AN CHÚIRT UACHTARACH
THE SUPREME COURT
Hamilton C.J,
O’Flaherty J,
Murphy J,
Lynch J.,
Barron J.,
(78/98)
IN THE MATTER OF THE EXTRADITION ACTS, 1965 TO 1994

BETWEEN:
NESSAN QUINLIVAN
Appellant/Applicant
.V.

NOEL CONROY AND HUGH SREENAN
Respondents/Respondent

Judgment delivered on the 29th day of October, 1998, by O’Flaherty J. [Nem. Diss.]

This is an appeal brought by Nessan Quinlivan from the judgment and order of the High Court (Kinlen J.) of 3rd April, 1998, refusing him an order for discovery against the respondents, who are both assistant commissioners in the Garda Síochána.

The return of the appellant to England to face charges is sought pursuant to four warrants issued by the relevant judicial authorities in England and endorsed for execution in the State by the respondents. His extradition is being sought on the following charges, viz:-

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1.	Conspiracy to murder one Sir Charles Tidbury and others;
2.	Conspiracy to cause explosions likely to endanger life or seriously injure property;
3.	Escape from lawful custody in Brixton Prison, London;
4.	Unlawfully and maliciously wounding Malcolm Hugh David Kemp with intent to do him grievous bodily harm on 7th July, 1991 at Brixton Hill, London, contrary to s.18 of the Offences Against the Person Act, 1861.

On the 11th September, 1995, the President of the District Court, Judge Smithwick, made orders for the delivery of the appellant into the custody of a member of the City of London police force for conveyance to London on foot of the said four warrants.

The appellant applied to the High Court and claims that he should K released pursuant to s. 50 of the Extradition Act, 1965.

He has been on bail since 11th September, 1995.

Mr. Quinlivan’ s essential claim in the main proceedings is that the offences alleged are political offences, or offences connected with political offences and, as regards the charge of escaping from lawful custody.  It is asserted on his behalf that there is a lack of a corresponding offence in this jurisdiction on account of agent provocateur: he asserts that his escape was

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facilitated by a prison officer and that defeats any correspondence there could be with an Irish offence of escape from custody since, he submits, the existence of an agent provocateur would inevitably lead to an acquittal in this jurisdiction.

He also has a complaint, in separate proceedings, that because of the adverse publicity that surrounded his arrest in October, 1990, he would not get a fair trial in England. Seemingly, the Attorney General of the United Kingdom issued a directive to newspapers and other media outlets to be careful as to what they would publish in relation to Mr. Quinlivan and he seeks discovery of that correspondence. To dispose of this point immediately, such adverse publicity as there may have been is now so long ago as not likely to pose any threat to the fairness of his trial, and so I can pass from it.

In the course of his affidavit, the appellant avers as follows:-

“I say and believe that the conspiracy charges in question arise out of a campaign of violence which was conducted by the Irish Republican Army (hereinafter the “IRA”) in England in 1990 during which, inter alia, Mr. Ian Gow M.P. was murdered, a former Governor of Gibraltar was shot and wounded and one soldier was shot dead and two soldiers wounded at Lichfield railway station. I further say and believe that in the course of their investigations into IRA activities in England, the police authorities there had earlier found a list of intended IRA targets, which included Sir Charles Tidbury, the person named as the intended

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victim of the alleged conspiracy to murder which forms the basis of the first charge in respect of which my extradition is being sought. I say and believe that the said Sir Charles Tidbury was allegedly a prominent businessman in England and former chairman of Whitbread, the brewers, which under his chairmanship was a major contributor to the funds of the British Conservative Party.”

Then he makes the case that he and another prisoner, Pearse McCauley, were approached by a prison officer at Brixton Prison, Prison Officer Marshall, and that he, having gone to considerable lengths to gain the confidence of the prisoners, told them that he would help them to escape.  This was first mentioned in December, 1990, or early 1991, when, according to the appellant, they were returning from a court appearance.  Later the prison officer advised them that the best time to effect an escape would be when returning from Mass on Sunday and he advised them as to what he believed was the weakest point of the prison’s perimeter wall. The appellant went on to depose:-

“He promised to supply us with a map of that section of the prison and to smuggle in a gun which he recommended would be essential to carrying out the plan he had suggested to us. He also said he could arrange for transport to be waiting for us outside the prison when we escaped. Prison Officer Marshall was transferred from Brixton before these arrangements were completed but I say that it was by utilising the plan suggested by him that we effected our escape on the 7th July, 1991.”

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He also says that Detective Sergeant Harrison of the Staffordshire police special branch was
involved with Prison Officer Marshall.  He says and believes that Alan Marshall was a former member of the SAS (Special Air Services) and was working as an informant for Detective Sergeant Harrison. Further, he claims that Prison Officer Marshall was acting as a spy and agent provocateur for the British anti-terrorist police or the security services, otherwise known as MI5, and was still a reservist in the SAS. He exhibits in his affidavit copies of certain publicity, from reputable British sources, suggesting that there was connivance by the authorities to facilitate his escape and that of McCauley.

The purpose behind this plot, seemingly, was that the police considered that they might be led to find out more about their possible accomplices in the terrorist crimes that the police were investigating.  

It is to advance this case that the discovery motion was brought in the High Court on behalf of the appellant. The documents sought to be discovered were described as follows in the notice of motion:7

(i)	The complete version of the report of the “Enquiry by the Chief Inspector of Prisons into the escape of two Category A prisoners from HMP Brixton on the 7th July, 1991” (The Tumim Report)

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(ii)	The report of the enquiry by Cohn Bailey, Deputy Chief Constable of Nottinghamshire Police, into the involvement of officers of the Staffordshire Police together with Prison Officer Alan Marshall in encouraging the applicant to escape from Brixton Prison.

(iii)	The report by Mr. Shuffrey into the role of Home Office officials in relation to the alleged escape of the applicant from Brixton Prison on the 7th July, 1991.

(iv)	The evidence given to, correspondence concerning, and conclusions of disciplinary proceedings against Mr. Brian Bubbear of the Home Office in relation to the alleged escape of the applicant from Brixton Prison on the 7th July, 1991. This enquiry was apparently conducted by Mr. D.E.R. Faulkner of the Home Office.

(v)	The evidence given to, correspondence concerning and conclusions of disciplinary proceedings taken against a number of prison officers in connection with the applicant’s alleged escape from Brixton Prison on the 7th July, 1991.

(vi)	The statement made by Prison Officer Alan Marshall and the transcript of a tape recorded interview between Mr. Marshall and a senior prison officer concerning his contacts in 1990 and 1991 with the applicant and Mr. Pearse McCauley, another prisoner in Brixton Prison, and his urging upon them that they should attempt to escape and his offers of assistance in relation thereto.

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(vii)	Details of any enquiry requested in 1991 by the then Home Secretary, Mr. Kenneth Baker, from Staffordshire Police into contacts between their officers and Prison Officer Alan Marshall in relation to alleged IRA prisoners and in particular to the applicant and Mr. Pearse McCauley.

(viii)	The report made by Mr. Reg Withers, Governor of Brixton Prison. to the Home Office in early 1991 concerning Prison Office Alan Marshall and his dealings with the applicant and Mr. Pearse McCauley, another prisoner in Brixton Prison.

In the course of an affidavit (filed on behalf of the respondents) Detective Constable Clive Robinson of the Metropolitan Police, New Scotland Yard, London, gave a full background to the offences in respect of which the return of the appellant is sought, including the prison escape, but in the course of that affidavit there is no denial of the allegation that his escape was facilitated in the way that the appellant has deposed.

The issue as it appears to me that arises for resolution in this appeal, therefore, is of what relevance are the documents sought to be discovered in the light of the failure to deny the appellant’s essential assertion that his escape was facilitated by the authorities?  If that is accepted by the High Court. When it comes to hear the substantive matter, that may well help to advance his submissions that the offences in respect of which he is being sought are

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political offences, or offences connected with political offences. He has also, of course, advanced other grounds for submitting that the offences are of such a character. Further, there is an even more fundamental point which is this: if a requesting authority, through its servants or agents, has facilitated the escape of a prisoner, how can it be said that it is entitled to seek his return in all justice and equity? While this situation is not expressly covered by s. 50 of the 1965 Act, it is within the High Court’s inherent jurisdiction to deal with it.

I should emphasise, however, that I regard the charge in relation to Mr. Kemp as something distinct and separate from the other charges. According to the detective constable’s affidavit, Mr. Kemp was attacked after the escape; he was an ordinary citizen driving along in his motor car when his car was hijacked and he was shot and wounded.

The learned High Court judge held that the documents sought by the appellant were not in the possession or power of the respondents. It is clear that the documents specified in the notice of motion are not in fact in the “possession” of the garda officers who are named as respondents in both the proceedings and in the motion. Even if one were to assume in favour of the appellant that the respondents are the “agents” of the British authorities in whose possession the documents now are (and I am not so finding) that relationship clearly would not place the physical custody of the documents with

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the respondents. Nor would the relationship (if it existed) give to the respondents the enforceable legal right to obtain those documents which, as has been held by this Court in Bula Ltd .v. Tara Mines [1994] ILRM 111, is necessary to establish that documents are within the “power” of a party or person for the purposes of Order 31, r. 11 of the Rules of the Superior Courts.

If the appellant had sought to rely upon the alleged relationship so as to procure discovery by the British government or other authority having possession or power in respect of the specified or any other document which might be relevant on the basis of the principle established in Willis v Baddeley [1892] 2 QBD 324, or some extension of that principle, the notice of motion and perhaps the substantive proceedings would require significant amendment. This problem was anticipated by counsel on behalf of the appellant who in their written submissions dealt with the difficulty in the following terms:-

“If the real bar to obtaining discovery here is that the requesting authorities are not designated parties to the action and have not been duly served, then leave should be given to appropriately amend the title to these proceedings and the matter should be remitted to the High Court.” 

Apart from the obvious difficulties in identifying and making what might be appropriate amendments at this stage, the reality of the application is that the

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appellant has been unable to establish the relevance of the documents sought to any live issue in the litigation or how any of the documents might advance his case having regard to the absence of conflict on the matters of fact asserted by Detective Constable Clive Robinson in the affidavit sworn by him.

Accordingly, I would dismiss the appeal.