[2004] IEHC 363
THE  HIGH  COURT
Record Number: 2004 No 121 SP

BETWEEN:
JOHN JAMES DALY
Plaintiff

AND

ATTORNEY GENERAL
Defendant

Judgment of Mr Justice Michael Peart delivered on the 16th day of November 2004:

This is an application by the plaintiff for relief under the provisions of S.50 of the Extradition Act, 1965, as amended, ("the 1965 Act)" following the making of an Order by the High Court on the 30th March 2004 under S.47 of the same Act for the rendition of the plaintiff to the authorities in the United Kingdom. These proceedings were commenced immediately upon the conclusion of the application for the said Order under S.47, and there are two grounds set forth in this application as to why the said Order should not be implemented.

Firstly, it is contended that there is an element of delay in the case such as to bring matters within the provisions of S.50(2)(bbb) of the 1965 Act; and secondly that there is a reasonable doubt as to whether the prosecution authority had not formed a clear intention to prosecute the plaintiff for the alleged offences in England prior to its application for the warrant on foot of which his extradition has been sought.

Background Facts:

On the 19th December 2001 a warrant was obtained from a Magistrate for the Hampshire Commission Area assigned to the Petty Sessions Area of South Hampshire, England for the arrest of the plaintiff, John James Daly in relation to an alleged offence described therein as follows:

"On a day between the 31st March 1994 and 1st September 1994 at 53, Gale Moor Avenue, Gosport, Hampshire, England committed buggery with Sean Richard Hewlett also known as Sean Richard Wallbank, a male person under the age of 16 years."

The plaintiff has averred that at no time was he ever questioned, arrested or charged in relation to this alleged offence, and that the first he heard of it was in the year 2000 when he was contacted by the Gardai at Blanchardstown Garda Station who asked him to attend at that Garda Station for the purpose of being interviewed by the English Police. While it is not referred to in his grounding affidavit, Counsel for him has stated in her submissions that following taking legal advice on the matter he declined to attend for the purpose of questioning by the English Police.

He states that he heard nothing further until he received a summons to appear at the district Court on the 11th July 2001 pursuant to Part VII of the Criminal Justice Act, 1997. He attended on that date and states at paragraph 7 of his grounding affidavit

"I say that Counsel for the State had a list of questions and a video prepared for and on behalf of the Minister for Justice, Equality and Law Reform in relation to a request for assistance from the Judicial Co-operation Unit at the United Kingdom Home Office emanating from the Crown Prosecution Service of England and Wales in connection with a criminal investigation related to the offence cited in this Extradition. I further say that Judge Haughton refused to allow the application to go ahead."

Again it is not averred to in the grounding affidavit, but Counsel has stated in her submissions that the reason why the application was not permitted to proceed was that the Judge was of the view that the procedure being adopted applied to witnesses and not to accused persons.

It appears that at some later stage voluntary discovery was made to the plaintiff of the list of questions which it had been intended would be asked of the plaintiff in the District Court on the 11th July 2001. The video, which was of an interview with the complainant, was never made available to him by way of voluntary discovery or other wise. He states that the discovery of the list of questions was the first occasion on which he had any idea of what was being alleged against him, and he asserts his innocence in respect of the allegation. He states that he and his wife have been living in Ireland openly, and that as a result of this allegation he has been "distraught" and that his marriage has broken down as a result. He says also that if he is returned to England he has nowhere to live and does not know what he would have to face. He concludes his affidavit by stating that he has been advised that by reason of the lapse of time since the date of the alleged commission of the offence, and by reason of the delay on the part of the prosecuting authority in applying for the warrant, the delay in the matter coming before the Court and the maters referred to in his affidavit, it would be "unjust, oppressive and invidious" to return him to England on foot of the Order made under S. 47 of the 1965 Act.

Further background factual information can be gleaned from the affidavit of Richard Edwin Glenister sworn on the 22nd September 2004. He is a barrister employed by the English Crown Prosecution Service. He states that the complaint in relation to the alleged offence was not made until the end of 1997 when the complainant first told his mother about the alleged incident. He states also that in February 1998 and December 1998 the police conducted video interviews with the complainant. He states also that the plaintiff's whereabouts were not known until March 1999, and that advice at that stage was sought from the Crown prosecution Service about travelling to this State for the purpose of interviewing the plaintiff in relation to the allegation. He says that arrangements in that regard were put in place in June2000 but that the plaintiff on legal advice declined to attend for interview.

Mr Glenister then states at paragraph 5 of his affidavit:

"5………It was then intended to seek extradition and work commenced to prepare a full file for that purpose. However, on 20th September 2000, the Crown Prosecution Service received a letter from the Home Office Judicial Co-operation Unit, which informed us that a procedure existed in Ireland (under Section 51 of the Criminal Justice Act, 1994) whereby persons could be compelled to appear before the District Court for questioning. A list of questions was prepared by Detective Constable Demott. This was sent to the Home Office Judicial Co-operation Unit on 8th December 2000 for onward transmission to the Irish authorities with a view to making such an application.

6.	As appears from the plaintiff's affidavit, the court ruled that he was not obliged to answer the questions. The Irish authorities indicated that they intended appealing that decision but, on 21st September 2001 the Home Office Judicial Co-operation Unit advised that the Irish authorities had decided against doing so. Thereafter, the extradition application proceeded with the warrant being issued on 19th December 2001."

There has been another affidavit sworn on behalf of the defendant in these proceedings, namely an affidavit of Charles Wallace, sworn on the 23rd September 2004. Mr Wallace is a solicitor employed by the Chief State Solicitor's office and who is the solicitor assigned to oversee extradition matters in that office. He states that the application for a rendition order under Section 47 of the 1965 Act was listed for hearing before the High Court on the 19th November 2002, but was adjourned on that date because the plaintiff raised for the first time an issue concerning the intention of the English Police to prosecute the plaintiff. He states that in December 2002 a request for voluntary discovery was made by the plaintiff, to which I have already referred, and that no application for any order of discovery was made on behalf of the plaintiff in respect of the video tape referred to, or otherwise. Mr Wallace then goes on to state that the application was again listed for hearing on the 24th January 2004 but was not heard as no judge being available, and the matter was adjourned for hearing to the 30th March 2004. Mr Wallace states that at the plaintiff's request a police officer was available on each of these occasions for the purposes of being cross-examined on the issue of the intention of the English authorities to prosecute the plaintiff, and that, although this was the very reason that the hearing of the Section 47 application had been adjourned in November 2002, the fact is that the issue was not pursued at all by the plaintiff when the matter came to be determined in March 2004 under Section 47 aforesaid. He states that on that date the application proceeded on the basis of the formal proofs required for the said order.

The issues:

1.	Intention to prosecute:

The question of whether the requesting prosecution authority had or had not formed an intention to prosecute the accused person at the time the warrant was sought came to be considered by Barr J. in Brien v. King, High Court, unreported, 5th July 1996. In that case, evidence was heard in the District Court on the application for the order under Section 47 from a member of the English Police. He was cross-examined by Counsel on behalf of the respondent. From this cross-examination it emerged that the respondent in that case had never been questioned, arrested or charged with the offence alleged, and that it was intended to question the respondent if he was returned to the United Kingdom. The officer was then re-examined on behalf of the Attorney General and was asked: "Is there enough evidence to prosecute should he not answer your questions". In reply he stated: "It is difficult to comment on that; it depends; it is not my decision". It appears that he was then asked what the warrants disclosed an intention to do, to which he did not answer. Finally it appears that he was asked directly if it was intended to prosecute the respondent for the offences of robbery, to which he answered "Oh, Yes". The District Judge made the necessary order from which an appeal came before Barr J. Counsel had submitted that the District Judge had failed to comply with the principles of natural and constitutional justice and basic fairness of procedures in that the officer's evidence indicated at least a doubt as to whether a firm decision had been made to prosecute the applicant in respect of the alleged offences referred to in the warrant at the time the warrant was applied for, or whether a decision had yet to be made in that regard, which might depend upon the results of an interrogation of the respondent on his return to the United Kingdom.

In that case it was conceded by counsel for the Attorney General that an order for extradition ought not to be made if the evidence establishes that a decision to prosecute in respect of the crime alleged in the warrant has yet to be made "at the time of the application to a court in this jurisdiction for extradition in respect the alleged crime or crimes in question." I should just draw attention to the slight difference between that concession and what is contended in the present case, namely that there is no evidence in this case that the prosecution at the time the warrant was applied for in the U.K (i.e. 19th December 2001) had formed an intention to prosecute the plaintiff herein. It is also noteworthy that the submissions were being made in the context of an application for an order under Section 47, and not in relation to an application for release under Section 50.

In any event, Barr J. concluded as follows:

"On reviewing the evidence given by D/Constable Tonge in the District Court it seems to me that there is a sufficient element of ambiguity to raise a reasonable doubt as to whether or not the police officer in charge of the investigation into the robberies in question had decided at the time when the warrants were sought and obtained in the Magistrates Court in Manchester, that the applicant was to be duly prosecuted in respect of the offences in question on being extradited from Ireland regardless of the outcome of his proposed interrogation in England. Accordingly the appropriate course for the learned District Judge to have taken in the circumstances was to adjourn the application for the purpose of hearing evidence from the senior officer in the Greater Manchester Police in charge of the investigation of the particular robberies as to whether it had been decided by him to proceed with the prosecution of the applicant forthwith in respect of both crimes at the time when application was made to the Manchester magistrates Court for the warrants in question or whether a decision in that regard is dependent on the interrogation of the applicant by the police consequent upon the proposed extradition." 

Barr J. the directed that the application should be re-entered before the District Judge for the purpose of carrying out the investigation as to the intention to prosecute so that an appropriate order could then be made in the light of the totality of the evidence.

It must be remembered of course that the matter had come before Barr J. by way of appeal from the Order made by the District Judge, and not in relation to an application under Section 50 of the 1965 Act. Nowadays by virtue of the 2001 Act, the application under Section 47 comes in the first instance before the High Court, and that there is a right of appeal to the Supreme Court.

Marie Torrens BL has relied upon the judgment of Barr J. in relation to her submission that in the present application, this Court must be satisfied that the UK authorities intended to prosecute the plaintiff before relief under Section 50 should be refused. Her written submissions to the Court concentrate almost exclusively on the other issue raised, namely delay, and I will come to that. Ms. Torrens has nevertheless submitted that before the plaintiff can be extradited there must be an intention to prosecute the plaintiff for the offence, and that on the Section 47 application no such evidence was called. 

Robert Barron BL, on behalf of the defendant, submits that on a Section 47 application it is a matter for Court to be satisfied that the authority intends to prosecute, but that if no issue is raised on that issue by the person whose extradition is sought, the order can be made on the basis of the existence of the warrant, and that in this case not only was the application under Section 47 adjourned at the plaintiff's request specifically so that this issue could be raised and dealt with, but the plaintiff did not even avail of the opportunity to cross-examine the witness they had requested be made available for cross-examination in that regard. He submitted that it simply was not possible in these circumstances to raise the issue again now.

I have been referred to no authority to suggest that the question of the prosecutor's intention to prosecute at the time it obtains the warrant is a matter relevant to the Court's consideration of issues arising on an application under Section 50. That is not surprising given the specificity with which Section 50 is drafted. There is no need to set out in this judgment the provisions of Section 50. Suffice it to say that there is nothing within its provisions which mandates or even entitles this Court to consider the question of whether the prosecuting authority had at the time it obtained the warrant an intention to prosecute the plaintiff for the offence charged. 

I am satisfied that this ground must fail. The question raised is one appropriate to be raised on the Section 47 application, and if it is established that there is no intention on the part of the requesting authority to prosecute the accused person in respect of the offence at the time the warrant is sought, then an order under section 47 may not be made. But in this case the issue was not pursued on that application, despite earlier indications that it would be. Neither has the order made under Section 47 been appealed on the basis that it ought not to have been made. That issue is not one appropriate for consideration under Section 50. That section is quite specific as to the matters relevant to be considered, and in the context of this case, the issue of delay is the only appropriate issue which has been raised and which this Court can consider on this application. I will now deal with it

Delay:

I have already set out the chronology of the events leading up to the making of the Section 47 order on the 30th March 2004. There was the delay in the reporting of the offence itself to the police from 1994 to 1997, but that delay is not relevant to my consideration in my view. It might be something which could avail the plaintiff in any application he might make to have his trial stayed on the grounds of prejudice, but it not delay on the part of the authorities themselves in the matter of the extradition of the plaintiff. The evidence is that the police interviewed the complainant in February 1998. The plaintiff's whereabouts did not become known until March 1999. Advice was then taken by the UK police in October 1999 about travelling to Ireland to question the plaintiff. Arrangements were put in place to do that in June 2000 but the plaintiff as he was entitled to do declined to be questioned on legal advice Thereafter there was the abortive attempt to have the plaintiff questioned in the District Court under the provisions of  Section 51 of the Criminal Justice Act. 1994. That is the point at which it could be said that culpable delay on the part of the authorities commenced, because the pursuit of that application certainly was a waste of time, in that it was unsuccessful, and instead the authorities might have been better advised to go ahead and obtain the warrant in England and proceed directly to have the plaintiff arrested so that the application under Section 47 could be commenced at that time instead of, as it happens in December 2001. But the question is whether that delay is culpable delay or inexcusable delay, and in my view it is not. It is not delay caused by simply doing nothing at a time when there was something they could do. It can certainly be said that time was wasted on doing the wrong thing, but that is different to sitting back and doing nothing for a period of time which could be regarded as excessive or exceptional. Any delay in this case is not exceptional. There has been  a lapse of some time in a literal sense but nothing of an exceptional nature or of a nature that is inexcusable or culpable. The Court has been referred to a number of the well-known authorities on the question of delay in cases of this kind and there is no need to refer to them specifically. It is accepted by both sides that firstly there must be a lapse of time; that this lapse must itself be exceptional, and that such exceptional lapse of time, taken together with other exceptional circumstances, must "having regard to all the circumstances" render it unjust, oppressive or invidious to deliver up the plaintiff - the latter adjectives being considered to be disjunctive rather than conjunctive in the section.

Since I am of the view that the lapse of time in this case is not in any way exceptional, there is no need for me to proceed to consider whether the plaintiff has established any additional exceptional circumstances in addition to delay. If I was to, however, I am satisfied that he has not. He has pointed to the fact that his marriage has broken down as a result of this allegation contained in the warrant, but that is simply an unhappy circumstance unrelated to whether it would be unjust, oppressive or invidious to deliver him up. He has also stated that he has now settled down in Ireland and that if returned to England he does not have anywhere to live, and does not know where he would live. These in my view, while perhaps the reality for him, do not constitute the sort of exceptional circumstances contemplated by the section. However as I have said I do not strictly speaking have to consider these matters at all in view of my determination of the issue of delay itself.

I refuse the relief sought in these proceedings.

Approved: Peart J.