen by reference to an affidavit sworn by Richard Glenister of the UK Crown Prosecution Service on the 3rd September 2004, in which he deals with that period of delay. He states at paragraph 3 of his said replying affidavit:

	“…On the 13th March 2002 following the District Court decision, the Irish authorities advised that they had sought advice from Senior Counsel. That advice, which concerned the question of challenging the District Court decision, was furnished in July 2002, on foot of which the Crown Prosecution Service decided in August 2002to apply for the issue of an identical warrant and, on this occasion, supplement that warrant with an affidavit of facts. This was issued on 13 September 2002, but in December 2002 the Irish authorities informed us that we could not proceed in this manner by reason of res judicata. After further communication with the Irish authorities on the 17 February 2003, a draft warrant was prepared, and a date sought for the application before the Crown Court at Leeds. The date assigned by the Court was 20 March 2003, on which date the warrant, on foot of which rendition is sought, was issued.”

The plaintiff was arrested some seven or so weeks later on the 8th May 2003. Following his arrest he was brought before the Court and remanded from time to time. He was remanded in custody but on a subsequent application for bail made on the 26th may 2003, bail was granted but the plaintiff was unable to take up that bail and has remained in custody since his arrest.

The plaintiff in his affidavit points to the fact that since his release on the 15th February 2002 and until his subsequent arrest on 8th May 2003, he lived openly in the State in Wexford except for a two week visit to France, and made no attempt to hide his presence from the authorities. First of all he lived in bed and breakfast accommodation, and later in rented accommodation which he was enabled to do by reason of the receipt of a rent allowance. He states that prior to taking up this accommodation he registered with the local housing authority, and also registered for social welfare, and that for that purpose he provided his UK national health number and gave details of his previous address in Leeds, and his employment history. While in Wexford he attended the FAS office with a view to registering for a course, and had put roots down in Wexford where he states he had made friends and where he had become involved in the local arts council. He refers to the fact that only days before his arrest he had been at a meeting about organising a charity show for the elderly.

In this way it is contended that the plaintiff is entirely blameless for the delay which has occurred from the time of the alleged offence, and particularly from the time of his release by the District Court in February 2002. All of this delay, it is submitted, is culpable delay by the authorities caused by mistakes and inactivity on their part. He describes this delay in his affidavit as “inordinate and inexcusable”.

There is a second leg to the plaintiff’s submissions and this concerns the fact that there was some adverse and hostile publicity concerning the plaintiff on account of the nature of the offence with which he is charged. The plaintiff submits that this Court should have regard to this publicity which he describes as prejudicial and sensational. It is this publicity which Mr Guerin on behalf of the plaintiff submits constitutes “other exceptional circumstances” in addition to exceptional delay, for the purposes of satisfying the requirement of Section 50(2)(bbb) of the said Act, namely that:

	“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.” (my emphasis)

In addition, the plaintiff states in his affidavit that this publicity was given to the case in the teeth of a specific reporting restrictions imposed by Judge Hamill in the District Court in the 3rd January 2002. The plaintiff complains that the Garda authorities appear to have taken no action in relation to the fact the members of An Garda Siochana appear in his view to have been complicit in the provision of information to journalists. However, he has made no complaint to the Garda authorities about the matter, and no contempt application came before the said judge. There can of course be no doubt, from a perusal of the newspaper articles in question, that what is stated about the plaintiff is nasty in the extreme in relation to matters in respect of which he enjoys the presumption of innocence, and this Court in no way condones such an occurrence by any lack of importance the plaintiff may perceive the Court to have attached to that factor when considering its capacity to affect the question of his rendition to the United Kingdom. The plaintiff says that the material is prejudicial to him. In the sense of prejudice to his chances of a fair trial, I cannot accept that it works against the plaintiff in view of the fact that his trial will no doubt take place in Leeds where the newspapers would not enjoy any circulation. The articles, as I have stated, are certainly nasty and hostile to the plaintiff, but cannot be regarded as an exceptional circumstance for the purpose of section 50(2)(bbb) of the Act. Mr Guerin in fact has not sought to urge that the publicity was such as to prejudice his trial. What is urged is that this publicity has been used in an attempt to interfere with the plaintiff’s pursuit of his rights during the extradition process. Specifically the grounding affidavit refers to the article which appeared at exactly the time that the plaintiff made his application for bail, and would have been calculated to militate against the chances of the plaintiff being granted bail. As it happens, his bail application came before me, and I was able to assure Counsel that I for one had certainly not been aware or been made aware of the existence of the articles in question. Counsel submitted that it was contrary to the proper administration of justice for such articles to appear, and that it constitutes an exceptional circumstance which the Court can consider. I do not agree in the present case.

But I do not in fact have to make a determination as to whether there are in this case any other exceptional circumstances besides the lapse of time, because I am not satisfied that the plaintiff has surmounted the first hurdle placed by the section, namely that there should be a lapse of time which is itself exceptional. It is only when that requirement is satisfied that the Court is required to go on and consider whether there are other exceptional circumstances. I suppose if the lapse of time was in fact exceptional, a Court would scrutinise even more carefully the other factors, but I do not have to in this case. The time starts to run from the date of the alleged offence, which in this case is the 7th February 2001. For technical reasons the application under section 47 was unsuccessful on the 15th February 2002, but it cannot be said that there was any undue or inexcusable delay following the arrest on the first warrant. Some necessary and unavoidable length of time will always pass while the processes of the court are followed. There was undoubtedly some delay following the 15th February 2002 and until the plaintiff was arrested on the 8th May 2003. That could be said to be culpable delay since a good deal of it arose while the authorities tried to get their paperwork in order. I have no doubt that matters could have been progressed with more efficiency and haste. But simply because there is a period of culpable delay which is added on to what I might call normal delay does not mean that the delay from February 2001 to the present date is exceptional, and that it would be either unjust, oppressive or invidious to deliver the plaintiff up to the United Kingdom authorities.

 By reference to periods of delay which have been held to be exceptional in our jurisprudence, the period even of three years and 8 months is not exceptional. Mr Guerin has referred the Court to the judgment of Mrs Justice Denham in Lynch v. Attorney General [2003] 3 I.R. 416 where the learned judge stated that it is not to be said that section 50(2)(bbb) was in any way “formulaic,  in that a specific amount of years or months is needed to trigger the defence. Each case has to be determined on its own facts.” Mr Guerin rightly accepts that the period of time in the present case is at the shorter end of the scale, but he nevertheless submits that it is exceptional by virtue of the fact that a large portion of it is the responsibility of the prosecution. For the reasons which I have given I cannot agree. Mr Robert Barron BL on behalf of the defendant referred the Court helpfully to a number of decisions which have dealt with the lapse of time point. Without setting out all these decisions in detail, I would just remark that in almost all cases in which delay was found to be exceptional the delay involved was of a far greater magnitude than the present case. Mr Barron submitted that the delay in this case was not in any way exceptional for the purposes of the section, and I agree.

I therefore refuse the relief sought in these proceedings. 

Approved:  Peart J.