THE SUPREME COURT
Record No. 2000/35
Murphy, J.
Murray, J.
Geoghegan, J.

BETWEEN
ARNOLD MALLOWS
Applicant/Respondent
AND
THE GOVERNOR OF MOUNTJOY PRISON, IRELAND
AND THE ATTORNEY GENERAL
Respondent/Appellants
Judgment delivered the 31st day of July. 2001 by Murray. J.

This is an appeal against the Order of Mr. Justice O’Donovan made on the 28th January, 2000 in which the learned High Court Judge made an Order pursuant to Section 53 of the Extradition Act, 1965 discharging the Applicant from the custody of the First-Named Respondent in Mountjoy Prison where he had been detained on foot of two warrants issued by the District Court pursuant to Section 47(1) of the Extradition Act, 1965 ordering his delivery into custody of a member of a police force in England and Wales. These two warrants along with a third warrant (which was subsequently withdrawn) were issued by the District Court on the 10th May, 1999 and concerned offences alleged to have been committed in England and Wales between 1992 and 1996.

Section 53 of the Extradition Act, 1965 provides as follows:-

“If the person in respect of whom an order has been made under Section 47 is not delivered up under the order within one month after it was made the High Court, upon

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 application by or on behalf of that person may, unless reasonable cause is shown for the delay, order him to be discharged”.

Facts:

As appears from the chronology of events which I set out below, the Applicant was not extradited within one month of the making of the District Court Orders. Although the District Court Order was made on the 10th May, 1999 the focus of this appeal is centred on the period from the 16th June, 1999 when an application for judicial review to the High Court by the Respondent in respect of those Orders was refused and the 20th January, 2000 being the date on which he initiated these proceedings in the High Court.

The proceedings initiated in the High Court on behalf of the Respondent sought a conditional order of habeas corpus on the grounds that he was being unlawfully detained because he had not been delivered up to the authorities seeking his extradition within one month from the making of the District Court Order as required by Section 53 of the Extradition Act 1965 and there was no reasonable grounds for such delay. When the matter was heard and determined by the High Court the application for habeas corpus was deemed, presumably with the consent of the parties, to be an application for his discharge pursuant to section 53 of the Act.

The High Court ordered the discharge of the Respondent pursuant to that section on the grounds that there was delay in delivering up the Respondent pursuant to the District Orders which greatly exceeded the period of one month within the meaning of Section 53 and that the State had not shown reasonable cause for the delay. While the learned High Court judge held that Section 53 conferred a discretion on the High Court to refuse to discharge the Respondent even where no reasonable cause was established for the delay, he concluded in

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the circumstances of the case that that discretion should be exercised in favour of discharging him.

It is against that Order of the High Court that the Appellants appeal.

Chronology of Events:

The essential facts of the case are not in dispute and the agreed chronology of events are as follows:

(a)	22nd January, 1999:

The Respondent was arrested on foot of three warrants issued by an appropriate authority in England and Wales in respect of offences alleged to have occurred between July 1992 and July 1996. Although granted bail he was not in a position to avail of it and remained in detention on foot of those warrants until the determination of the application to the District Court for Orders for his extradition.

(b)	10th May, 1999:

The District Court made three orders on foot of the three warrants for the delivery of the Applicant into the custody of a member of the Hertfordshire constabulary in the United Kingdom. The committal warrants were expressly addressed to the Superintendent of an Garda Síochana at the Bridewell Garda Station and provided that the Applicant was to be delivered into the custody of a member of the Hertfordshire constabulary and further ordered that the Applicant be lodged in Mountjoy prison, there to be detained by the Governor for a period of not less than fifteen days from the date thereof until the date of

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his delivery as aforesaid and for any other period as may be “necessary according to law”. The Respondent was not represented before the District Court, his solicitors having earlier withdrawn from the case. He remained in custody in Mountjoy until discharged by the Order of Mr. Justice O’Donovan.

(c)	15th May, 1999:

The Applicant instituted proceedings seeking judicial review of the District Court Orders. By letter of the 15th May, 1999 the Governor of Mountjoy prison alerted the Chief State Solicitor of that application to the High Court. This application was not accepted by the Registrar of the High Court for want of form.

(d)	29th May, 1999:

The Applicant again applied to the High Court for a judicial review of the District Court Orders. The making of the said application and its contents were notified by the Governor of Mountjoy prison to the Chief State Solicitor by letter of the same date.

(e)	16th June, 1999:

By letter of this date, the Applicant was informed by the Registrar of the High Court, via the prison authorities, that his application for judicial review had been refused by an order of Carney, J. A copy of that letter was placed on the Respondent’s prison file.

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(f)	6th December, 1999:

By letter of this State the Respondents English solicitors wrote to the extradition unit, Garda Headquarters, of which the following is a relevant extract: “We act on behalf of the above named who is presently on remand at Mountjoy prison awaiting extradition. Indeed our client has appealed against the earlier decision made by the lower Court and is waiting a hearing date. Having regard for the fact that the prosecution in the United Kingdom will not now be pursuing the first count against our client, he has decided to withdraw his appeal, with immediate effect and consents to his formal extradition. Accordingly we would ask that arrangements be made, enabling our client to return and to be placed before the Watford Magistrate Court”. By letter dated 7th December the English solicitors wrote substantially to the same effect to the Chief States Solicitors Office.

(g)	15 December, 1999:

By letter of this date the English Solicitors wrote again to the Chief State Solicitor stating “we are anxious to have their client returned to the High Court so that formal consent can be obtained for this extradition.” In addition they stated that having discussed the matter with the officer in charge of the case at Hertfordshire constabulary “it has been agreed that subject to approval from Dublin, my client will be extradited back to the United Kingdom on Thursday 6th, January, 2000. ... Would you be kind enough to confirm that arrangements can be now be made for the formal Extradition Order to be made for the date referred to above.”

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(h)	21 December, 1999;

By letter of this date the Chief State solicitor responded to the English solicitors letters of 7th and 15th December stating that it had been ascertained that “Mr. Mallows does not have any High Court proceedings in existence, the same having been dismissed by Carney, J in the High Court;” and “the United Kingdom authorities no longer wish to proceed on Warrant B.” The letter then went on to state that it was intended to return to the District Court “at the earliest date possible to have warrant B discharged” and that arrangements would be put in place for the Respondents extradition as soon as possible after that event.

(i)	7th January, 2000:

The Order by the District Court in respect of Warrant B was struck out.

(j)	20th January, 2000:

A conditional order of habeas corpus was granted to the Respondent.

The Affidavit filed on behalf of the Chief State solicitor in these proceedings acknowledges that notification of the application for judicial review was received from the Governor of Mountjoy prison. Having received notification from the Governor of Mountjoy of the second application for judicial review, which of course was an ex-parte application, the State solicitor, following an enquiry from the Extradition Section of An Garda Síochana, contacted the Registrar of the High Court whom the State solicitor says advised him that there was no record of any proceedings having been instituted but that it was possible that as it

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involved a personal applicant it may have been given to another Registrar and may not yet have been listed. The State solicitor explained that normally when documentation is received from the prison authorities pertaining to an application for judicial review by a personal applicant, the Office of the Chief State solicitor does not take any action in the matter until such time as it is notified that the matter is listed in the non-jury motion list for a particular Monday. No further enquiries were made concerning the status of the Respondent’s application to the High Court by the Chief State solicitor until the letters referred to above were received from the Respondent’s English solicitors in December, 1999. It was only at that stage that the Chief State Solicitor’s office ascertained that there were no High Court proceedings in being and that they had been dismissed by Carney, J. on 16th June, 1999. So far as the Extradition Section of An Garda Síochana was concerned, it had learned on 8th June, 1999 that the Respondent had made an application for judicial review. It appears that from that point on the Extradition Section was awaiting further instructions. Nothing happened until they received the letter dated 6th December, 1999 from the Respondent’s English solicitors.

The Issues:

In the High Court, the learned High Court judge ruled that the word “may” in the phrase “... may, unless reasonable case is shown for the delay, order him to be discharged” to be found in Section 53 of the Act should be interpreted as a permissive or enabling expression which allowed the Court a residual discretion whether or not to grant a discharge of the person concerned even where reasonable cause is not shown for the delay involved. Having so ruled the learned High Court judge then proceeded to exercise that discretion in favour of discharging the Respondent having regard to the circumstances of the case and in

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particular that the Respondent had spend six months in jail in this country which he would not have otherwise spent by reason of that delay.

Although there are numerous specific grounds in the notice of appeal all of them are concerned with the manner in which the learned trial judge exercised that discretion and none of them refer to the learned trial judge’s ruling on his interpretation of the word “may” in Section 53. This is not surprising since it was a ruling in favour of the Appellants. There is no cross appeal.

Both parties in their written and subsequent oral submissions addressed the question as to whether the term “may” should be interpreted in its broader and permissive sense or whether it should be interpreted in a mandatory sense requiring the High Court to release the Respondent once no reasonable cause had been shown for the delay. Notwithstanding this and having regard to the fact that the interpretative point was not made the subject of appeal it seems to me that the proper approach to this appeal is to address first the substantive ground of appeal concerning the exercise by the learned High Court judge of his discretion. It is questionable whether it would be appropriate at all to address an issue concerning the construction of the section when it was not the subject of an appeal but in any case I do not consider it should be addressed unless for exceptional reasons it is necessary to do so in order to do justice to the parties.

Discretion of the Court:

The finding by the learned High Court judge that reasonable cause for the delay had not been established was not contested by the Appellants nor indeed could it have been. Neither is it in issue that the delay in rendering the Respondent to the United Kingdom authority prior to the 20th June, 1999 had been properly explained because it was reasonable

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for the State to refrain from seeking to implement the District Court Orders while judicial review proceedings were pending and up to the date when the time for appealing the refusal of the High Court expired. This was the 2Oth July, 1999. What is in issue is the consequence of the unjustified delay in implementing the District Court Orders from that date to January, 2000.

It was submitted by the Appellants that general discretion given to the High Court by Section 53, even in circumstances in which reasonable cause has not been established, means that the court must consider the circumstances of the case as a whole before deciding whether to discharge the Respondent.

One of the circumstances relied upon by the Appellants as a ground upon which the learned High Court judge ought to have exercised his discretion not to discharge the Respondent is the belief which existed at all times on the part of the Chief State solicitors office that there was pending before the High Court a judicial review of the District Court Order. It was submitted that the Respondents in acting upon that belief, behaved reasonably, albeit upon a misplaced assumption.

In addition to the foregoing factor it was submitted that this incorrect assumption could have been corrected by the Applicant himself. The Applicant had provided no explanation as to why he did not correct that misapprehension on the part of the State. It was submitted that in such circumstances it was difficult to see how a discretion could be properly exercised in the absence of any explanation from the Applicant on this point.

This is a rather audacious submission on the part of the State. First of all it was known that the Respondents application to the High Court was lodged on the 29th May, 1999. Secondly the Order of the High Court refusing the application was transmitted to the prison authorities and thereafter remained on the Respondents file in the prison. Thirdly,

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between June 3rd and December 20th approximately no enquiry was made by the Office of the Chief State Solicitor as to the status of the 29th May proceedings. There was no proper basis for assuming in those circumstances that the application to the Court was still in being. In those circumstances, and for the reasons I refer to later, it hardly lies on the State to rely on a failure of the Respondent to correct a wrong impression which the State should not have relied on in the first place.

Moreover, the Extradition Acts 1965 to 1994 lays down clear rules and procedures by which persons may be arrested and brought before the Courts for their rendition to the United Kingdom to stand trial. Such persons enjoy the presumption of innocence which applies to all citizens. Section 47 (1A), as amended by the Extradition Act 1994, provides that a person who has been the subject of an order under that section shall, subject to certain exceptions, be brought by the Garda Síochana as soon as may be to a point of departure from the State and there delivered into the custody of a member of the police force of the place in which the warrant concerned was issued. That subsection and Section 53 in my view reflects a public policy discernible from the Extradition Acts that persons subject to extradition or rendition procedures should, subject to certain savings in respect of the initiation of court proceedings, have their cases dealt with expeditiously and at least within one month of the making of an order under Section 47, unless reasonable cause is shown for delay. One of the underlying reasons for these two provisions is perhaps the fact that a person who is in custody awaiting extradition or rendition after the making of a District Court Order is in a form of detention which is no longer subject to routine supervision by the courts even though he or she has not been convicted of any offence. A citizen who is detained pending trial is subject to a range of legal provisions which govern when he or she must be brought back before either the District Court or the Court of trial. On the other hand an unconvicted person in detention awaiting

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extradition is effectively dependent on the administrative arm of the State to ensure that he or she is not kept in custody any longer than is necessary to effect surrender to the authorities seeking rendition or would be, but for Section 23. Here the Oireachtas have chosen to protect the right of a person in custody awaiting extradition to be kept in custody for no longer than is necessary or at least no longer than one month unless there is justification for doing so. The Constitution guarantees that no citizen shall be deprived of his personal liberty save in accordance with the law. In my view Section 53 requires the State to ensure that persons who are the subject of an order for extradition or rendition are not kept in custody for a period longer than one month unless proceedings have been initiated under Section 50 of the 1965 Act or there is other good reason for doing so. Section 53 also has the effect of respecting all individual’s right to a speedy trial where he or she is being detained by the State for the purpose of being put on trial even if that trial is to take place outside the jurisdiction. The State has a duty to vindicate those rights.

In this case the Respondent’s application for judicial review was refused on June 16th 1999 and the order of the High Court languished on his prison file from that date without any step being taken by the State authorities until they were written to by his English solicitors in mid December of that year.

The State were also aware that the Respondent was not legally represented and had not been since his solicitors discharged themselves prior to the making of the District Court Orders. The State sought to seek some comfort from the fact that the Respondent had English solicitors acting for him as and from 2nd December. However, it is clear that their primary concern was the English proceedings pending before the Courts in that jurisdiction and that they did not know or really understand what was happening with regard to the proceedings in

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Ireland until apprised of the true situation by the office of the Chief State solicitor when it finally made enquiries in December, 1999.

In my view the learned High Court judge was correct finding that as a result of the inaction by the State, the Respondent spent six months in jail in this country which otherwise he would not have had to spend.

The duty of the State to ensure that procedures under the Extradition Acts are carried out properly is not diluted by the fact that a person, in the situation of the Respondent, through ignorance or otherwise, does not make an application under Section 53 at the earliest possible moment. Accordingly, the submission that the learned High Court judge exercised his discretion wrongly because, as it was put, the instrument by which the Respondent might shorten his custody lay in his own hands must be rejected. I would simply add that this argument has resonances of the argument made in the State (Quinn) v Ryan [1965] I.R. 70 that there is a constitutional right of resort to the courts but only if one specifically asks for it and which was roundly rejected by this Court.

It was also submitted on behalf of the Appellants that the correspondence from the English solicitors in December in some way constituted an acquiescence by the Respondent to being extradited notwithstanding the failure on the part of the State to respect Section 53 of the 1965 Act. For many of the reasons already stated above I do not consider there is any substance in this submission. Apart from the fact that the concern of the solicitors, situated in England, were primarily the charges which the Respondent would face on return to England and that they were clearly unaware of precisely what had happened to the Respondent in this jurisdiction, their approach, no more than that of the Respondent himself, could not absolve the State from the duty to observe the law.

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Finally, the Appellants relied on an unreported judgment of the Queen’s Bench Division of England of Wales (29th October, 1997) entitled Re Lindley for the proposition that one of the factors to be taken into account, and which the learned High Court Judge failed to take into account in the exercise of his discretion, was the principle of international comity. While in that case it was held that there could be no question but that the requirements of international comity in the general sense could not be regarded as within the scope of the phrase “reasonable cause for the delay” (in a corresponding section in the English Act) the Court felt it could be taken into account when exercising the broader discretion even in the absence of reasonable cause for delay.

For their submission the Appellants relied on a statement of Kennedy L. J. in that case that “... damage to international relations is done if in a situation like this, because of a technicality, an offender or an alleged offender is not sent back to the Republic of Ireland (sic) to stand trial in circumstances where that, in reality, would appear to be the proper outcome.” It was acknowledged in that judgment that the relevance of international comity depends on the circumstances of the case. In that case delay was stated to be result of an administrative error involving a delay often days when the person concerned was not in custody. Even in its own terms that judgment cannot be compared in my view to the situation in this case. What happened here is no mere technicality. In any case the principle or notion of international comity is not applicable so as to override clear obligations created by statute. (see Halsbury’s Laws of England, 4th edition). Moreover, the duty of the State in the circumstances of this case is owed to the law and the Constitution, concerning as it does the liberty of the individual and it cannot be qualified by such a principle.

What happened in this case is that there was a breakdown of the State system, in so far as there was one, for giving effect in accordance with law to the procedures for the

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implementation of orders for the rendition or extradition of persons pursuant to the Extradition Acts 1965-1994. Those directly concerned were in the difficult position that the nature of the application made by the Respondent-to the-High Court was ex-parte without notice to the State Authorities. However, they were aware that such an application had been made and that it had come to an end on June 16th, 1999 with an order to that effect on the Respondents file in Mountjoy prison. No steps were taken to ascertain or monitor the situation or to ensure that proper procedures required by the 1965 Act were followed. There clearly was an absence of a centrally established system for dealing with this kind of situation. The unhappy result was that the Respondent spent six months in custody through the fault of the State.

Approaching Section 53 of the Act as interpreted by the learned High Court Judge, in my view he acted correctly and within the bounds of his discretion in discharging the Respondent pursuant to Section 53. In my view there were no redeeming or countervailing factors which would have allowed him to exercise his discretion in any other way.

The broad construction given to Section 53 by the learned High Court judge as to the degree of discretion which he may exercise in the application of the section was the most favourable one from the point of view of the Appellants. Even on this basis, for the reasons stated above, the appeal of the Appellants must fail.

In these circumstances the question whether Section 53 should be interpreted as meaning that the learned High Court judge had no discretion but to discharge the Respondent once he found that no reasonable cause had been shown for the delay need not be addressed. Furthermore, as I indicated at the outset, it is an issue which was not the subject of the Appellants notice for appeal or a cross appeal by the Respondent.

I would dismiss the appeal.