Extradition General

Table of Contents

Cases

The Attorney General v Daniel Paul Matache

[2015 No. 85 EXT]

High Court

4 December 2019

unreported
[2019] IEHC 848
Mr. Justice Binchy

December 04, 2019

JUDGMENT
1. By this application, the applicant seeks an order for the extradition of the respondent to Switzerland in accordance with the provisions of the Extradition Act 1965 (the “Act of 1965”). The extradition of the respondent is sought in connection with a number of offences allegedly committed by the respondent in Switzerland on 9th March, 2012. Specifically it is alleged that the respondent committed the following offences: –

Attempted homicide, attempted intentional homicide, serious assault, common assault, coercion, disruption of public traffic and serious traffic infraction.

2. The request for extradition was received by the applicant on 22nd December, 2014. The Minister for Justice completed a certificate for the purposes of s. 26(1)(a) of the Extradition Act 1965, on 18th May, 2015. This Court (Donnelly J.) issued a warrant for the arrest of the respondent on 21st May, 2015. The respondent was arrested and brought before this Court on 23rd April, 2019. Points of objection were filed on behalf of the respondent on 5th June, 2019, and the application proceeded before this Court on 10th October, 2019.

3. Whilst eight issues are raised by the points of objection, just one was pursued at the hearing of this application. That objection is that the surrender of the applicant is sought for the purposes of investigation, and not for the purpose of proceedings against the respondent as required by s. 9 of the Act of 1965, which provides: –

The respondent’s argument was grounded upon advices received by the respondent’s solicitor from lawyers in Switzerland, as well as on information furnished by the Public Prosecutor in Lugano, who has a responsibility for the matter in Switzerland.

Facts as stated in the warrant of arrest and the extradition request
4. In the warrant of arrest dated 15th November, 2013, it is alleged on 9th March, 2012, the respondent and others assaulted a named individual as an act of revenge. The assault concerned was carried out in a public place, and the assailants, of whom it is alleged the respondent was one, were armed with golf clubs and knives. They beat the victim repeatedly. It is alleged that the assailants wanted to kill the victim, but did not achieve that objective because they were disturbed by third party activity.

5. The warrant of arrest summarises the evidence which comprises statements taken from the victim and his girlfriend (who was with the victim at the time of the assault), the wounds suffered by the victim, subsequent telephone tapping of telephone conversations of the respondent and others and forensic evidence.

6. The facts as summarised above are again repeated in the extradition request issued by the Public Prosecutor to the applicant. Both documents also record that the assailants, including the respondent, immediately left Italy and from there went onwards to Romania (the respondent is a Romanian national).

7. The request for extradition also records that one of the assailants has already been found guilty of attempted homicide in connection with these events and was sentenced on 14th June, 2013. In a letter to the applicant of 20th August, 2019 (addressing questions put to Swiss lawyers engaged by the solicitors for the respondent (which I address below) and the responses of the Swiss lawyers thereto) the Public Prosecutor states that because the respondent fled Switzerland immediately after the events concerned, it was never possible to arrest and/or interrogate him. He goes on to say: –

“Nevertheless, on March 9th, 2012, the Public Prosecutor’s Office immediately opened an investigation ( Art. 309 CPP) against both Matache Daniel Paul and his accomplices Gudi Calin and Began Christian Marian. The investigation ended on December 18th, 2012, not only against Gudi Calin (sentenced on June 14th, 2013 to 10 years of imprisonment) and Began Christian Marian (still on the run), but also against Matache Daniel Paul, assuming all evidence and objective findings against him. Evidence that could not be contested to him as he is still on the run.”

Advices of Swiss lawyers
8. By letter dated 7th June, 2019, Michael J. Staines and Company, solicitors for the respondent wrote to a firm of lawyers in Geneva (Mentha Avocats) seeking advices for the purposes of this application. They posed a number of very specific questions and, having received replies thereto, they referred both questions and replies to the applicant for comment. In turn, the applicant referred the questions and replies to the Swiss Public Prosecutor for comment. To the extent relevant for this judgment, the questions and replies of the Swiss Lawyers, and the comments of the Public Prosecutor may be summarised as follows: –

(1) Does the Swiss Criminal Justice system have a separate investigation stage and trial stage? The Swiss lawyers confirmed that it does, and the Public Prosecutor, in its comment on this reply, confirmed his agreement with this answer.
(2) How does a case move from the investigation stage to the trial stage? The Swiss lawyers advised that upon completion of the investigation, the Public Prosecutor has two options. The first is to issue an order of abandonment of the proceedings, and the second is to bring charges before the competent court, based on the results of the investigation. They further advised that on receipt of the indictment, the proceedings become pending before the court, and this marks the beginning of the trial phase. The Swiss Prosecutor indicated his agreement to this answer, without qualifications.
(3) Who makes the decision that the suspect should be put on trial? The Swiss lawyers advised that this is a decision to be made by the Public Prosecutor, whose decision cannot be challenged. Again, the Public Prosecutor agrees with this answer.
(4) Has the investigation stage of Mr. Matache’s case concluded?
(a) The Swiss lawyers advised that in their opinion, the investigation stage of the case has not been concluded. They advanced two reasons for this conclusion. The first is that the Swiss Criminal Procedure Code requires that:-
“In extensive and complex preliminary proceedings, the public prosecutor shall question the accused again in a final examination hearing before concluding the investigation and request the accused to comment on the findings. (Article 317 S Crim PC).”

They further advised:-
“Moreover, according to Article 318(1) S Crim PC relating to the conclusion of the proceedings, if the Public Prosecutor regards the investigation as completed, it shall issue a summary penalty order or give written notice to those parties whose address is known of the imminent conclusion of the investigation and inform them whether it is intended to bring charges or abandon the proceedings.”

The Swiss Lawyers also referred to a letter issued by the Swiss Federal Department of Justice to the applicant herein, dated 31st July, 2014, whereby the extradition of the respondent is requested. In this letter it is stated that: “ the Public Prosecutor’s office of the Canton of Tessin is conducting an investigation against the above named person ”. The same letter however, concludes in the following terms: “ We hereby formally request the extradition of the above mentioned person to Switzerland for the prosecution of this matter ”.

Finally, the Swiss lawyers rely on the fact (agreed by the applicant herein) that no formal order of conclusion of investigation has been issued, and nor has any indictment or formal order bringing charges issued.
(b) In a comment on this conclusion (that the investigation phase is not concluded), the Public Prosecutor states that the opinion of the lawyers is “ wrong ”. In reply to the question (has the investigation stage concluded?), the Public Prosecutor states:-
“as indicated in the foreword, the preliminary proceedings of Mr. Matache Daniel Paul are concluded, even if no charges against him have been brought and the indictment has not been issued yet. To make that happen, Matache Daniel Paul will have to challenge all the evidence taken in the preliminary proceedings and this is in his own interest and in respect of the right to be heard (Art. 3 par. 2 lett. c CPP and Art. 107 CPP)”.

(5) Is a decision to put Mr. Matache on trial dependent on further investigation being carried out?
(a) The Swiss lawyers replied that, according to the Swiss Criminal Procedure Code, the parties, notably the suspect, have the right to be heard. This arises under Article 107 of the Code and includes the right to participate in procedural acts, the right to comment on the case and on the proceedings and the right to request that further evidence be taken. Furthermore, under Article 317 of the Code, where serious offences are involved, the suspect is heard in a final examination hearing before concluding the investigation. In the opinion of the Swiss lawyers therefore any decision to put the respondent on trial must be preceded by these steps.
(b) In his response, the Public Prosecutor states that the conclusions of the Swiss lawyers are not entirely correct. He agrees that Article 107 of the Code applies and he says that “ before the issuing of the indictment, all the evidence taken in the preliminary procedure will be contested to Matache Daniel Paul and this in his own interest (sic) and in respect of the right to be heard ( Art. 3 par. 2 lett. c CPP and Art. 107 CPP). It is therefore not a question of “carrying out further investigations”, but only of carrying out this fundamental investigative measure, without which it is not even possible to proceed in absentia. Matache Daniel Paul has always knowingly escaped from this investigative act, so the current objections of Mentha Avocats are specious .”
(6) Has there been any formal decision being (sic) made to put Mr. Matache on trial?
a) The Swiss lawyers advised that no formal order announcing the conclusion of the preliminary proceedings have been transmitted by the Swiss authorities to the Irish authorities. They further state that no formal indictment has been transmitted either, and it can reasonably be assumed that had an indictment been issued, it would have been transmitted to the Irish authorities.
b) The Public Prosecutor confirms that an indictment has not yet issued and states that this is for the reasons already “ widely explained ”. By this I understand him to mean that it is first necessary for the prosecutor to afford the respondent the opportunity to be heard in accordance with Article 107 of the Swiss Criminal Code. He makes no reference to Articles 317 and 318 of the Code.
Submissions
9. In simple terms, it is submitted on behalf of the respondent that the information received from the prosecutor, coupled with the advices received from the Swiss lawyers make it clear that not only has the Public Prosecutor not issued an indictment against the respondent, nor has he made any decision to issue an indictment. Moreover, it is submitted that the information received makes it clear that there are two separate and distinct phases in the criminal justice system in Switzerland, the investigation phase and the trial phase. It is submitted that the information received from the prosecutor further makes it clear that the proceedings, have not yet moved from the investigation to the trial stage, and the Swiss lawyers have so advised. All of that being the case, the extradition of the respondent is precluded by s. 9 of the Act of 1965, and the respondent relies upon the decision of the Supreme Court in Attorney General v. Pocevicius. [2015] IESC 59. While I will deal with this case in more detail below, counsel for the respondent refers and relies in particular on the following passages from the decision of McKechnie J. in Pocevicius:-

“48. (1)

• A person should be surrendered if the purpose of the request is “to prosecute”, that is, to put him on trial for the subject offence.
• Where such prosecution proceedings are in being, that will be a sufficient compliance with this requirement.
• Where such proceedings are not in being the intention to prosecute must be founded on the existing evidence, as known at the time of the request.
• Where such proceedings are not in being an intention to charge only is not sufficient: in addition, there must be a decision to try, i.e. to put the individual on trial.
48. (3)

• What is required however is that the decision to prosecute is not contingent or otherwise dependent on any further investigation producing evidence without which no such decision could justifiably be made.
• The investigation must therefore have reached a level whereby there exists sufficient evidence in the opinion of the competent prosecution authority upon which the extradited person can be charged and tried and further that a decision to do so has in fact been made. …
50.

It can, I think, be specifically and definitively stated at a general level, that a person will not be extradited unless, at the time of the extradition request, the requesting country have a fixed intention to ‘charge’ the suspect with the offence(s) specified in the warrant. By the word ‘charge’ I mean that the subject individual is no longer simply a ‘suspect’ in the crime under investigation, but rather his status is then one of ‘an accused’ as these terms are understood in Irish law.”

10. Counsel for the respondent submits that in spite of being asked very direct questions on the issue, the prosecutor has failed to answer the questions as to whether (a) any decision to issue an indictment against the respondent has been made or (b) whether or not it is his intention to issue such an indictment. Moreover, it is submitted that under the Swiss Criminal Code, the Public Prosecutor is obliged, pursuant to Article 318 thereof, when an investigation is completed, to issue a summary penalty order or to give written notice to those parties whose address is known of the imminent conclusion of the investigation, and to inform such parties as to whether or not it is intended to bring charges or abandon the proceedings. The assertion of the Public Prosecutor that the investigation has been completed is at odds with the failure to serve such a notice. While it might have been impossible for the authorities to serve such a notice while the respondent was at large, and his address was not known, there is no reason why the notice could not have been served once the Swiss authorities became aware of his location.

11. It is submitted on behalf of the respondent that the Court cannot draw inferences from the information received from the Public Prosecutor that a decision to charge the respondent has been made. The Public Prosecutor himself has failed to give a clear answer to this question, notwithstanding that he was asked the question very clearly by the applicant. Accordingly, it is submitted, the extradition of the respondent should be refused.

12. Counsel for the applicant on the other hand submits that the Public Prosecutor has clearly stated that the investigation stage of the proceedings is over, and that the only reason that an indictment has not yet been issued is the need to afford the respondent his entitlements under Article 107 of the Swiss Criminal Code to comment on the case against him, to request that further evidence be taken and to contest the proceedings. The Prosecutor has been unable to move the proceedings forward to indictment stage by reason of Article 107 of the Swiss Criminal Justice Code. Until that occurs, an indictment cannot be issued.

13. The applicant also relies on the decision of the Supreme Court in Pocevicius, which, he submits, is on all fours with the circumstances of this application, and in which case the Supreme Court was satisfied that an order for the extradition of the respondent could be made. Counsel for the applicant refers to the following passages from the decision of McKechnie J.: –

“53. The request for Mr. Pocevicius’s extradition cannot, in the sense in which the relevant terms are used in extradition law, be said to be for the purpose of ‘investigation’ or of ‘continuing the investigation’. The reason why an indictment has not issued is that under Norwegian law it is a requirement, at least to the standard of best prosecution practice, that before making a final decision in that regard, the subject person should be given an opportunity of making a statement or of putting forward his version of events, so that the police or the court as the case may be, can assess what it says in light of the evidence which has already been accumulated. If, as is his right, he fails or refuses to offer any information, then the evidence as it stands will be submitted to the Director General by the Public Prosecutor with the recommendation that an indictment should issue. If he makes a statement, then depending on its content and what any follow-up inquiries may lead to, the case may be discontinued or it may still be submitted for final decision. But the crucial point is that if nothing emerges from such an interview process, the Director General, based on what is presently available, will be advised to issue an indictment, though the investigation is still open but only so as to offer the respondent an opportunity of disputing, rebutting or challenging existing evidence ‘but not for any other specific purpose’: In particular, not for the purpose of obtaining additional evidence upon which the ultimate decision might rest.

54. Given the diversity of systems which the 1965 Act was intended to accommodate, I am perfectly satisfied that what has been described herein as remaining to be done, so as to complete the investigative process, is entirely consistent with the provisions of the Act and the policy and the objectives behind it: Accordingly, in my view, this point does not constitute any bar to extradition.

55. The prosecution process must be looked upon as a continuum. In a case such as this, it involves the various stages the police, the public prosecutors and the Director General. It has passed through the hands of those who make the inquiries, conduct the investigation and accumulate the evidence: This part of the process is thus at an end, subject only to interviewing the respondent if extradited, and any further inquiries arising therefrom, or which they may be asked to undertake. Their final act was to transfer the case to the Public Prosecutor with a recommendation as to its future course. This therefore, subject to the aforesaid, terminates the involvement of the police with this case.

56. The Public prosecutors have advanced the process as much as they have authority to do so. They have assessed and evaluated the evidence. They have formed a view on it. In their opinion, it is of such a character as would sustain and support an indictment. They have made a recommendation to the Director General to this effect. They do not have power to go any further. Is the fact therefore that the ultimate decision to prosecute has not yet been taken fatal to this application? This is the end point of issue number one.

57. Despite the extensive documentation ultimately submitted, there is no reference whatsoever as to what view the Director General might take if the evidence remains as it is. Nor is there any indication of a pattern or course of conduct as to what his decision might be in similar circumstances, where such a recommendation has been made…

58. There is no question of the Director General being able to activate or re-activate any further part of the investigative process other than to interview the respondent in the manner and for the purposes, above described. Therefore, in the absence of further evidence emerging, the options open to him are either to endorse the recommendation or to decline to do so. If it should be the latter, then the prosecution proceedings, such as they are, will be at an end. If it should be the former, an indictment will be made. In such circumstances, the entire process, looked at as a whole, can be regarded as being in compliance with s.9 of the 1965 Act and one must thus conclude that the requesting state ‘are proceeding against’ Mr. Pocevicius for the offence in question”.

Discussion, Further Information, Further Submissions
14. As mentioned above all formal requirements of the Act of 1965 in respect of requests for extradition have been satisfied, and this is accepted by the respondent. The respondent contests this application on one ground only and that is that the requirement in s. 9 of the Act of 1965 that the respondent be a person who “ is being proceeded against ” in the country seeking his extradition, has not been met, because, it is argued, the investigation stage of the case has not concluded and no decision has been taken to put the respondent on trial. The respondent relies upon the opinion of the Swiss lawyers that the investigation has not concluded, the fact that charges have not been brought and that in response to a direct question as to whether or not a decision had been taken to indict the respondent, the Public Prosecutor failed to confirm that this is so.

15. Both parties place reliance upon the decision of the Supreme Court in Pocevicius. In that case, the Kingdom of Norway sought the extradition of Mr. Pocevicius. The evidence established that the prosecution system in Norway has three levels to it, the first involves the police as prosecuting authority, which is charged with the responsibility of leading investigations and, in limited circumstances, the prosecution of offences. Serious cases however must be transferred to the Public Prosecutor upon the conclusion of the police investigation. This is the second level. The Public Prosecutor may bring ‘indictments’, subject to certain exceptions which are reserved solely to the Director General, the third of the three levels. The Director General brings indictments in the most serious crimes, and when these cases reach him, they come with a recommendation from the Public Prosecutor. The case of Pocevicius fell into the latter category and accordingly it was a matter for the Director General to make the final decision as to whether or not to indict Mr. Pocevicius. The proceedings against Mr. Pocevicius had arrived at the point where the Public Prosecutor had made a provisional assessment to the effect that, based upon the existing evidence, grounds existed for the issuing of an indictment. However, the final decision to bring forward an indictment rested with the Director General, and this decision had not been taken because it was first necessary to question the respondent in that case.

16. The court in Pocevicius had the benefit of an affidavit from a Mr. Haugnes, a Public Prosecutor in Norway, in which he stated: –

“If I were to make a recommendation today to the Norwegian Director General….on the basis of the existing evidence, I would obviously recommend that an indictment be brought against Pocevicius. On this basis, it could safely be said that it is our clear intention to bring the case against Pocevicius before the court if he is extradited to Norway.

It is not a requirement under Norwegian law for a suspect to be questioned before bringing an indictment against him. No one is obliged to make a statement to the police in Norway and a suspect/charged person…..are also not obliged to make a statement to any Court of Justice. Consequently, an indictment may be brought without the indicted person having made a statement. However, the charged person’s statement is considered so important to the total evidential situation that it would contravene best prosecution practice not to question a suspect if he/she is willing to make a statement.”

17. Even though, therefore, a final decision to issue an indictment had not been taken, and would not be taken until Mr. Pocevicius was afforded the opportunity to make a statement, there was a clear intention expressed to bring forward a case against Mr. Pocevicius, subject only to affording him the right to make a statement.

18. In this case it is submitted on behalf of the respondent that the ‘clear intention’ to prosecute that was present in Pocevicius is absent, notwithstanding an express question put to the Public Prosecutor on the issue, and it would not be appropriate for the court to draw an inference as to such an intention in these circumstances. At the conclusion of the hearing of the application, I took the view that it would be appropriate for the Court to ask the Public Prosecutor to address the question again. This was not so much affording the requesting state an opportunity to “mend its hand”, but rather a recognition that different criminal justice systems operate in different ways, and it is incumbent on the Court to ensure that its decision is made with the clearest possible understanding of the criminal justice system of the requesting state, so far as is relevant to the application before the Court. In taking this view, I also took account of the following: –

(1) That there is no doubt that there has been a very complete investigation into the events in respect of which the respondent’s extradition is sought, and that investigation has already resulted in the prosecution and conviction of another party;
(2) that the Public Prosecutor has stated that it is not ‘a question of carrying out further investigations but only of carrying out this fundamental investigative measure’ i.e., that required by Article 107 of the Swiss Criminal Code and;
(3) the only reason that this measure has not already been taken is that the respondent absconded.
19. Moreover, in Pocevicius, McKechnie J. in addition to the text quoted from para. 48(3) of his judgment at para. 9 above, also stated that it is not a requirement for extradition that an investigation be irreversibly concluded, and at para. 48(4) he continued: –

“A decision to cease to prosecute, based on evidence discovered as part of any ongoing investigation is completely compatible with surrender; it could not be otherwise for if it was, it could mean that a person whose innocence was established subsequent to charge, would have to stand trial. Evidently, that could not be the case.”

20. Accordingly, even if the conduct of the procedures set forth in Articles 107, 317 and 318 of the Swiss Criminal Code resulted in a decision to cease to prosecute, that would be compatible with surrender.

21. In any case I adjourned this application so that the Public Prosecutor could answer the following questions: –

(1) Is it the opinion of the Public Prosecutor that there is, as matters stand now, sufficient evidence to charge and try the respondent?
(2) Has the Public Prosecutor in fact taken a decision to charge and try the respondent, subject only to compliance with Articles 107, 317 and 318 of the Swiss Criminal Code?
22. Letters putting these questions to the Public Prosecutor were sent on 30th October, 2019. The Public Prosecutor replied by letter of 11th November, 2019. He replied as follows: –

(1) “I would like to reiterate that, as matters stand, there is sufficient evidence to put MATACHE Daniel Paul on trial for the offences for which his extradition is sought
(2) as already mentioned in my letter dated 20 August 2019, before the issuing of the indictment, all the evidence taken in the preliminary procedure will be contested to MATACHE Daniel Paul and this is in his own interest and in respect of the right to be heard ( art. 107 CrimPC). I confirm that no decision of indictment against MATACHE Daniel Paul has been issued yet, because it will first have to challenge all the evidence taken in the (preliminary) proceedings and this in respect of the right to be heard ( art. 107 CrimPC) and in respect of the guaranteed rights foreseen in art. 317 CrimPC and art. 318 CrimPC, otherwise the issuing of the indictment and the process will be invalid”.
23. The hearing of this application then reconvened on 25th November, 2019, to hear submissions from the parties in relation to the replies received from the Public Prosecutor. On behalf of the applicant, Mr. Kennedy SC, submitted that it is clear from the totality of the information received that the respondent is not sought for the purposes of investigation, but for the purpose of proceeding against him. It is submitted that the status of the respondent is that of an accused person, and not suspect. He is not sought for the purposes of further investigation. Instead, his extradition is sought for the purpose of affording him his statutory right to be heard, and it is only following upon this that the decision to prosecute can be taken. There is however no question of further investigations.

24. In Pocevicius, the respondent did not have a statutory right to be heard such as the respondent has in this case. The prosecutor in that case was following what is considered to be best practice in Norway, in affording the respondent in that case the right to be heard. The prosecutor in that case had not yet taken the final decision to prosecute, for that reason, but nonetheless McKechnie J. considered that the entire process, looked at as a whole, was in compliance with s. 9 of the Act of 1965, and he concluded that the requesting state was “ proceeding ” against Mr. Pocevicius for the offence in question.

25. Mr. Farrell SC, for the respondent, submitted that the response of the Public Prosecutor did not advance matters at all. The Public Prosecutor was expressly asked if a decision had been taken to try the respondent subject only to compliance with the Swiss criminal code. He failed to answer that question and instead explained that the respondent must be interviewed (or words to that effect) before the issue of an indictment. This is to be contrasted with the much stronger statement of intention expressed on behalf of the Norwegian prosecutor in Pocevicius in which he said that “ it is our clear intention to bring the case against Pocevicius before the Court if he is extradited to Norway ” (see para. 16 above).

26. It is submitted that evidence in this case does not go this far. There is not in this case either a decision to try the respondent, nor a clear intention to do so. Accordingly, the applicant has failed to discharge the requirements of s. 9 of the Act of 1965.

Decision
27. In Pocevicius no decision to try had been taken, but nonetheless the extradition of the respondent was ordered. Not only that, notwithstanding that the Prosecutor Mr. Haugnes, stated in an affidavit that:-

“it could safely be said that it is our clear intention to bring the case against Pocevicius before the court ”, that was not his decision to make and as McKechnie J. said at para. 57 “ there is no reference whatsoever as to what view the Director General might take if the evidence remains as is ”.

However, McKechnie J. expressed the view that: “ The prosecution process must be looked upon as a continuum ”. He noted that the Public Prosecutors in that case had advanced the process as much as they had authority to do, and that the only options open to the Director General following upon the interview of the respondent in that case were to bring forward an indictment or to bring the proceedings to an end. He was satisfied that the investigative process was over. He concluded that the requesting state in that case was “ proceeding ” against Mr. Pocevicius, and that the entire process, looked at as a whole, was in compliance with s. 9 of the Act of 1965.

28. While there are very striking similarities between the facts of this case and those in Pocevicius, one difference upon which the respondent places much reliance is the statement of Mr. Haugnes referred to above. This, it is submitted, constituted clear evidence to indict Mr. Pocevicius, upon which the court relied, and there is no equivalent statement or evidence in these proceedings. However, it has been clearly stated that in the opinion of the Public Prosecutor, there is sufficient evidence to put the respondent on trial, and it has been made clear that no decision to indict the respondent has been issued only because of the statutory requirements set out in Articles 107, 317 and 318 of the criminal procedure code. Significantly, the Public Prosecutor also states in his response of 11th November, 2019 to questions put by the Court that if a decision were taken to indict the respondent before compliance with these provisions of the criminal code, the issuing of the indictment and the process would be invalid. It is hardly surprising that the Public Prosecutor would be wary about saying a decision to indict had been taken, even if he qualified this by saying the decision was conditional upon compliance with statutory procedures, if there was a risk that such a statement might undermine the entire process.

29. In Pocevicius the procedures being followed by the Public Prosecutor were not mandated by statute, but were followed as a matter of best practice. Nonetheless, McKechnie J. accepted that the proceedings could not be brought to indictment stage until those procedures that are followed as a matter of practice in Norwegian law had been brought to a conclusion. In this case the prosecutor is obliged as a matter of law to follow the procedures set forth in the criminal code, including affording the respondent the right to be heard, before any decision to indict can be taken. The objective of the procedures to be followed prior to any decision on indictment in each case appears to be quite similar: to afford the respondent the right to be heard as regards the evidence gathered by the prosecutor, and, if necessary, to enable the Public Prosecutor to take appropriate action arising out of any information received. However, it can hardly be that the strength of the case of the applicant is weaker than that of the applicant in Pocevicius, in circumstances where in this case the obstacle to the issue of an indictment is mandated by statute, rather than in the nature of a code of practice.

30. Moreover, it is, I think, of some relevance that one of those alleged to have been in the company of the respondent on the occasion of the events, in respect of which the extradition of the respondent is sought, has already been found guilty of attempted homicide in connection with the same events. While it hardly needs to be said that cases against those involved in the commission of the same criminal acts will vary depending upon their degree of involvement, the fact that one of the other parties involved has already been charged and convicted of attempted homicide is a very clear indicator that the Public Prosecutor will proceed to issue an indictment against the respondent, having already formed the conclusion that there is sufficient evidence to bring forward the indictment, subject only to affording the respondent his statutory rights. I should add however that this factor merely serves to bolster my conclusion and is not in itself determinative of this application.

31. Counsel for the respondent very fairly submitted that this is a marginal case, but that in his submission there was insufficient evidence for the Court to arrive at the same conclusion as did McKechnie J. in Pocevicius. However, I cannot agree. Looking at the entire process, as McKechnie J. did in Pocevicius, I do not believe that there is any doubt that the requesting state is proceeding against the respondent within the meaning of s. 9 of the Act of 1965, and moreover that it intends to indict the respondent once there has been compliance with the relevant statutory procedures, but subject to anything the respondent may have to say as a result of compliance with those procedures. In other words, the respondent might yet say something in his defence that will persuade the Public Prosecutor not to issue an indictment, but as in Pocevicius what will follow the compliance with these procedures will either be the issue of an indictment or the cessation of proceedings altogether. Whatever may be the ultimate conclusion, I am satisfied that the surrender of the applicant is not being sought for the purposes of investigation, but is sought for the purpose of proceedings against the respondent as required by s. 9 of the Act of 1965. Being satisfied that this is so and also being satisfied that the requirements of s. 29 of the Act of 1965 have been met, I will make an order committing the respondent to prison, pursuant to s. 29(1) of the Act of 1965 pending the order of the Minister for his extradition.

Minister for Justice and Equality -v- Sliwa

[2016] IECA 130 (04 May 2016)
U

RESPONDENT

JUDGMENT of the Court of Mr. Justice Gerard Hogan delivered on the 4th day of May 2016
1. This is an appeal taken by the respondent, Mr. Sliwa, against the decision of the High Court (Donnelly J.) delivered on 11th April 2016 whereby she granted consent to petitions of the Republic of Poland for criminal proceedings in respect of five named criminal complaints against him, pursuant to s. 22(7) of the European Arrest Warrant Act 2003 (“the 2003 Act”) (as amended): see Minister for Justice and Equality v. Sliwa [2016] IEHC 185. As will shortly be seen, this appeal presents a net point of interpretation concerning the rule of specialty in the context of s. 22 of the 2003 Act.

2. The background to this appeal is as follows: on 6th October, 2014, the High Court ordered the surrender of Mr. Sliwa in respect of four separate European arrest warrants (“EAWs”) to Poland. Two of those EAWs related to offences for which he was sought for prosecution, the other two EAWs were for the purpose of serving two separate sentences of six months in prison. Since his surrender to Poland, the High Court has received seven separate requests pursuant to s.22 of the 2003 Act emanating from judicial authorities in Poland seeking permission either to prosecute him for offences pre-dating his surrender, or, in two cases, either to impose a sentence following a criminal conviction or to execute a sentence which has already been imposed since his surrender for such offences.

3. The decision of Donnelly J. relates to five of the seven criminal complaints (or, to use the terminology employed by the Polish legal system, “petitions”): petitions 1, 2, 3, 5 and 6.

4. It is also important to stress that it emerged during the course of the hearing before this Court that the five requests from the Polish authorities under consideration in this appeal (i.e., petitions 1, 2, 3, 5 and 6) all concern applications which come within s. 22(7)(a) of the 2003 Act whereby the consent of the High Court to criminal prosecutions in Poland has been sought. The alleged offences consist of what we would understand to be fraud offences or offences relating to obtaining money through false pretences.

5. The situation in respect of petitions 4 and 7 is (or, at least, pending further clarification, may be) different in that it appears that the authorities in those cases have proceeded before the Polish courts in these two cases. It is, however, agreed that the steps take to date do not infringe Article 27 of the Framework Decision as construed by the Court of Justice in Case C-388/08 Leymann [2008] ECR I-8983. As these matters are not before this Court, we refrain from exercising any view in respect of these two petitions.
The rule of specialty
6. The necessity to obtain the permission of the High Court pursuant to s. 22 of the 2003 Act reflects the rule of specialty contained in Article 27 of the Council Framework Decision 2002/584/JHA on the European Arrest Warrant (2002)(O.J. 2000 L 190). The rule of specialty is one of long standing in the sphere of the extradition or surrender of offenders from one State to another. Earlier versions of the rule can be found in important international extradition agreements: see, e.g., Article 14 of the European Convention on Extradition 1957.

7. The rule itself seeks to give effect to the principle of full faith and mutuality inherent in the international extradition process by ensuring that if an offender is surrendered in respect of charge A, he cannot then be proceeded against within the requesting state in respect of charge B, save where the surrendering state consents. The rule may generally be said to provide a reassurance to the surrendering state that its extradition procedures will not be circumvented by the subsequent prosecution of the offender in respect of other charges in respect of which the surrendering state would not itself have been prepared to grant extradition.

8. It is true that the use of the term “rule” in this context is something of a misnomer since specialty simply accommodates understandable sovereignty concerns on the part of surrendering states. It thereby reflects long standing diplomatic practice quite independently of treaty agreement (or, in the special case of the European Union, national legislation giving effect to an otherwise binding Framework Decision). This practice is one which, as the High Court previously noted in The State (Sumers Jennings) v. Furlong [1966] I.R. 183, was never designed to confer individual rights. As Farrell and Hanrahan European Arrest Warrant in Ireland (Dublin, 2009) put it (at para. 14.03), the rule of specialty is:

“more appropriately regarded as a policy which informs a majority of extradition agreements rather than a rule as such. It should not be regarded as a general right which the requested person is entitled to invoke as deriving either from international law or domestic law but rather an exception to surrender that can only be considered in the specific terms of the statute or agreement that gives rise to it. The version of the rule which appears in the Framework Decision and the European Arrest Warrant Act 2003 is subject to a significant number of exceptions and a waiver procedure which can be invoked subsequent to surrender.”
9. Even though Article 31 of the Framework Decision expressly acknowledges that the new EAW procedure replaced the European Convention on Extradition as between the Member States of the Union, Article 27 reflects much of the earlier contents of the earlier rule of specialty contained in Article 14 of the 1957 Convention. Specifically, Article 27(3)(g) of the Framework Decision provides that the prohibition on prosecuting the offender in respect of offences other than those in respect of which he has been surrendered does not apply where “the executing judicial authority which surrendered the person give its consent in accordance with [Article 27(4)].”
10. In the present case Mr. Sliwa objected to consent being given pursuant to s.22 of the 2003 Act to his further prosecution in respect of the complaints referred to in the five petitions in Poland. He first submitted that the High Court was prohibited from giving consent pursuant to s.22(7) of the 2003 Act by virtue of ss22(2) to (6) and a breach or a prospective breach of those provisions by Poland.

11. In the High Court Mr. Sliwa also objected to such consent being given in circumstances where the contended that his fundamental rights were (or would be) infringed by reason of alleged shortcomings within the Polish prison system. Section 22(8) of the 2003 Act provides that the High Court is precluded from giving consent if the “offence concerned is an offence for which a person could not by virtue of Part 3 be surrendered under this Act.” Part 3 of the 2003 Act deals with prohibitions on surrender, such as the requirement of correspondence and minimum gravity. Part 3 also includes s. 37 which precludes the making of such an order where the surrender would be incompatible with either the ECHR or the Constitution. The Supreme Court has confirmed that s. 37 of the 2003 Act may be invoked as a ground for objecting to the grant of consent under s. 22(7): see Minister for Justice and Law Reform v. Strzelecki [2015] IESC 15.

12. So far as the latter submission was concerned, while Donnelly J. acknowledged that the conditions to be found in Polish prisoners were sub-optimal, she did not consider that they were such as would reach the level of ECHR incompatibility. This objection was not pursued on appeal to this Court and I mention it only for completeness. It is not necessary to address this issue any further.
The proper construction of s. 22
13. The proper construction of s. 22 of the 2003 Act in general – and, specifically, s. 22(7) – was, however, at the heart of the present appeal. Section 22 gives statutory effect to the rule of specialty contained in Article 27 of the Framework Decision. It is, however, critical to stress that it is manifest from the structure and the language used in this section that the Oireachtas has drawn a clear distinction between the application of the rule of specialty in the case of the initial application for surrender on the one hand and its application to a case where the alleged offender has already been surrendered on the other.

14. Section 22(1) of the 2003 Act carefully defines the word “offence” in the specialty context by making it clear that it refers to a pre-surrender offence not otherwise covered by the European Arrest Warrant. Section 22(2) then addresses the situation of where it is proposed to surrender the alleged offender. This sub-section provides that the High Court “shall refuse surrender” if it is satisfied that:

“(a) the law of the issuing state does not provide that a person who was surrendered to it pursuant to a European arrest warrant shall not be proceeded against, sentenced or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence, and
(b) the person will be proceeded against, sentenced or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence.”

15. Subsection 3 provides for certain presumptions in favour of the law and practice of the requesting state. Subsections 4, 5 and 6 provides for specific situations where surrender is not to be refused.
16. Section 22(7) then deals with the position of a person who has already been surrendered to the requested state. It provides:

“The High Court may, in relation to a person who has been surrendered to an issuing state under this Act, consent to –

(a) proceedings being brought against the person in the issuing state for an offence,
(b) the imposition in the issuing state of a penalty, including a penalty consisting of a restriction of the person’s liberty, in respect of an offence, or

(c) proceedings being brought against, or the detention of, the person in the issuing state for the purpose of executing a sentence or order of detention in respect of an offence, upon receiving a request in writing from the issuing state in that behalf.”

17. For completeness, the provisions of s. 22(8) of the 2003 Act should also be noted:
“The High Court shall not give its consent under subsection (7) if the offence concerned is an offence for which a person could not by virtue of Part 3 be surrendered under this Act.”
18. The essential objection in the present case is that the High Court should have declined to make an order under s. 22(7) by reason of the fact that, viewed by reference to the circumstances of the present case, it had been shown that Polish law and practice did not comply with the requirements of s. 22(2) and that this was a factor which ought to have been taken into account when considering whether to make an order under s. 22(7). It was thus contended that if the High Court was now considering whether to make a surrender order in respect of Mr. Sliwa under s. 22(2), it could not do so because Polish law did not provide that a person who was surrendered to it pursuant to a European arrest warrant “shall not be proceeded against, sentenced or detained for the purposes of executing a sentence or detention order” (s. 22(2)(a)) and because s.22(2)(b) makes it clear that no such order will be made where the requesting state has already “proceeded against, sentenced or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence.” As Poland has already “proceeded against” Mr. Sliwa in respect of other offences to the point of sentence, the argument advanced by Mr. Lynn S.C., counsel for the respondent, is that High Court would then be precluded from making the surrender order by reason of these provisions of s. 22(2), so that by extension the Court should likewise decline to make an order under s. 22(7).
19. In her judgment Donnelly J. rejected the argument that s. 22(7) should be read by reference to the earlier provisions of s. 22(2), saying:

“In the view of the Court, s. 22(7) provides in its plain and ordinary meaning that the Court has the power to consent to the request in each or any of the situations that may apply under the subsection. The restriction on that power is, on the plain and ordinary meaning of the subsection, only limited by subsection 8.”
20. We entirely agree with Donnelly J. that the Oireachtas has made a clear distinction between the position of the person facing surrender on the one hand (s. 22(2)) and the person already surrendered (s. 22(7)) on the other. The Oireachtas has accordingly elected to provide for prescriptive rules set out in s.22(2) in the case of the application of the rule of specialty to the position of the offender first awaiting surrender. These prescriptive rules have not been applied in the case of the person who has already been surrendered. The only prohibition against giving consent specified by the Oireachtas is that contained in s.22(8). There is, accordingly, simply no basis as a matter of statutory interpretation in seeking to apply the special rules in s.22(2) applicable to one situation (i.e., the person awaiting surrender) to another (i.e., the person who has already been surrendered).
21. In reaching this conclusion we have not overlooked the submission made on behalf of Mr Sliwa that in Strzelecki Denham C.J. had said that a request for consent pursuant to s.22(7) “is in essence for consent for the surrender to cover the additional offences” and, accordingly, an application for consent should be treated as if it was an application for surrender. In Strzelecki the Chief Justice was simply considering the inclusion of s.37 in the prohibition in s.22(8). She was not, however, addressing the separate question of the application of the prohibition in s.22(2) to a request for consent pursuant to s.22(7). The judgment does not accordingly support the submission that an application post -surrender for consent to prosecution, conviction or execution of a custodial sentence should in all respects be treated as if it was an application for surrender.

22. It is true that s. 22(7) is permissive and insofar as Donnelly J. may be considered to have suggested in her judgment that the High Court can only refuse surrender in respect of an application under this sub-section by reference to the prohibition contained in s. 22(8), we would respectfully disagree. Indeed, this comment may not have been intended as she was considering the only objections which had been advanced to the High Court in respect of the question of consent. It is, however, unnecessary to consider the circumstances in which the High Court might be justified in refusing to make an order under s. 22(7) independently of s. 22(8). It is sufficient to say that there could, in principle, be no objection to the making of such an order by the High Court in the circumstances of the present case, since by the very act of making this request the Polish authorities have fully – and properly – respected the rule of specialty as contained in the 2003 Act and there is no contention that there has been any breach of the corresponding provisions of Article 27 of the Framework Decision so far as these complaints or petitions are concerned.

23. In these circumstances it is unnecessary to offer any view on the conclusions of the trial judge (at para. 57 of her judgment) to the effect that the words “proceeded against” in s. 22(2) means proceeded against “where there is a deprivation of liberty involved.” This is a matter which must await a determination in an appeal where s. 22(2) is applicable.
Conclusions
24. In these circumstances the High Court was entitled to give its consent to the Polish authorities to the five petitions in respect of criminal prosecutions against Mr. Sliwa pursuant to s. 22(7) of the 2003 Act. We would accordingly dismiss the appeal.

The State (Holmes) v. Furlong.

O’Dalaigh
21 Dec.

[1967] IR 210

The applicant, Kenneth Holmes, applied to the President of the High Court on the 23rd November, 1967, for an order of habeas corpus pursuant to the provisions of s. 48 of the Extradition Act, 1965. The argument which the applicant submitted to the President was that his case fell within the rule of speciality provided for in Part II of the Act at sect. 20. The President held that s. 20 of the Act had no application and he refused an order of habeas corpus. This is an appeal against the President’s order.
The originating warrant for the arrest of the applicant is dated the 16th August, 1967, and it purports to be signed by D. N. O’Sullivan, a Justice of the Peace for City and County of Kingston-upon-Hull. The warrant is addressed to all and singular the Constables of the said City and County and it recites that an information upon oath has been made before the Justice, sitting and acting at the Magistrate’s Court at Kingston-upon-Hull, by one John Joseph Crawley of the Central Police Station, Queen’s Gardens, in the said City and County, that the applicant on the 12th August, 1967, at the said City and County, did indecently assault Paul Andrew Carter, a male person aged 15 years, contrary to section 15, sub-s. 1, of the Sexual Offences Act, 1956. The warrant concludes by authorising and commanding the constables, or any of them, in the name of Her Majesty forthwith to apprehend the applicant and bring him before the Magistrate’s Court to answer the said information. By endorsement of Edward A. Reynolds, Assistant Commissioner of the Garda Siochana, dated the 23rd September, 1967, the warrant was backed for execution in the State by any member of the GÃ¡rda Siochana. The warrant was accompanied by an affidavit verifying the signature and seal of the magistrate and by a certificate of the assistant clerk to the Justices of the said City and County that the offence specified in the attached warrant, namely the offence of indecent assault on a male person aged 15 years, is an indictable offence (not being an offence triable on indictment only at the instance or with the consent of the accused) and not also a summary offence under the law of England and Wales.
The applicant was arrested in Dublin and duly brought before the District Court. On the 7th November, 1967, District Justice O’Hagan made an order for the applicant’s delivery at Dublin to an authorised member of the police force of Kingston-upon-Hull, and he remanded the applicant in custody to Mountjoy Prison until so delivered. Following upon this the applicant applied to the President for an order of habeas corpus.
It appears that the applicant was convicted on the 14th February, 1955, at the York County Assizes, of rape and sentenced to 10 years imprisonment, for which, on the 5th July, 1955, the Court of Criminal Appeal substituted a sentence of life imprisonment. By licence dated the 7th February, 1964 (made under s. 27 of the Prison Act, 1952) he was released from prison, and on the 10th July, 1965 (by an order under the same section) he was recalled to prison. He was again released on licence on the 28th April, 1966, and again recalled to prison by order made on the 16th August, 1967. This latter order has not yet been executed: the applicant arrived in Ireland on the 15th August, 1967.
The relevant provisions of s. 20 of the Act of 1965, upon which the applicant relied, are as follows:
“(1) Extradition shall not be granted unless provision is made by the law of the requesting country or by the extradition agreement
(a) that the person claimed shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order, or otherwise restricted in his personal freedom, for any offence committed prior to his surrender other than that for which his extradition is requested, except in the following cases
(i) with the consent of the Minister, or
(ii) where that person, having had an opportunity to leave the territory of that country, has not done so within forty-five days of his final discharge in respect of the offence for which he was extradited or has returned to the territory of that country after leaving it, and (b) that where the description of the offence charged in the requesting country is altered in the course of proceedings, he shall only be proceeded against or sentenced in so far as the offence under its new description is shown by its constituent elements to be an offence which would allow extradition . . .
(4) The consent of the Minister shall be given if the offence for which it is requested is itself one for which there is an obligation to grant extradition.”
The applicant, it is to be inferred, relies upon the absence of the Minister’s consent to his extradition. The President, in my opinion, was clearly right in his view that s. 20 of the Act of 1965 has no application to the applicant’s case.
The Act of 1965, is in three parts. Part I deals with preliminary matters, Part II with “Extradition Generally” and Part III with “Endorsement and Execution of Certain Warrants.”
Part II of the Act, in which s. 20 occurs, requires an order of the Government to make it applicable to another country in this instance, Great Britain. The circumstances in which such an order may be made are those specified in s. 8, sub-s. 1, of the Act in these words:”Where by any international agreement or convention to which the State is a party an arrangement (in this Act referred to as an extradition agreement) is made with another country for the surrender by each country to the other of persons wanted for prosecution or punishment or where the Government are satisfied that reciprocal facilities to that effect will be afforded by another country, the Government may by order apply this Part in relation to that country.”
Sub-sect. 5 of s. 8 of the Act further provides:”Every extradition agreement and every order applying this Part otherwise than in pursuance of an extradition agreement shall, subject to the provisions of this Part, have the force of law in accordance with its terms.”
Part II of the Act is in fact an enactment of the European Convention on Extradition which was signed at Paris on the 13th December, 1957, and ratified by Ireland on the 2nd May, 1960. Orders have been made under s. 8, sub-s. 1, of the Act making Part II applicable to the other countries which have ratified the Convention, which to date number eight.1 Great Britain has not ratified the Convention. Nor has it regulated its relations with Ireland in respect of extradition on the basis of reciprocal facilities to the same effect as those contained in the Convention. Accordingly, no order has been made or, as matters stand, could be made applying Part II of the Act to Great Britain.
It may be pointed out that, if Great Britain were to ratify the Convention, Britain and Ireland would nevertheless be free under the terms of the Convention to regulate their mutual relations in respect of extradition in accordance with a system which did not accord with the Convention. The relevant provision is Article 28(3) of the Convention which is in these terms:”Where, as between two or more Contracting Parties, extradition takes place on the basis of a uniform law, the Parties shall be free to regulate their mutual relations in respect of extradition exclusively in accordance with such a system notwithstanding the provisions of this Convention. The same principle shall apply as between two or more Contracting Parties each of which has in force a law providing for the execution in its territory of warrants of arrest issued in the territory of the other Party or Parties. Contracting Parties which exclude or may in the future exclude the application of this Convention as between themselves in accordance with this paragraph shall notify the Secretary-General of the Council of Europe accordingly. The Secretary-General shall inform the other Contracting Parties of any notification received in accordance with this paragraph.”
Both Great Britain and Ireland have in force laws providing for the mutual execution of warrants of arrest in each other’s territory. The Irish provision is Part III of the Act of 1965; the corresponding British provision is the Backing of Warrants (Republic of Ireland) Act, 1965. If Britain were to ratify the European Convention on Extradition, all that would be required to exclude the provisions of the Convention from applying as between Ireland and Britain would be a notification to the Secretary-General of the Council of Europe of intention to continue the existing laws.
The result is that the applicant cannot rely on the provisions of s. 20 of the Extradition Act, 1965, nor call in aid the terms of the European Convention on Extradition. The applicant’s position is governed by the terms of Part III of the Extradition Act, 1965. That Part, at s. 41, is stated to apply “in relation to each of the following places, namely, Northern Ireland, England and Wales, Scotland, the Isle of Man and the Channel Islands.”
The applicant made a second complaint. The date of the issue of the warrant for his arrest and the date of the revocation of his licence to be at large are the same16th August 1967. This, he said, was significant; it indicated that the real purpose behind the issue of the warrant was to procure his return in order that he could be again imprisoned consequent upon the revocation of his licence; and moreover this could be achieved notwithstanding his acquittal on the charge to which the warrant relates. It is true that, once the applicant is again in England, he can be again imprisoned consequent upon the revocation of his licence. It is also true that he could not be sent back on the warrant which has been issued if the mutual relations of Ireland and Great Britain were subject to the rule of speciality, except by consent of the Minister for Justice. But, as has been pointed out, Part II of the Extradition Act, 1965 which by s. 20 enacts the rule of speciality of Article 142 of the European Convention on Extradition, has no application; the relevant provision is Part III of the Act of 1965. Moreover, if Great Britain were to ratify the Convention, Article 28(3) of the Convention would admit of the mutual relations of Ireland and Great Britain being regulated without the speciality safeguards. The applicant cannot, therefore, complain because he is wanted in England for punishment as well as for prosecution. Indeed, it may be pointed out that Part III of the Act of 1965 contains a provision, in addition to provision for extradition to answer a charge of an indictable offence, for a convicted person being returned to the United Kingdom for punishment: see sub-ss. 1 and 3 of sect. 43.
The applicant has not said that the charge referred to in the warrant is trumped up. On the contrary, he admitted that he was in England on the date of the alleged offence, viz., 12th August, 1967; and, moreover, he says that he touched the boy and that, if there was an offence, it was what he termed”a technical offence.” These, however, are not matters for this Court but are matters of defence. Cases may arise in which the Court will find it necessary to inquire whether the offence alleged in the warrant is genuine or trumped-up with the object of ensuring that a person is not sent back to the jurisdiction of the requesting country for purposes extraneous to the Act. This is not such a case. It may be noted that s. 44 of the Act of 1965 contains safeguards in respect of extradition for political offences, offences against military law which are not offences under ordinary criminal law, and revenue offences.
The Court’s function is, therefore, limited to satisfying itself that the provisions of Part III of the Act of 1965 have been properly complied with. The Court has examined the several steps that are necessary before an extradition order can issue and finds that they have been taken, viz.:(a) that the warrant was issued by a judicial authority in England; (the signature to the warrant is verified by an affidavit appearing to be sworn before a person duly authorised to take affidavits: see s. 55 ,sub-s. 1(a) and s. 54, sub-s. 1, of the Act of 1965); and (b) the warrant was duly endorsed by the Assistant Commissioner of the Garda Siochana: see s. 42 and s. 55, sub-s. 2, of the Act of 1965; and (c) the offence to which the warrant relates is an indictable offence; (this is certified by the assistant clerk of the justices pursuant to s. 54, sub-s. 2, of the Act of 1965).
None of the grounds raised by the applicant raises any doubt as to the legality of the applicant’s detention. However, in addition to the several matters which were raised by the applicant, the Court itself raised for consideration two questions arising on the form of the District Justice’s Order. The Order is headed “Extradition Act, 1965. Section 47. Order for delivery at point of departure. Committal warrant to prison.” The order begins by reciting that the applicant appeared before the Court on foot of the English warrant; it states the charges referred to therein and that the warrant was duly endorsed pursuant to s. 43 of the Act of 1965. Next the order recites that the applicant was duly informed of his rights under s. 50 of the Act.
Then follows the curial part of the order which is as follows:”IT IS HEREBY ORDERED that you deliver the said Kenneth Edward Holmes of 55 Main Street, Swanland, E. Yorks, to a duly authorised member of the Police Force of Kingston-upon-Hull at Dublin. AND FURTHER that you lodge the said Kenneth Edward Holmes in the prison at Mountjoy, Dublin, there to be detained by the Governor of the said prison for such period not less than fifteen days from the date hereof (except in the meantime the Defendant by notice in writing consents to his being delivered up within the said period of fifteen days) and for such further period as may be necessary according to law.”
The Order of the District Court purports to have been made under s. 47, sub-s. 1, of the Act of 1965. The two questions raised by the Court were (i) whether the order for delivery”at Dublin” was an order “for . . . delivery at some convenient point of departure from the State” and (ii) whether the delivery should have been expressed to be ” for conveyance to that place,” i.e., the place in which the warrant was issued.
Counsel for the Governor of Mountjoy Prison has submitted that the Order is a sufficient compliance with the terms of s. 47, sub-s. 1, of the Act. He submitted that the Court should hold that the statutory phrase “some convenient point of departure from the State” should be regarded as being implicit in the Order and that “Dublin” should be construed as meaning the geographical County and City of Dublin, and that the maxim “omnia praesumuntur . . . “was applicable. He also submitted that it was unnecessary for the District Court to add to its Order the words “for conveyance to that place,” as these words merely expressed the purpose of the delivery. Counsel also said that, if the Court had any apprehensions about the due execution of the Order, he was in a position to give the Court assurances.
What is a “point of departure from the State”? It will in human terms be where one can say the last good-bye. If departure is by shipthe quayside or pier; if by aeroplane, the airport; if by land, the customs barrier. In the last instance, if the mode of transport chosen were a train, the last station this side of the border would also be a point of departure from the State. The section requires the District Court to designate the point of departure from the State at which the delivery is to be made. This is the effect of the word “some”;that Court is required to make a choice and to specify. I am also of opinion that the Act contemplates only one point of departure from the State being designated. The Act does not say “at one or more convenient points of departure from the State.” The Act, I think, requires certainty. Occasionally this may turn out to be inconvenient. A Garda officer may take a prisoner for delivery to Dublin Airport, and find that the airport is fog-bound. Then his duty is clear; the purpose of the delivery is for conveyance to the place in which the warrant was issued. The Act contemplates that the prisoner will, on being delivered to the foreign police officer, depart from the State in the custody of that officer. He will therefore in these circumstances postpone delivery. A point of departure from the State is mentioned in the section to ensure that as soon as delivery is effected the prisoner will be on his way out of the State without further delay. One very good reason for this is the complications which could arise if foreign police officers were to find themselves detaining a prisoner within the State, except momentarily at a point of departure from the State pending departure.
It is to be noted that a warrant produced under Part III of the Act is not backed for execution in the State by a member or members of the external police force. No specific authority is given to a member of an external police force to detain the applicant within the State. He gets delivery of the prisoner at a point of departure from the State because it is clearly contemplated he will thereupon depart from the State. The contrast between the delivery procedure laid down under s. 47, sub-s. 1, in Part III of the Act with the procedure for surrender under Part II is very marked. Under Part II the Minister by order directs the person to be surrendered to such other person as in his opinion is duly authorised by the requesting country to receive him: sub-s. 1 of sect. 33. Sub-sect. 2 of s. 33 then provides as follows:”Any person to whom an order under subsection (1) directs a person to be, surrendered may receive, hold in custody, and convey out of the State the person so surrendered and if the person so surrendered escapes from any custody to which he has been delivered in pursuance of the said order he shall be liable to be retaken in the same manner as any person who escapes from lawful custody.”
Sect. 47 confers no express authority to hold in custody within the State and makes no provision for re-taking on escape from custody. The absence of such provisions in s. 47 emphasises the immediacy and ultimate nature of the delivery to be effected under that section.
These considerations satisfy me that an order for delivery”at Dublin” does not satisfy the requirements of sect. 47. Dublin is not a point of departure from the State within the meaning of the section. Dublin, construed as meaning the geographical County and City, is a large area which contains at least three well-known and convenient points of departure from the State, each some miles apart from the others. The Order as made does not require delivery at a point of departure from the State; and a member of the Garda Siochana who effected delivery, for example, at a City Garda Station, would have complied with the order and would thereby, inadvertently no doubt, have done much to create the complications which the section is designed to eliminate. The Act does not authorise such haphazard delivery. The section expressly says otherwise. My opinion, therefore, is that this Order is bad and not warranted by the Act. The order for remand, under which the applicant is now detained, is ancillary to a proper order for delivery being made. It rests on the validity of the Order for delivery and, as this Order falls, the order for remand must fall with it. The result is that the present detention of the applicant is not lawful. I would therefore order the applicant’s release.
I should add some few words on the second question raised by the Court. I read s. 47, sub-s. 1, of the Act of 1965 as saying that the order should be for delivery at A. (a designated convenient point of departure from the State) to a member of the police force of B. (being the place where the warrant issued) for conveyance to B. The order is not just an order for delivery; the order is to specify the purpose of the delivery.
The Act of 1965 is an Extradition Act and the essence of extradition is delivery for conveyance out of the country to the place where the warrant was issued. For that reason I am of the opinion that these words should be included in the order and that the purpose of the delivery should not be left to be spelt out by reference to the contents of the warrant. Delivery should not be effected if it should appear that the prisoner is not to be conveyed to the place in which the warrant issued but to some other place. This may be remote but it is not an impossibility. In any event the Act had a purpose in stating the purpose and the order should comply with the Act.
I think I should add further that the validity of the English warrant has not been challenged, and its validity in my view is unaffected by these proceedings. The infirmity which calls for this Court’s intervention is that of the District Court Order. The applicant was brought before the District Court by virtue of the endorsement on the warrant pursuant to s. 43 of the Act of 1965. The force of that endorsement is now spent. But the warrant may be again produced to the Commissioner of the Garda Siochana for endorsement and, if endorsed anew, the applicant may be re-arrested on foot thereof and dealt with as provided for in ss. 45 and 46 of the Act, as may be appropriate.
I hope these proceedings, if they serve no other purpose, will have the advantage of clarifying for the assistance of the Garda authorities and of the District Court some of the problems arising on the construction of this relatively recent legislation.

HAUGH J. :
I agree with the judgment of the Chief Justice and with the judgment of Mr. Justice Walsh.

WALSH J. :
The applicant in this case is a person in respect of whom an order was made purporting to be pursuant to s. 47, sub-s. 1, in Part III of the Extradition Act, 1965. The point has arisen as to whether the Order of the District Court should set out the point of actual departure from the State at which delivery of the prisoner is to be made to the member of the police force from the jurisdiction from whence the warrant issued. In this case the warrant has simply directed that the prisoner be delivered “at Dublin.”
When one compares the provisions of this section with those of s. 33 in Part II of the Act, certain significant differences appear. In sub-s. 1 of s. 33 the order directing the surrender (following the appropriate court proceedings) is to be made by the Minister for Justice and the subsection states that the Minister “may . . . by order direct the person to be surrendered to such other person as in his opinion is duly authorised by the requesting country to receive him and he shall be surrendered accordingly.” Sub-sect. 2 of s. 33 provides that”Any person to whom an order under subsection (1) directs a person to be surrendered may receive, hold in custody, and convey out of the State the person so surrendered and if the person so surrendered escapes from any custody to which he has been delivered in pursuance of said order he shall be liable to be retaken in the same manner as any person who escapes from lawful custody.” It is obvious that this section contemplates the surrendered person being in the custody of the foreign custodian within the territory of the State and also contemplates his travelling through the State in the custody of the foreign custodian. Sect. 47 by contrast has no such provisions. It is to be noted that, while Part II of the Act contemplates extradition treaties between Ireland and other countries, Part III of the Act (which contains s. 47) is special legislation dealing with the backing of warrants and operable only as between Ireland and various parts of Great Britain and of the United Kingdom. The corresponding reciprocal legislation in the United Kingdom is the Backing of Warrants (Republic of Ireland) Act, 1965.
There are no prescribed forms and no rules in the District Court which are referable to the orders to be made under s. 47 and therefore no question arises here of the form which was used being at variance with any prescribed form. It is clear from both s. 47, sub-s. 1, of the Irish Act and from the corresponding provision (s. 2, sub-s. 1) of the British Act that the procedure contemplated is that the custody of the surrendered prisoner is not to be transferred from the local police force to the foreign police officer until the actual moment of departure from the State. The section in express terms requires that the order of the District Justice should specify that the delivery is to take place “at some convenient point of departure from the State.” By use of the word “some”, as distinct from the word “any” which might otherwise have been used, it is clear that the District Justice is required to state the point of departure and so ensure that the prisoner will remain lawfully in the custody of the Irish police officers until he is at the point of actual departure from the State. It is not contemplated in the section that the delivery of the prisoner could be made at a point of possible departure rather than the point of actual departure. Thus, if any journey, long or short, is necessary to bring a prisoner from the place of remand or from the Court (as the case may be) to the point of actual departure wherever it may be, the prisoner shall be at all times in the custody of the police force of this State.
In my view the term “Dublin,” used in the present Order, is first of all not described as a point of departure and, secondly, is far too vague. It is impossible to say whether the City of Dublin or the County of Dublin or both were contemplated. That may be a matter of importance when one considers that at least two of the three ordinary points of departure from the State in the “Dublin” area are not in the City of Dublin. Under the terms of the Act delivery of the prisoner may be made only at some point of departure. The order of the District Justice in such a case would not permit of delivery anywhere save where the District Justice directed it. If it should transpire that the place named was not a point of departure from the State, a very anomalous position would arise whereby a Civic Guard, bearing the order, could not lawfully surrender the prisoner at any place other than that specified and, if the place specified did not comply with the terms of the Act, there would in law be no authority for holding the prisoner at all. The first step, or an intermediate step, on the way to the point of actual departure could not be described as a point of departure from the State. As one would expect, this has been fully appreciated by the Garda authorities and the Court has been assured by counsel appearing on behalf of the Governor that in practice the Civic Guards do not transfer the prisoner until he is actually aboard the aircraft or the ship, as the case may be, in which he is leaving the State. It is, therefore, all the more essential that the Civic Guards in question should be so specifically authorised, and therefore protected, by an order of the District Court drawn in exact compliance with s. 47 of the Act of 1965. In a place such as Dublin City and County, in which there are situated several points of departure from the State, it is necessary to specify at which one the prisoner is to be delivered.
It is quite clear from the section that the District Justice, in the light of whatever evidence or information or other considerations which are proper, must decide what would be a convenient point of departure from the State for the prisoner in question and, when he has done so, he is to name it in his order. Naturally one of the considerations which he should bear in mind is the mode of transport contemplated. The point of departure, therefore, in respect of sea or air transport would be the last point of embarkation in the State for sea or air transport out of the State. In the case of passage over a land frontier, he should name whichever is the particular crossing-point on the frontier chosen. In the case of rail travel the last boarding place in the State before the frontier is crossed. It is only by so doing that the intention of the Oireachtas, that the prisoner should remain in the custody of the Irish police until he actually departs from the State, can be effected.
As the purpose of the journey is for conveyance of the prisoner out of the State to the place from which the warrant came, it is clear from s. 47 of the Act of 1965 that the Irish police may not lawfully deliver the prisoner at the point of departure unless it is for the purpose of conveyance to that place and, therefore, that authority should be stated in the order of the District Court which authorises the Irish police to hold and deliver the prisoner.
It appears to me, therefore, that the duty of the District Justice in exercising the jurisdiction of the District Court in these applications is, first of all, to be satisfied as to the validity of the warrant and other documents as prescribed by the Act and, secondly, to be satisfied that the person who has been arrested is in fact the person named or described in the warrant. This point has already been considered in The State (Shanley) v. The Governor of Mountjoy Prison which was decided by this Court on the 7th December, 1965. The District Justice should next satisfy himself that the offence in the warrant is one in respect of which he may make an order under the Act. If he is satisfied that he will make the order, he should then consider the question of the point of delivery and then make his order in accordance with the provisions of the Act. Having made the order he should then inform the prisoner of his right to bring an application of habeas corpus in the High Court and to inform him that he will not be delivered up during the period of fifteen days except with his consent or while any such habeas corpus application is pending. It appears to me to be clear from the provisions of s. 48 that the question of whether or not the prisoner consents to being delivered up before the expiration of fifteen days only arises after the order has been made pursuant to s. 47 and that, apart from notifying the prisoner of his rights and of the fact that he cannot be delivered up without his consent during that period, he should not in my opinion be asked to give his consent or asked whether or not he wishes to consent. In view of the fact that the consent is to be given before a Justice of the District Court or a Peace Commissioner, the proper procedure would appear to be to endorse the consent upon the order already made, whether the consent be given at the same hearing of the District Court or subsequently, so that the Garda officer who has charge of the prisoner may, in one document, be able to display the whole of his authority which, in such an event, would include delivering up the prisoner pursuant to the endorsed consent before the expiration of fifteen days.
The order to be made by the District Justice pursuant to s. 47 should include sufficient recital of the warrant and the endorsement of it pursuant to s. 43 to disclose the jurisdiction of the District Court in the matter and also to disclose that the prisoner has been informed of his right to apply for habeas corpus and of the fact that he cannot be delivered up within the stipulated period save with his consent given before a Justice of the District Court or a Peace Commissioner. The order should then go on to direct delivery of the prisoner at a named point of departure from the State into the custody of a duly authorised member of the police force of the place from whence the warrant came, and it should specify that the purpose of the delivery is for the conveyance of the prisoner to the latter named place. The order should then go on to deal with the question of remand in custody or bail, as the case may be.
For the reasons I have given already I am of opinion that it is insufficient merely to direct delivery in an area or in a place which may contain one or more points of departure from the State without naming the one which is to be the point of actual departure. For the reasons given I am of opinion that the District Court Order in this case is bad on its face for not specifying the point of actual departure and for not stating the purpose of the delivery at such point as required by s. 47 of the Act.
Therefore, the application for habeas corpus should be allowed and the applicant should be set at liberty. With regard to the other grounds raised by the applicant in support of his application I agree with the judgment of the Chief Justice and also with his opinion on the question of re-endorsing a warrant which has not itself been found defective.

BUDD J. :
I agree with the judgment of the Chief Justice.

FITZGERALD J. :
In my opinion this application should be refused. The Order of the District Court dated the 7th November, 1967, under which the applicant is now detained, recited the warrant and its endorsement and thereby discloses all relevant facts to justify the making of the Order. It appears to me that the purpose of the detention and delivery of the prisoner to a member of the police force of Kingston-upon-Hull is perfectly clear and does not require to be specifically stated. I am also satisfied that the direction to deliver the prisoner “at Dublin”is sufficient compliance with the provisions of s. 47 of the Act. Delivery must be ordered “at some convenient point of departure from the State.” In this context I am satisfied that, in relation to public transport, Dublin, Cork, Rosslare or Shannon would in ordinary language be recognised as convenient points of departure from this State. I agree, for the reasons already stated, that the other grounds advanced by the applicant are not sustainable.

Clarke v. McMahon

Costello J. [1990] IR 229
H.C.

Costello J.
28th July 1989

Mr. and Mrs. William Harper lived in a remote farmhouse near Castlederg, County Tyrone. They were there on the evening of the 2nd February, 1977, with their three sons, one of whom was a member of the Ulster Defence Regiment. A group of at least eight armed men attacked the house at about 8 p.m. and riddled it with bullets. By a piece of great misfortune, while this attack was taking place Mr. and Mrs. Harper’s married daughter, Phyllis Kennedy, and her husband and two young sons aged seven and three arrived at the farmhouse in their car. The gunmen fired on Mr. Kennedy and his car. One of Mr. Harper’s sons, as well as Mr. and Mrs. Kennedy and their sons, were injured in the attack.
The applicant in these proceedings was arrested on the 26th March, 1978, in relation to it and charged with a number of offences arising from it. On the 1st June, 1979, in a court in Northern Ireland he was found guilty of ten counts of attempted murder, wounding with intent to do grievous bodily harm, and the possession of firearms with intent to endanger life, and sentenced to concurrent sentences of 18, 15 and 14 years imprisonment. He was serving these sentences in the Maze Prison in Northern Ireland when he escaped on the 25th September, 1983. He was arrested in this jurisdiction on foot of warrants issued in Northern Ireland which were endorsed under the provisions of the Extradition Act, 1965, and brought before a district justice. On the 10th October, 1988, 17 orders for his delivery to Northern Ireland were made under the Act, ten of them relating to warrants referrable to the original offences and seven relating to offences alleged to have been committed when he escaped.
On the 21st October, 1988, he instituted proceedings by way of special summons for an order under s. 50 of the Extradition Act, 1965, directing his release. Later, on the 16th June, 1989, he applied for an order of habeas corpus under Article 40, s. 4, sub-s. 2 of the Constitution. I have heard the s. 50 and Article 40 applications together.
In the s. 50 proceedings it is not now contested that the extradition should be refused on the grounds that (a) the original offence of the 2nd February, 1977, or (b) the offence relating to his escape from the Maze Prison were political offences and, indeed, it is accepted that I cannot make an order for his release under the section on any of the evidence adduced in those proceedings. Unless, therefore, the point raised in the Article 40 proceedings is a valid one then the order of the District Court must be fulfilled. It is to the submissions made on the Article 40 proceedings that I will now turn.
The evidence on both these applications was heard on affidavit and a number of issues were raised by the applicant and answered in replying affidavits with which I am not now concerned. I am not now asked to make an order of habeas corpus on the grounds that the accused’s constitutional rights would be infringed if his extradition to Northern Ireland was ordered, although I am informed that this point is not being abandoned. The point being relied on before me is a different one. It is said that the applicant was subjected to ill-treatment when in custody in Northern Ireland after his arrest on the 26th March, 1978, and on the day following his arrest, i.e. on the 27th March, and the statements he made implicating himself in the attack on the house of Mr. and Mrs. Harper and of membership of the I.R.A. were induced by force and threats of force; that they were untrue; that he was not near the scene of the crime on the night it was perpetrated; that he was not a member of the I.R.A. and that the only evidence implicating him in the crimes with which he was convicted was his own statement. It is argued that (a) his conviction was tainted by evidence obtained by acts which were contrary to the guarantee under the Constitution of Ireland, 1937, and standards applicable in any civilised community, (b) that his custody was similarly tainted, (c) that to order his return now to Northern Ireland would be to allow the Northern Ireland authorities to obtain the fruits of conduct which these courts should properly regard as reprehensible and should not condone, and (d) that the present custody of the applicant here in this jurisdiction is unlawful as it is pursuant to procedures which, if they were completed, would enable the Northern Ireland authorities to obtain the fruits of conduct which is claimed was reprehensible. These arguments, it is said, apply equally to the warrants relating to the February, 1977, offences as those arising from the offences alleged to have occurred in the mass escape of 1983.
The relevant facts relating to the applicant’s detention and trial which are relevant to the issue I have to consider are as follows. He was arrested on the evening of the 26th March, 1978, and brought to Strand Road R.U.C. Station, Londonderry. Immediately on his arrest he was examined by a doctor and he was transferred in the early hours of the 27th March to Omagh R.U.C. Station. There he was medically examined on the evening of the 27th and on the evening of the 28th and on the morning of the 29th. In none of these examinations was a complaint of ill-treatment made by him and no evidence of ill-treatment was found. The inculpatory statement was made, apparently, on the evening of the 27th March. On the 29th he was transferred to the Strand Road Station. On the afternoon of the 29th he made a formal complaint of ill-treatment in the presence of his solicitor and he repeated it later to a doctor who medically examined him saying that ill-treatment had occurred on the 26th March. At his trial he was represented by a solicitor and counsel. The only evidence against him was the inculpatory statements which he had made. The admissibility of these statements was not challenged at his trial and he did not give evidence at it nor call evidence. Commenting on the evidence at the trial the trial judge said as follows:
“No objection was taken by Mr. Talbot or Mr. McCarthy Q.C. appearing for Clarke as to the propriety of the taking of these statements and the evidence satisfies me beyond any doubt that the written and verbal statements of both McIntyre [the applicant’s co-accused] and Clarke were both freely and voluntarily made and they are properly receivable in evidence.”
In the first affidavit the applicant swore in the s. 50 proceedings on the 25th January, 1989, he swore that he had been assaulted and subjected to inhuman and degrading treatment on the 26th March, 1978, at Strand Road R.U.C. Station. In the second affidavit sworn on the 7th June, 1989, under the Article 40 proceedings he swore he had suffered ill-treatment on the 26th March at the Strand Road Station and also on the 27th March in the Omagh Station. He said that his admission of membership of the I.R.A. and his involvement in the crimes of the 2nd February were untrue. He says that on the 2nd February, 1977, he was not at the Harpers’ farmhouse but at a party in the Central Bar, Main Street, Letterkenny, in the County of Donegal. He explained that he did not contest the admissibility of his statement at the trial because he did not think he would be believed, but he offered no explanation as to why, if he was at a party on the evening of the crime of which he was charged, he did not give evidence to that effect and adduce evidence to support his alibi.
Allegations made on the applicant’s behalf amount in effect to a claim that his conviction in 1979 was invalid because it was based on inadmissible evidence, and the court is asked now, ten years after his conviction, to investigate the evidence in support of this contention and to conclude that the allegation is correct.
I do not think that this court can properly undertake such an investigation. The jurisdiction given by the Oireachtas to the courts in extradition matters is extremely limited. When the extradition of a suspect is sought they have no jurisdiction to inquire as to whether he is innocent or not. As pointed out by Finlay P. in Archer v. Fleming (Unreported, High Court, 21st January, 1980):
“I am clearly satisfied that under the entire provisions of the Extradition Act and the arrangement of extradition of which it is a statutory implementation, that there cannot be any question of the courts in the requested country adjudicating upon the merits of the charge against the accused or reaching any conclusion, whether of a prima facie nature or otherwise, as to the guilt or innocence of the plaintiff seeking to set aside the extradition order in respect of the charges made against him. To permit the court in the requested country reaching adjudication on those issues would be entirely inconsistent, in my opinion, with the extradition code and entirely inconsistent with the applicable provisions of the Extradition Act, 1965. Even, therefore, were these proceedings brought on a plenary summons and even were the plaintiff in a position to seek from the court the declarations which are contained in paragraphs 1 and 2 of the endorsement of claim on this summons, I am satisfied that they are not declarations which could be made.”
By a parity of reasoning I do not think that the courts in a requested country when the extradition of a convicted person is sought can adjudicate on the validity of a conviction by a court in a requesting state. Clearly, this cannot be under s. 50 of the Act of 1965. Equally clearly, it cannot be done by the adoption of the procedural device such as proceedings by way of plenary summons for a declaration or by way of an application or an order of habeas corpus.
There is in this case an added factor which militates against the applicant’s claim. The court of the requesting state was not asked to adjudicate on the issue which it is now claimed invalidated its order, although it was competent to do so. In such circumstances, it would be contrary to the extradition arrangements into which our State has entered and to the principles which are to be found in the Act of 1965, that this court could now assert jurisdiction to inquire into the validity of the conviction.
It is, of course, true that in addition to the very limited statutory jurisdiction conferred on the court in extradition cases, the courts have inherent constitutionally conferred powers for the protection of constitutional rights. But I do not think that these can be invoked in this case. What the court is asked to do in the particular circumstances of this case is to investigate a complaint that
criminal assaults took place 11 years ago in another jurisdiction. It is clear that a fair and a judicial adjudication on this complaint is not possible and to attempt it would amount, in my view, to an unconstitutional exercise of the court’s judicial powers. I will, therefore, refuse the application under Article 40 and make no order for the release of the applicant under s. 50 of the Extradition Act, 1965.

The applicant appealed to the Supreme Court from the judgment and order of the High Court. T

Finlay C.J.
13th March 1990

This is an appeal brought by the applicant, who is a citizen of Ireland, against the order made in the High Court on the 28th July, 1989, by Costello J. refusing both a claim for release pursuant to s. 50 of the Extradition Act, 1965, and also a claim for release pursuant to Article 40 of the Constitution.
The applicant appealed on a number of grounds against the entire of that order made in the two separate proceedings which had been heard together. Upon the hearing before this Court of the appeal, however, counsel for the applicant expressly abandoned his appeal against the dismissal of his claim under s. 50 of the Act of 1965. This had been a claim that the offence for which the appellant had been convicted and in respect of the balance of the sentence arising from which his return to Northern Ireland was requested was a political offence and that the other offences which surrounded his escape from the Maze Prison were offences connected with that political offence. No reason was given for abandoning that appeal, though it may have been associated with the facts surrounding the offence which seemed to indicate that an attack was made on a house in which a member of the U.D.R. resided, and that it involved indiscriminate shooting into the house and into a car which arrived at the house as a result of which serious injuries to a number of men, women and children, who were members of the family, were caused.
With regard to the appeal against the decision of Costello J. on the application pursuant to Article 40 of the Constitution, two grounds of appeal were argued. They are:
1. That evidence now produced leads to the conclusion that the conviction of the applicant resulted from a statement signed by him which was untrue and which was obtained by assault and intimidation whilst he was in the custody of the R.U.C. It was then urged that accordingly to deliver him into Northern Ireland to serve the balance of the sentence imposed on him would be a failure to defend or protect his constitutional right.
2. That the evidence of the conduct of the prison staff towards prisoners in the Maze Prison, in the aftermath of the mass escape from the Maze Prison on the 23rd September, 1983, in which the applicant took part, together with the evidence of their later conduct and testimony in claims brought by prisoners for damages for assault, allied to the absence of any attempt by their superior authorities to discharge or discipline any member of the prison staff, led to a conclusion that to deliver the applicant to serve the balance of his sentence in the Maze Prison would be a failure to protect his constitutional rights.
Challenge to conviction of applicant
The applicant was arrested on the 26th March, 1978, in Northern Ireland, and was charged with attempted murder and a number of other offences arising out of an armed raid carried out by a number of men on the home of a family called Harper in Castlederg, County Tyrone, on the 2nd February, 1977.

Whilst in the custody of the R.U.C. on the 27th March, 1978, he made a statement, which he signed, admitting his participation in the raid, and identifying the type of weapon which he used and the part in the raid which he took, which consisted of firing at a car that arrived into the farmyard during the raid. Some of the details contained in this statement were, at his subsequent trial, corroborated in part by forensic evidence, though such evidence did not afford proof of the applicant’s participation in the raid.
He was tried before His Honour Judge Russell at the Crown Court in Belfast, sitting without a jury, and he was represented at the trial by a solicitor and by junior and Queen’s counsel. From the judgment of His Honour Judge Russell, which was exhibited in the High Court, it is clear that no challenge was made to the admissibility of this applicant’s statement, or to the method by which it had been obtained. The applicant did not give any evidence nor tender any evidence on his behalf. He was convicted of a number of offences and sentenced on the 1st June, 1979, to a number of different concurrent terms of imprisonment, the longest of which was eighteen years.
The applicant has now deposed on affidavit that this statement was untrue and that it was obtained from him by a mixture of physical assault and intimidation, and he has tendered two affidavits, from his mother and from a friend, both of whom visited him whilst he was in the custody of the R.U.C., seeking to support his complaints of ill-treatment. Although the applicant now denies guilt for the offences of which he was convicted, the only explanation given by him for his failure to give evidence either with regard to the admissibility of the statement or to the main issue of guilt or innocence, is that he did not think he would be believed. It was established by the respondent in the High Court that in Northern Ireland law the most ample rights of appeal exist from the findings of a Crown Court in which an accused is tried on a criminal charge by a judge sitting without a jury. They include a right of appeal without any leave to the Court of Appeal on any question of law and a right of appeal, with the leave of the court, on questions of fact or on mixed questions of fact and law. The Court of Appeal has in any appeal before it wide-ranging powers in the interests of justice, at its discretion, to admit fresh evidence. The applicant before this court did not seek to appeal his conviction.
Costello J. rejected this portion of the applicant’s claim upon a number of grounds, viz.
(1) That the court could not properly undertake an investigation into the validity of a conviction where extradition to serve an imposed sentence arising from such a conviction is sought.
(2) That the fact that the courts of the requesting state were never asked to adjudicate on the applicant’s present claim that his statement was inadmissible, means that for the courts of this state to do so would be contrary to the extradition arrangements which are contained and reflected in the Act of 1965.
(3) That what the court in this case was asked to do was to investigate a complaint that criminal assaults took place eleven years ago in another jurisdiction, and that the attempt to do so would be an unconstitutional exercise of the court’s judicial powers.
I agree with the decision of Costello J. and with the reasons for which he reached it.
In the course of his judgment he acknowledges that the court has, in addition to its powers under s. 50 of the Act of 1965, inherent powers for the protection of constitutional rights. The statement that the court cannot in an extradition case properly undertake an investigation into the validity of a conviction recorded in a requesting state must be understood as being subject to this inherent power. The facts of this case, in my view, go nowhere near establishing a situation in which this inherent power might be invoked and it is, therefore, not necessary for me to speculate on what might constitute, in any other case, such a situation. I would, accordingly, be satisfied that the applicant’s appeal on this ground must fail.
Mass escape from the Maze Prison
In my judgment delivered earlier this day in Finucane v. McMahon [1990] I.R. 165, I have set out in very brief form some of the legal principles which apply to a claim that delivery on foot of an order made pursuant to the Extradition Act, 1965, would constitute an invasion of or failure to protect constitutional rights, by reason of the fear of assault or ill-treatment. I see no reason to repeat them here, and I apply them to the consideration of this ground of appeal. I have also set out in that judgment a summary of the facts surrounding the mass escape from the Maze Prison on the 23rd September, 1983; the assaults and ill-treatment of prisoners which took place in its aftermath and the conspiracy on the part of the prison staff to cover up and deny these assaults.
These facts have again been proved in this case.
The issue of the conduct of the prison staff in the Maze Prison towards prisoners immediately after the mass escape in September, 1983, first arose before this Court in the case of Russell v. Fanning [1988] I.R. 505 the appeal in which was heard in March, 1987. At that time it was established that actions for damages had been instituted by a number of prisoners for assault by prison officers. They were pending and none had yet come to trial. No evidence was tendered to the Court of knowledge from independent sources on the part of the supervisors of the prison staff of the probable truth of those allegations. The case was made by the respondents that even if assaults had occurred in September, 1983, which they still denied, a repetition of them at a time when these actions by the prisoners were pending was highly unlikely. It was also contended that the existence of pending judicial proceedings afforded at least an explanation as to why disciplinary proceedings had not been instituted against any member of the prison staff. For this and other reasons, O’Hanlon J. was satisfied in the High Court that there was not any real probability of Russell being assaulted if he were returned to the Maze Prison, and that conclusion was affirmed by a majority of the members of this Court.
The situation has now drastically altered. The truth of these allegations concerning assault and ill-treatment is now clearly established and accepted by the authorities responsible, in so far as they are treating the remaining proceedings as assessments of damage. No form of disciplinary proceedings against prison staff could now possibly prejudice the claims still unresolved. No such disciplinary proceedings, however, have been initiated nor, on the evidence, is there any probability that they will be initiated. The documentary evidence adduced in this case tends to establish that the authorities with responsibility for the discipline of the prison staff had for many years very strong grounds for believing that a major breach of discipline had occurred in September, 1983. The fact that the applicant took part in this mass escape, even in the absence of any evidence especially identifying him with the injuries to prison officer Ferris, in my view, having regard to considerations above set out, makes it necessary for the Court, in order to protect his constitutional rights, to intervene by declining to permit his delivery to Northern Ireland on foot of the warrants. I would, therefore, allow the appeal on this ground.

Walsh J.
I agree with the judgment of the Chief Justice.

Griffin J.
I agree.

Hederman J.
I agree.

McCarthy J.
1. The section 50 claim
The affidavit of the applicant stated his belief that both the offences of which he was convicted and the offences alleged against him in pursuance of the escape were political offences or offences connected with political offences. In his judgment in the High Court, Costello J., said:
“In the s. 50 proceedings it is not now contested that the extradition should be refused on the grounds that (a) the original offence of the 2nd February, 1977, or (b) the offence relating to his escape from the Maze Prison were political offences and, indeed, it is accepted that I cannot make an order for his release under the section on any of the evidence adduced in those proceedings.”
The first ground of appeal set out in the notice of appeal challenged this finding as to political offences, but, at the start of the hearing of this appeal, this challenge as well as the claim itself under s. 50 was expressly abandoned.
2. The Article 40 claim
This claim is in two parts:
1. That the conviction was tainted by evidence (his own admissions) obtained by acts which were contrary to the guarantee under the Constitution of Ireland, 1937, and standards applicable in any civilised community. In a further affidavit he stated that on the 2nd February, 1977, he was present at a party at the Central Bar, Main Street, Letterkenny; further, there were affidavits by Brendan O’Donnell and Denis J. Doherty to the effect that each had seen the plaintiff in the Central Bar at approximately 8.30 p.m., on the 2nd February, 1977. The proceedings were heard by Costello J. on the 25th July, 1989 but the order made by him does not record that these affidavits were adduced in evidence, nor does his judgment refer to them. They are not mentioned in the notice of appeal. At the commencement of the hearing of this appeal, Mr. Clarke S.C. for the appellant expressly stated that he was “not standing over” the affidavit of Brendan O’Donnell. The alibi claim was not pursued in any form, and must be presumed to have been abandoned.
As to the challenge to the conviction, I agree with the conclusion of the Chief Justice that, subject to the inherent power of the Court to act for the protection of constitutional rights, the Court cannot in an extradition case properly undertake an investigation into the validity of a conviction recorded in a requesting state. The making of an extradition arrangement is a political, not a judicial, act; if a political arrangement such as that created by Part III of the Extradition Act, 1965, together with the reciprocal legislation of the United Kingdom Parliament in the Backing of Warrants (Ireland) Act, 1965, contemplates a warrant for the arrest of a person convicted of an offence in, amongst other places, Northern Ireland, then, subject to the constitutional proviso I have mentioned, the Court cannot inquire into the validity of the conviction.
2. The danger of ill-treatment.
In my judgment in Finucane v. McMahon [1990] I.R. 165, 226 I have already expressed my view as to the standard of proof required in circumstances such as those surrounding the proposed extradition of one of those who escaped in the mass escape from the Maze Prison on the 23rd September, 1983. In my conclusion that the applicant in Finucane’s case was entitled to an order under Article 40, I did not depend my view upon any fact that identified his case as being different from that of the present applicant. It follows that a like order should be made in this case. I would allow the appeal accordingly.

Minister for Justice v McArdle

[2005] I.E.H.C. 222
Judgment of Finnegan P. delivered on the 27th day of May 2005

This matter comes before me pursuant to the European Arrest Warrant Act 2003 section 16. As the warrant was endorsed under section 13 of the Act prior to the passing of the Criminal Justice (Terrorist Offences) Act 2005 the amendments effected by that Act to the 2003 Act do not apply.

The Respondent filed points of objection which were refined at the hearing to the following:-

1. Abuse of process.
2. Delay.
3. Breach of the Respondent’s rights under the Constitution and/or the European Convention on Human Rights.
4. It would be unjust, oppressive or invidious to surrender the Respondent.
5. The purpose of the European Arrest Warrant is to procure the return of the Respondent to Spain for the purposes of carrying out a form of preliminary enquiry or investigation.
The European Arrest Warrant Act 2003 section 16 provides as follows –

“16(1) Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under section 15(9), the High Court may, upon such date as is fixed under section 13, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her provided that –
(a) the High Court is satisfied that the person before it is the person in respect of whom the European Arrest Warrant was issued,
(b) the European Arrest Warrant, or a facsimile or true copy thereof has been endorsed in accordance with section 13 for the execution of the warrant,
(c) such undertakings as are required under this Act, or facsimile or true copies thereof, are provided to the court,
(d) The surrender of the person is not prohibited by section 22, 23 or 24 and
(e) the surrender of the person is not prohibited by Part III or the Framework Decision (including the Recitals thereto).”
On the evidence before me I am satisfied on the matters mentioned in paragraph 16(1)(a), (b), (c). With regard to section 22, 23 and 24 of the Act the necessary undertakings have been given and I am satisfied as required by the said sections. I am satisfied that the surrender of the Respondent is not prohibited by the Framework Decision including the Recitals thereto.

In these circumstances I must now consider the grounds of objection relied upon.

Abuse of Process

In short it was submitted that having regard to irregularities in the proceedings in Spain the Respondent ought not to be surrendered. I had in addition to Affidavit evidence the evidence of a Spanish lawyer called on behalf of the Respondent. The offence in respect of which surrender was sought occurred within the jurisdiction of the Court of Marbella, El Juzgado No. 3 and the warrant was issued by this Court. However the preliminary investigation of the death took place in Malaga within the jurisdiction of El Juzgado No. 5 where the hospital to which the victim was taken is situate. On Affidavit it was contended that the warrant ought to have been issued by the latter Court. The matter was however clarified both on Affidavit and on evidence and I am satisfied that in each case the jurisdiction was properly exercised under the law of Spain and that the correct Court to issue the warrant was El Juzgado No. 3.

With regard to the procedures undertaken in El Juzgado No. 5 these approximate to an inquest. The Respondent complains that following the proceedings in that Court his wife’s (the victim) body was released to him for repatriation and burial. No conditions or restrictions were placed on the release. He believed at that point that all investigations were concluded. At no time was he informed that an investigation was continuing or that there were any outstanding issues relating to his wife’s death or that he was suspected of having murdered or otherwise harmed her. On behalf of the Respondent it is argued that there was a decision not to proceed with any criminal investigation. I am satisfied that this is not the case. The proceedings before El Juzgado No. 5 were not criminal in nature but were akin to a coroners inquest in this jurisdiction. I am satisfied that the manner in which the matter progressed does not amount to an abuse of process on this ground. There was no decision not to pursue a criminal investigation: Juzgado No. 3 did not have jurisdiction in relation to criminal proceedings that jurisdiction being vested in Juzgado No. 5 within whose jurisdiction the alleged offence was committed.

The Respondent next argues that on the 21st October 2001 he was arrested on foot of a provisional warrant of arrest issued pursuant to the Extradition Act 1965 section 27(1) but was subsequently released the request for extradition having been withdrawn. I am satisfied that this was because at that time the State would not extradite one of its own citizens to Spain. Such extradition only became possible with the coming into effect of the European Arrest Warrant Act 2003 on the 1st January 2004. In these circumstances there is no abuse of process in seeking for the second time to extradite the Respondent.

Delay

The European Arrest Warrant Act 2003 section 40 provides as follows –

“40. A person shall not be surrendered under this Act where
(a) the act or omission constituting the offence specified in the European Arrest Warrant issued in respect of him or her is an offence under the law of the State, and
(b) the person could not, by reason of the passage of time, be proceeded against, in the State in respect of the second mentioned offence.
I take the view that the section requires me to consider delay in the same manner in which the same would have been considered under the Extradition Act 1965 section 50(2)(bbb). See Kwok Ming Wan v Assistant Commissioner Noel Conroy 1998 3 I.R. 527. The first matter to which I have regard is that prior to the coming into effect on the 1st January 2004 of the European Arrest Warrant Act 2003 extradition was not possible. The European Arrest Warrant was in fact issued on the 19th August 2004. In these circumstances I am satisfied that the delay itself is not exceptional. As to other exceptional circumstances, while having regard to my decision that the delay is not exceptional these are not relevant, these are set out in an Affidavit sworn on behalf of the Respondent by E. Braxton Reynolds a Forensic Scientist. He deposes that the elapse of almost five years since the victim’s death denies the Respondent the opportunity to test any of the forensic findings. Had the Respondent been aware that a criminal investigation had been envisaged he could have conducted his own autopsy or post mortem and sought information of the tests which had been carried out by the Spanish Authorities prior to the burial of the victim. I have no information as to the forensic evidence which will be available for the purposes of the prosecution of the Respondent. However it would be wrong to have regard to the delay from the commission of the alleged offence until the date of the issue of the European Arrest Warrant: regard must also be had to the attempt to extradite the Respondent made by the issue of the provisional warrant of arrest on the 20th October 2001, the date of the alleged offence being the 12th February 2000, at which time the Respondent became aware of the intention to prosecute. Delay at that time could not be regarded as exceptional and the Respondent at that time was in no better position to obtain forensic evidence. In these circumstances the Respondent has not satisfied me that there exists in this case any exceptional circumstance in the sense outlined in Kwok Ming Wan v Conroy. Having considered the circumstances as a whole I am satisfied that there has not been such delay as to prevent the Court making an order for the Respondent’s surrender.

Breach of the Respondent’s Rights under the Constitution and/or the European Convention on Human Rights

The European Arrest Warrant Act 2003 section 37 provides that a person shall not be surrendered if his surrender would be incompatible with the State’s obligations under the European Convention on Human Rights and the protocols to the Convention or any provision of the Constitution. Insofar as the Constitution is concerned this has always been the case: Larkin v O’Dea 1995 2 I.R. 485. With regard to the European Convention on Human Rights I believe the approach adopted in R. v Secretary of State Ex Parte Rachid Rimda 2002 EWHC 1278 (Admin) is the correct one. Sedley L.J. giving the judgment of the Court had this to say:

“There is however, one issue of law in which it may be helpful to express our view now. This concerns the Home Secretary’s reliance on recourse to the European Court of Human Rights to correct any eventual failure on the part of France to accord the claimant a fair trial. The European Court of Human Rights is not a court of appeal, and there is no recourse to it as of right (see Article 28) as Articles 13 and 35 of the Convention make clear, and as the Court itself has gone out of its way to stress (Kidla v Poland (2001) 10 BHRC 269). It is on national authorities that the primary duty both of compliance and of affording redress for non compliance rests. We do not consider that the Home Secretary would be justified, in spite of France’s monist system of law, in treating Strasbourg as part of the French legal system.”

Nothing has been urged upon me to suggest that in surrendering the Respondent for trial in Spain his constitutional rights or the rights enshrined in the European Convention on Human Rights will be abrogated.

It would be unjust, oppressive or invidious to surrender the Respondent.

The only argument to arise here is based on the same circumstances as relied upon in relation to delay. The delay is not such as to justify a refusal to surrender. The circumstances outlined in the Affidavit of the Forensic Scientist filed in the matter could not in my view render the surrender unjust, oppressive or invidious. These are matters to which any court would have regard at trial and it would run contrary to the policy underlying the Act of 2003 of mutual recognition to hold otherwise without cogent evidence. Indeed the argument for the Respondent necessarily involves the proposition that he should have been made aware prior to his wife’s burial at least of the possibility that he might be prosecuted: so to hold would place an impossible burden on prosecuting authorities.

The Purpose of the European Arrest Warrant is to Procure the Return of the Respondent to Spain for the Purposes of Carrying Out a Form of Preliminary Enquiry or Investigation

The warrant itself issued from El Juzgado de Instruction No. 5. Having regard to the Spanish criminal law system the description of the court might raise a concern in this regard. However I must have regard for the provisions of the Act. The Act in section 10 sets out the obligation to surrender –

“10. Where a judicial authority in an issuing state duly issues a European Arrest Warrant in respect of a person –
(a) against whom that State intends to bring proceedings for the offence to which the European Arrest Warrant relates.
That person shall, subject to and in accordance with the provisions of this Act and the Framework Decision be arrested and surrendered to the issuing state.”

The Arrest Warrant certifies as follows –

“That in the course of the enquiry carried out in this Court under NR 152/2000 for homicide against Michael Dermot McArdle a writ has been passed on date 9/19/01 with the agreement of the Public Prosecution ordaining the judicial arrest of Michael Dermot McArdle as accused of an alleged offence of homicide, in order to try him for that offence; and that it has also been agreed, by writ of the 10/26/01 and also in agreement with the Public Prosecutor’s request to propose to the Spanish Government the extradition of the accused, which was reiterated by writ of the 2/17/04. All of this to the aforementioned purpose of his trial for the said offence of homicide.”
On the basis of this certificate I am satisfied that the Respondent is a person against whom Spain intends to bring proceedings for the offence to which the European Arrest Warrant relates.

In the light of the foregoing findings I propose making an Order that the Respondent be surrendered.

Approved: Finnegan P.

Marques v Minister for Justice and Equality

[2018] IECA 174
JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 18TH DAY OF JUNE 2018

1. The United States of America has been seeking the extradition of the appellant ever since it communicated a request for a provisional warrant for his arrest on grounds of urgency to the Minister for Justice (“the Minister”) under Part II of the Extradition Act, 1965 (“the Act”) on 29th July 2013.

2. The appellant was arrested on foot of a warrant issued by the High Court on the 1st August 2013, and held in custody here pending a determination by the High Court of the formal request for his extradition which was communicated by Diplomatic Note on the 13th August 2013. Many grounds of objection were raised by the appellant in the High Court when resisting the application by the Attorney General under s. 29 of the Act to have him committed to prison until such time as the Minister made an order for his extradition under s. 33 of the Act. The High Court (Donnelly J.) made an order under s. 29 on the 16th December 2015, having rejected the grounds of objection raised by the appellant.

3. That order was the subject of an appeal to this Court which was dismissed for reasons contained in a written judgment (Peart J.) delivered on the 12th December 2016.

4. The appellant had issued separate judicial review proceedings which were heard in the High Court at the same time as the extradition proceedings. In those proceedings the appellant sought to quash a decision made by the Director of Public Prosecutions not to prosecute the appellant in this jurisdiction in respect of the offences for which his extradition was being sought. His solicitor had written to the DPP making such a request, highlighting the sentence regime that the appellant would face if extradited and convicted in the United States, as well as his personal circumstances, including that he suffers from Asperger’s Syndrome, and the harsh prison conditions that he would inevitably face if convicted. The letter also indicated his client’s willingness to enter a guilty plea, if prosecuted here by the DPP, so as to assuage any fears that she might have that that there could be evidential difficulties which might prevent a successful prosecution in this jurisdiction.

5. It suffices to say that by order dated the 16th December 2015, the High Court (Donnelly J.) refused that application for judicial review. That decision was also the subject of an appeal to this Court which, for reasons appearing in a separate written judgment (Peart J.) delivered on the 12th December 2016, was also dismissed.

6. Following the dismissal of those appeals, the appellant made an application to the Supreme Court for leave to appeal. This was refused. He further sought to bring his case before the European Court of Human Rights, including for a stay on his extradition. That application was refused on the 1st June 2017.

7. Following the refusal of leave to appeal to the Supreme Court, the Chief State Solicitor wrote to the appellant to inform him that his extradition would then proceed immediately.

8. Upon receipt of that letter, the solicitor acting for the appellant wrote to the Chief State Solicitor on the 31st May 2017 asking that, in the event of the Minister deciding to order surrender under s. 33 of the Act, the reasons for so deciding should be provided. There was no response to that letter prior to the Minister making an order for the appellant’s extradition under s. 33 of the Act on the 1st June 2017 directing his surrender to a person duly authorised by the United States of America to receive him. The appellant learned of that order only when members of An Garda Síochána arrived to arrest him at the prison in which he was being held and take him to Dublin Airport in order to effect his surrender. That move led immediately to an application to the High Court for leave to seek a judicial review of the s. 33 order on the grounds, inter alia, that she be required to provide the reasons for her decision to make that order in the light of the discretionary nature of her power under s. 33 and the provisions of s. 15 of the Act.

9. It appears that upon the making of that application for leave to seek a judicial review, the appellant’s solicitor was handed a letter dated 2ndJune 2017 which contained the Minister’s reasons for her decision to make the order under s. 33 of the Act. This letter was from the Mutual Assistance Division within the Minister’s department. It advised that the Minister had signed an order under s. 33 of the Act directing the extradition of the appellant to the relevant authorities in the United States, and gave certain reasons for the decision which I address later in this judgment.

10. It was agreed between the parties that there would be a telescoped hearing of these judicial review proceedings. They were listed for hearing on the 25th October 2017. Following that hearing, the trial judge delivered a written judgment on the 30th November 2017 explaining her reasons for refusing to make the orders sought, including one of certiorari to quash the Minister’s order under s. 33 of the Act for insufficiency of reasons and the failure by the Minister to ascertain and consider the reasons why the DPP had previously decided not to prosecute the appellant in this jurisdiction in respect of the extradition offences. The appellant now appeals to this Court.

11. Section 33(1) of the Act provides:

“33.(1) Subject to sections 31 and 32 [not relevant] the Minister may, if the person committed is not discharged by the decision of the High Court in habeas corpus proceedings, by order direct the person to be surrendered to such other person as in his opinion is duly authorised by the requesting country to receive him and he shall be surrendered accordingly.”
12. I have highlighted the word “may” in s. 33(1) as it is the discretionary nature of the power given to the Minister by this section that is relied upon by the appellant.
13. The appellant also relies upon s. 15(2) of the Act which provides:

“Extradition may be refused by the Minister for an offence which is also an offence under the law of the State if the Director of Public Prosecutions or the Attorney General has decided either not to institute or to terminate proceedings against the person claimed in respect of the offence.” [Emphasis provided]
14. I have already made reference to the earlier judicial review proceedings wherein the appellant had sought to quash the DPP’s decision not to prosecute him for the extradition offences in this State. The issue now raised is a different one. It is essentially that where “extradition may be refused” under s. 15(2) of the Act where the offence is also an offence under the laws of this State, and the DPP has decided not to prosecute him, the Minister needs to know the reasons for the decision not to prosecute before she can properly exercise her discretion whether or not to make a s. 33 surrender order, since the reasons could be a relevant factor to consider.
15. A further issue raised by the appellant is whether or not the reasons given by the Minister in her letter dated the 2nd June 2017 for her decision under s. 33 to order the appellant’s surrender are adequate.

16. In a most detailed written judgment delivered on the 30th November 2017, the trial judge determined each of these issues against the appellant. Her conclusions are succinctly summarised in para. 82 of her judgment as follows:

“82. For the reasons set out in this judgment, I am satisfied that:

(a) Section 15 (2), and indeed s. 33 (1) of the Extradition Act 1965, grant to the Minister a residual discretion to refuse to order the extradition of a requested person who has been committed to prison under the provisions of s. 29 of the Act of 1965 where the High Court is satisfied that the requirements of the Act have been met and extradition is not prohibited.
(b) It was not necessary for the Minister to obtain the DPP’s reasons for non-prosecution prior to exercising her discretion under s. 15 (2) of the Act of 1965.

The High Court’s judgment
The Minister’s discretion in s. 15(2) and in s. 33 of the Act
17. In her consideration of the discretionary nature of s. 15(2) and of s. 33 of the Act, and the interplay between the two, the trial judge referred to the treaty origins of those provisions, and in particular Article 9 of the European Convention on Extradition (“the Convention”), done at Paris on the 13th December 1957. Part II of the Act is, as noted by the trial judge, the domestic implementation of the Convention. At para. 28 of her judgment, she noted that in most instances where the State was given a discretionary right to refuse extradition on a particular basis, the Oireachtas had chosen to implement that discretionary right by an affirmative prohibition on that ground – e.g. in relation to offences which attract the death penalty in the requesting state or, as provided for by Article 7 of the Convention, on the basis of the place of commission of the offence. The trial judge went on to state in relation to the current s. 15 (as substituted by s. 27 of the 2012 Act):

“This State has decided not to avail of discretionary right contained in Article 7 (1) of the Convention and Article III of the Integrated Treaty [Integrated Treaty between the United States of America] to have a blanket refusal for all extradition requests for offences committed on the territory of Ireland”.
18. This represented a change from s. 15 as originally enacted which had, in accordance with Article 7.1 of the Convention, provided for a mandatory prohibition of extradition in respect of an offence regarded under the laws of the State as having been committed in the State. At para. 28 of her judgment she stated:
“28. … The Oireachtas has chosen to implement the second paragraph of Article 9, which gives to a contracting state the right to refuse extradition if a decision has been made not to prosecute, in a different way. This was done, not by making it mandatory for the court to refuse extradition in those circumstances, but by giving to the minister a discretionary right to refuse extradition. Thus, there is no prohibition on extradition where the prosecuting authority in this jurisdiction had made a determination either not to initiate proceedings or to terminate those proceedings; the minister has a discretion to refuse to extradite if that has occurred. From the perspective of Ireland’s international obligations, this manner of implementation is in perfect accord with the provisions of the Convention and the Integrated Treaty. Ireland could have refused all extradition in these circumstances but it did not do so. Instead the legislation leaves a discretion in the hands of the minister to refuse.”
19. As for the Minister’s discretionary power under s. 33 (1) of the Act to make an order for surrender, the trial judge noted that it was different from that contained in s. 15(2) of the Act. In that regard, the trial judge stated:
“The residual discretion in s. 33 (1) of the Act of 1965, to which the Minister has referred, appears to have a different origin from that of s. 15(2) of the said Act. Indeed, the discretion granted therein is probably more readily understandable as the purely political (in the sense of global politics) discretion alluded to by the Minister. The Convention and the Integrated Treaty contain mandatory and discretionary grounds upon which extradition must, or, as appropriate, may be refused. Those grounds for refusing extradition are contained in the Act of 1965. Section 33 (1) on the other hand, appears to reflect an overarching right of the Minister to refuse extradition despite compliance of the request with the provisions of the Act, the Convention and the Treaty. Ireland may be held accountable at an international level for failure to comply with its obligations if there is a refusal to extradite which is not based upon a ground permitted under the Convention or Integrated Treaty. Conversely, there is no cause for complaint by requesting state if the Minister decides to refuse extradition on the basis of the grounds set out in Article 9 of the Convention or Article IV(a) of the Integrated Treaty which is contained in s. 15(2) of the Act of 1965.”
20. It was the appellant’s argument that it is the discretionary nature of the Minister’s power under s. 15(2) which could have permitted the Minister to decide not to make the s. 33 order, in the light of the DPP’s decision not to prosecute him in the State for the extradition offences, and therefore that the Minister must know the DPP’s reasons. It is argued that those reasons would be a relevant consideration to the exercise of the discretion to refuse extradition. The applicant does not agree that the section is simply permissive in the sense of merely enabling the Minister to refuse extradition in the event that the DPP decided not to prosecute, for whatever reasons the Minister might have over and above the mandatory statutory prohibitions contained in the Act.
21. The trial judge went on to note that s. 15(2) does not make any express provision as to how the discretion provided for should operate. She noted in para. 33 of her judgment that:

“ … The Minister contends that s. 15(2) merely provides a residual discretion, whereas the applicant contends that in order to be operable, the Minister has to have certain information, including the reasons from the DPP for not prosecuting”.
22. The trial judge reached her conclusions as to the nature of the discretion which the Minister has under s. 15(2) as follows:
“36. The discretion provided for in s. 15(2) has been left deliberately with the executive rather than with the courts. It is not a mandatory ban on extradition but gives a discretion to refuse extradition even when the DPP has not initiated a prosecution. Leaving the discretion with the Minister may reflect the essentially political nature of extradition as distinct from the judicial cooperation procedure under the European Arrest Warrant surrender provisions. Extradition (as distinct from surrender) operates at the level of agreement between States where the role of the courts is to oversee compliance with the terms of the Extradition Act. The Courts’ role is to ensure that the requested person is not extradited unless such extradition is lawfully permitted. The protection of a requested person’s rights is fundamentally a matter for the courts under the scheme envisaged by the Act of 1965. The courts’ role in surrender procedures is also to ensure rights are protected, but the essential difference is that the executive plays no role in the decision to surrender – that is solely a matter for the courts.
37. This method of implanting [sic] Article 9 of the Convention by the granting of a discretion to the Minister deliberately removes from the courts the decision-making role as to whether extradition should be refused where a decision not to prosecute has been made by the Director of Public Prosecutions. That is an important fact in this case because, unlike other bars to extradition, s. 15(2) grants no right to a requested person not to be extradited for an offence under the law of the State where the DPP has not initiated a prosecution. The courts have no role in that decision although the courts retain a role in ensuring that the decision-making process is carried out in a lawful manner. At most therefore, s. 15(2) creates a right for the requested person to have the Minister exercise her discretion in a lawful manner.”

23. The trial judge then went on to consider the nature and extent of the Minister’s discretion, and how it should be exercised. She noted that the express provisions of s. 15(2) does not delineate the parameters of that discretion, and stated that it was “the duty of the Minister, and ultimately the courts, to ensure that the discretion granted by the legislature is correctly exercised … It is a matter of construction of the subsection, which is located within the Act implementing our international commitments regarding extradition, which will provide the basis for interpreting the role of the Minister”. She went on:
“39. The architecture of the Act of 1965 encompasses the fundamental procedures on which extradition requests are dealt [sic]. No person may be extradited unless the High Court has adjudicated upon the merits of the application. The High Court is even required to adjudicate on whether extradition may lawfully be permitted where a requested person consents to surrender. The scheme of the Act is that the requested person’s rights are protected through the High Court’s adjudication on whether extradition is lawfully permitted or not. Subsection 15(2) must be interpreted in that context.”
24. The trial judge concluded on the nature of the discretion by stating:
“40. The applicant has submitted that s. 15(2) and/or s. 33(1) requires the Minister to carry out a detailed analysis as to whether extradition should be refused on “compassionate” grounds i.e. at a standard less than the courts apply when considering issues such as the potential for a breach of constitutional rights. The courts have already carried out the enquiry into whether the applicant’s rights have been and will be protected, using the appropriate standard of proof in that regard. From a close perusal of the Act of 1965, there is no basis for interpreting s. 15(2), or indeed s. 33 (1) in a manner which would grant an even greater right to protection from extradition than those expressly set out in the Act of 1965 which are adjudicated upon by the courts, by requiring the Minister to carry out an assessment based upon a lesser standard.
41. It is ultimately a matter for the Minister to decide in any given case if extradition should be refused under s. 15(2) of the Act of 1965. This is not to say that the Minister is making a “political” decision but it is a decision within the executive sphere. The right of the Minister to refuse extradition in those circumstances does not create a right not to be extradited. In that sense the discretion is residual.”

The Minister’s obligation to seek out and consider the DPP’s reasons not to prosecute
25. Having so concluded as to the nature of the Minister’s discretion, the trial judge proceeded to address the question as to whether the Minister was obliged to seek out and consider the DPP’s reasons for not commencing a prosecution in this State in respect of the extradition offences in order to properly exercise her discretion whether to make an order under s. 33 of the Act. The Minister’s view on that question is that it is neither necessary nor appropriate that she should seek an explanation from the DPP as to why a decision not to prosecute was taken. The appellant argued that although the DPP was in general not required to provide reasons to the suspect or to the victim of an alleged crime, it is not an absolute immunity. Reference was made to the requirement to give reasons under the EU Victim’s Directive (Directive 2012/29/EU) or where there was some evidence of mala fides or improper purpose. The appellant submitted in the High Court that where such a decision impacted upon a decision to extradite, there was no reason why the DPP ought not to be asked for her reasons, and that it could not be argued, as it would be generally, that it would be unduly burdensome for her to be required to do so in the small number of cases where this issue might arise in an extradition context.
26. The Minister’s submission relied upon the special independent position of the DPP under the Constitution, as recognised in cases such as Carlin v. DPP [2010] 3 IR 547, and Monaghan v. DPP [2007] IEHC 92.

27. The trial judge considered that on the plain and ordinary meaning of the wording of s. 15(2) there was intention evinced on the part of the legislature to create a statutory exception to the immunity otherwise accorded to the DPP in relation to decisions not to prosecute, and indeed that the Act of 1965 is not directed to the DPP, albeit that the DPP is referred to in s. 15(1) of the Act. She was also satisfied that that s. 15(2) did not impose any obligation on the Minister to seek the DPP’s reasons. She therefore considered that it could not have been the intention of the legislature that the Minister could not make a decision to extradite because she did not know the reason for the decision not to prosecute in this jurisdiction. In that regard she stated at para. 51:

“ … I am quite satisfied that s. 15(2) did not impose upon the Minister a requirement to seek those reasons. The absence of a statutory right to those reasons and the well enunciated practice of the DPP to only give reasons in limited circumstances would make any request for those reasons entirely irrelevant”.
28. The trial judge concluded on this issue at paras. 53 and 54 by stating:
“53. While the applicant may have some complaints that it is unsatisfactory that the legislation grants a discretion without providing a statutory pathway for the decision-maker to have full knowledge of the reasons for the non-prosecution, that does not take from the ability of the Minister to exercise her discretion and for the courts to adjudicate upon it. Ultimately, the subsection does not create a right for a requested person not to be extradited; all it provides through ministerial discretion, is for this State to exercise a lawful option provided in the Convention/Integrated Treaty to refuse surrender where a decision not to prosecute or to terminate prosecution has been made. The provision leaves it open to the Minister to refuse extradition on the basis of reasons “which are beyond the statutory bars to extradition” as referred to in her statement of opposition and submissions. It is not necessary to enumerate those situations in legislation or indeed in this judgement. Those circumstances will no doubt be decided by the Minister if and when they arise.
54. In conclusion, the subsection permits the Minister to make a lawful decision, at a national and international level, to refuse to extradite even where the DPP has made a decision not to prosecute for the alleged offence. She is not required to know the DPP’s reasons for non-prosecution before she makes her decision to extradite.”

Adequacy of the Minister’s reasons contained in her letter 2nd June 2017
29. The trial judge set out in its entirety the appellant’s solicitor’s letter dated the 31st May 2017 in which she set out a number of reasons why the Minister ought not to make an order under s. 33 of the Act, in the exercise of the discretion which the Minister has under s. 15(2) of the Act, and sought the reasons of the Minister for making any decision under s. 33 of the Act in the event that the Minister was to make an order under s. 33. I should clarify that at the point in time that this letter was written the appellant’s solicitor was unaware as to whether a s. 33 order had been made, but clearly apprehended that if one was not made by that date, a decision as to whether to make the order was imminent, given the fact that the Supreme court had so recently refused leave to appeal.
30. This letter referred to the very serious nature of the extradition offences, the appellant’s offer to plead guilty if prosecuted here, the refusal of that offer by the DPP, and her failure to give any reasons for her decision not to prosecute the appellant. It referred to the statutory function upon the Minister under s. 15(2) and stated that in order to exercise that function the Minister needed to know the DPP’s reasons for deciding not to prosecute the appellant here. The letter went on to describe the personal circumstances of the appellant, his age, the prospect of him facing a far lengthier sentence if convicted in the United States than if he was convicted here, and the harsh prison regime he would face if extradited. It urged in addition that extradition should be refused by the Minister on the basis that the DPP has refused to prosecute the appellant where this is both possible and in the public interest. The penultimate paragraph of the letter stated:

“We would ask that you not make your order unless you have satisfied yourself that the decision not to prosecute is based solely on legitimate considerations and that extradition is in the public interest. Please note that [the appellant] would consent to any procedure that would secure his guilty plea in this jurisdiction instead of his being extradited. In the event that you decide to extradite, we require a reasoned decision from you setting out why this is so. We request that this be provided in sufficient time that our client can consider it.”
31. As already referred to, a letter in response to the above was provided to the appellant’s solicitor on the occasion of the appellant’s application to the High Court for leave to seek judicial review of the s. 33 decision, to which I referred at para. 9 above. The letter stated that the Minister took into consideration the extensive court proceedings and the contents of the letter dated the 31st May 2017 from the appellant’s solicitor. It made the point that it had been open to the appellant to raise any issues of concern during the course of the various proceedings that had occurred. It noted the decision of the DPP not to prosecute the extradition offences in this jurisdiction, highlighting the independence of the office of the DPP. It stated that the Minister considered that it was neither necessary nor appropriate that she should seek an explanation from the DPP as to the reasons why a decision was made not to prosecute the appellant in this jurisdiction. It went on to say that in arriving at a decision to make the order under s. 33 the Minister took into account also the views of both the High Court and the Court of Appeal arising from the judicial review proceedings brought by the appellant, and drew attention to the subsequent determination of the Supreme Court to refuse leave to appeal.
32. In arguing the inadequacy of the reasons given in this letter, the appellant had referred in the High Court to the judgments in Mallak v. Minister for Justice [2012] 3 IR 297; A.M.N. v. Refugee Appeals Tribunal and MJELR [2012] IEHC 393; and McDonagh v. The Commissioner of An Garda Siochana [2015] IEHC 390. It was submitted that it was no longer adequate for the decision maker to merely acknowledge the arguments made and that there had to be a proper engagement with the matters raised in the solicitor’s letter, and since this was not done in the letter received in response, the reasons were deficient.

33. The Minister’s response to those submissions was, according to the trial judge’s judgment, that the nature and extent of reasons varied according to the subject matter of the decision. Reliance was placed upon the judgment of Clarke J. (as he then was) in EMI Records Ltd v. Data Protection Commissioner and Eircom Ltd [2014] 1 ILRM 225 where he stated at p. 249:

“It follows that a party is entitled to sufficient information to enable it to assess whether the decision is lawful, and, if there be a right of appeal, to enable it to assess the chances of success and to adequately present its case on the appeal. The reasons given must be sufficient to meet those ends.”
34. Counsel for the Minister also distinguished the circumstances of the present extradition decision from the types of decision at issue in the case upon which the appellant had relied. Counsel referred to the judgment of Hardiman J. in F.P. v. Minister for Justice, Equality and Law Reform [2002] 1 IR 164. The decision in that case was one taken by the Minister to refuse leave to remain on foot of an application made in that regard under s. 3(3) of the Immigration Act, 1999. One of the issues was the adequacy of the reasons provided by the Minister for the decision to refuse leave to remain. The letter from the Minister communicating the refusal of the leave to remain application stated as relevant:
“In reaching this decision the Minister has satisfied himself that the provisions of s. 5 (prohibition of refoulement) of the Refugee Act, 1996 are complied with in your case.
The reasons for the Minister’s decision are that you are a person whose refugee status has been refused and, having regard to the factors set out in s. 3 (6) of the Immigration Act, 1999, including the representations received on your behalf, the Minister is satisfied that the interests of public policy and the common good in maintaining the integrity of the asylum and immigration system outweigh such features of your case as might tend to support your being granted leave to remain in this State.”

35. The trial judge, having noted that s. 3(6) of the Immigration Act, 1999 set out a full list of matters to which the Minister was obliged to have, unlike provisions at issue in the present case, summarised the Minister’s submission as follows at para. 64 of her judgment:
“In the minister’s submission, the decision was made in accordance with well-established principles. Sufficient information had been given to the applicant. The respondent had regard to the relevant considerations in making her decision. Counsel distinguished the cases of A.M.N and McDonagh on the facts of each case and pointed to the specifics of the minister’s response in the present case. That response engaged with each of the points that the applicant had raised in his letter of 31st May, 2017.”
36. At paras. 66 and 67 of her judgment the trial judge stated:
“66. The nature of the decision that the minister was required to make in this case has been discussed in some detail above. The minister’s discretion is a residual discretion to refuse surrender in circumstances where the DPP has decided not to prosecute. The nature of the discretion limits the extent to which reasons must be given. This is not a decision for the minister that is akin to the decision-making of the Refugee Appeals Tribunal. The latter type of decision making requires a significant engagement with evidence such as the medical report presented in the case of A.M.N relied on by the applicant.
67. In the present case, the letter of 31st May, 2017 has been presented as referring to two separate issues. The first issue was the obtaining of reasons from the DPP to prosecute in this jurisdiction and secondly, issues concerning his personal circumstances. Indeed, it can be observed that the letter merged these two matters as the references to his personal circumstances were made in the context that he should be prosecuted domestically rather than be sent to the United States of America.”

37. Having addressed what were identified by the appellant as being eight points raised in the letter written to the Minister on the 31st May 2017 the trial judge concluded at para. 77:
“In the light of the points that the letter made, I am quite satisfied that the minister’s letter was a reasoned response to the issues raised. The nature of the decision, being the minister’s decision to order extradition after all court processes had been dealt with, did not require an extended or detailed consideration of all issues. The minister, in fact, did deal with the issues raised by the applicant and gave her reasons for rejecting them. The issues raised were interlinked, and indeed repetitive. The reasons given covered those points, the most important being that the DPP was independent and that it was neither necessary nor appropriate for the minister to seek an explanation from the DPP. The reasons given are adequate and the minister took into account all relevant considerations.”

Appellant’s submissions on appeal
38. The grounds of appeal contained in the appellant’s notice of appeal can be adequately summarised as follows:
(a) The trial judge was wrong to hold that the Minister was not required to obtain the DPP’s reasons for non-prosecution, since those reasons were potentially relevant to the decision whether or not to extradite.
(b) The trial judge was wrong to conclude that s. 15(2) is merely permissive, and does not oblige the Minister to consider specific matters, for example the fact that the DPP has decided not to prosecute the appellant.

(c) The trial judge was wrong to hold that it was not appropriate to seek the DPP’s reasons for non-prosecution in the light of the independence of, and the immunity attaching to, that office, and that the need on the Minister’s part to assess all information relevant to the s. 33 decision outweighed any general considerations in support of a blanket immunity from giving reasons.

(d) The trial judge was wrong to conclude that the reasons given by the Minister for her decision to make the s. 33 order were sufficient and that all the relevant matters had been considered, and in particular given that the Minister’s letter did not say what her reasons were, and merely referred to having considered the matters raised by the appellant in his solicitor’s letter.

(e) The trial judge was wrong to conclude that the residual discretion found in s. 15(2) of the Act limited the extent to which reasons must be given, in circumstances where there is no guidance in the Act by which the appellant can understand what discretionary matters the Minister had regard to.

(f) The appellant was entitled to know the specific reasons for the decision to make the s. 33 order, given the wide discretion the Minister has in relation to matters she may consider, and the trial judge was wrong to conclude that the nature of that decision, taken after all court proceedings had concluded, did not require an extended or detailed treatment of all issues when giving reasons.

39. Essentially, the appellant’s legal submissions to this Court repeat the submissions that were made in the High Court, and to which I have referred in some detail. The appellant argues, in accordance with the grounds of appeal, that in all the respects identified therein the trial judge fell into error.
40. The Minister has argued that the trial judge was correct to conclude as she did in her written judgment, and essentially repeats the submissions made to the High Court.
Conclusions of the appeal

Sections 15(2) and 33 of the Act
41. The analysis of these provisions by the trial judge as contained in her judgment and which I have summarised above is entirely correct. I would simply add some further comment.

42. Extradition is a process of international cooperation in the criminal sphere between sovereign states whereby under some form of bilateral or multi-lateral treaty or Convention contracting states agree the basis on which persons may be sought by, and surrendered to, the requesting state from the requested state for the prosecution of offences of which they stand accused, or to serve a sentence already imposed following a conviction in the requesting state. It is not a criminal proceeding. It involves no finding of guilt or innocence. It is a process of surrender only. No rights of individuals are created as such by extradition treaties or conventions, albeit that where it is established that the fundamental rights of the requested person will be breached if he/she is surrendered, the court determining whether the requirements of the domestic law which give effect to the treaty or convention have been complied with, may nevertheless refuse to permit surrender for that reason. To this extent extradition is, as has often been said, a procedure or type of proceedings that comes before the court which is sui generis in nature emanating, as it does, from the sovereignty of states, and the concomitant right of such states to prosecute offences as part of its right to uphold the rule of law in a democratic society.

43. It is important in the context of the present case to emphasise the non-creation of individual rights in the Convention to which effect is given by Part II of the Act. As the trial judge has explained so clearly and in my view correctly, s. 15(2) of the Act gives effect to that part of Article 9 of the Convention which provides that “extradition may be refused if the competent authorities of the requested Party have decided either not to institute or to terminate proceedings in respect of the same offence or offences”. That is an agreement between the contracting parties to that Convention. It does not create an individual right upon any individual whose extradition is requested not to be extradited in such circumstances, or to seek not to be extradited. Whether or not the Minister chooses for whatever reason to refuse to surrender a person to the requesting state where the DPP has decided not to prosecute the extradition offences in this jurisdiction or has terminated any such prosecution is a matter solely for the decision of the Minister. The contracting parties to the Convention have agreed in effect that the Minister may choose to do so.

44. The appellant has no individual right arising from the Convention, the Act or otherwise, to have his extradition refused by the Minister on the ground that the DPP has decided not to prosecute him for the extradition offences, or even to seek to have his extradition refused on that basis. While there is nothing to prevent the appellant requesting that the minister avail of his power under s. 15(2) of the Act, and to not make an order under s. 33 for that reason, there is no obligation on the Minister to give reasons, in the judicial review sense of ‘reasons’ in the event that he does not refuse surrender on the basis of s. 15(2). The making of the request, and the seeking of reasons from the Minister should he proceed to make the s. 33 order, does not alter the fact that he has no right to seek to have his extradition refused.

45. It follows inexorably that the appellant has no entitlement to require the Minister to obtain from the DPP her reasons for deciding not to prosecute him, before any decision to make the order under s. 33 is made. It is a matter solely and entirely for the Minister to invoke s. 15(2) if he wishes to refuse extradition on some other basis than those provided for specifically in the Act which is giving effect to the agreed terms of the Convention/Integrated Treaty. He does not have to explain either why he has not considered refusing extradition under that section, or if he has so considered, why he has decided not to refuse.

46. In his previous judicial review proceedings the appellant had sought to argue that he was entitled to the DPP’s reasons for her decision not to prosecute him in this State for the extradition offenses. The DPP had responded to a letter from his solicitor in which she stated that she had reached her decision not to prosecute him in accordance with the DPP’s Guidelines, and that it was not her practice to give reasons for that decision. In my judgment in his appeal against the High Court’s refusal of judicial review reliefs including a declaration that the failure to provide reasons for deciding not to prosecute amounted to a breach of fair procedures ([2016] IECA 373), I stated:

“22. … in the present case one must look at the appellant’s complaint as to the adequacy [of] reasons given for the decision not to prosecute, in the context where, as he conceded, and as is clearly the case, he has no right, be it statutory, constitutional or otherwise, to be prosecuted for an offence here, even where he offers a plea of guilty. There is simply no such right known to the law. It has always been thus, as is stated by Finlay C.J. in State (McCormack) when he stated: ‘the constitutional right of access to the courts is a right to initiate litigation, not a right to compel suit or prosecution’. The fact that the DPP is responsible for deciding whether or not to prosecute an offence, and the fact that s. 15 prohibits surrender as provided therein, does not create a right in favour of somebody such as the applicant whose extradition is sought to be prosecuted here for the offence for which that extradition is sought.
23. The decision not to prosecute the appellant affects no recognised right in law. In my view it follows that he has no free-standing right to be given the reasons for the decision not to prosecute. The right to reasons must relate back to the type of decision under scrutiny and to some right actually engaged. If he has no right even to request what he is requesting, he has no right to reasons why his request is refused. This is clear from the authorities to which the Court was referred both in the High Court and on this appeal, and is encapsulated in the short passage already quoted above from Clarke J’s judgment in Rawson. None of the well-known authorities which have been relied upon by the appellant even suggest that a decision made which affects no right to which the person has an entitlement must be explained by the giving of reasons for it.”

47. These comments are apposite also in the present appeal given my conclusion that the appellant has no right to a refusal of his extradition because the DPP made a decision not to prosecute him, and no right even to require the Minister to consider exercising the power to refuse his extradition under s. 15(2).
The adequacy of the Minister’s reasons for making the s. 33 order
48. I entirely agree with the conclusions reached and expressed by the trial judge in her judgment and as expressed by her at para. 77 of her judgment from which I have quoted above, and it is unnecessary to add anything further. The reasons given by the Minister are clear, and particularly given my conclusions in relation to the seeking of reasons from the DPP nothing more was required to be explained in relation to the decision under s. 33 of the Act.

49. For all these reasons I would dismiss this appeal.

Langan v. O’Dea

[1997] IEHC 159 (10th October, 1997)
THE HIGH COURT
1996 No. 540Sp
IN THE MATTER OF THE EXTRADITION ACTS 1961 – 1995
BETWEEN
GARY LANGAN
APPLICANT
AND
EDWARD O’DEA, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
JUDGMENT of Mr Justice Kelly delivered ex tempore on 10th October, 1997
at Derby Crown Court on the 16th October, 1990 the Applicant was convicted of robbery . The offence in respect of which he was convicted took place on the 4th June, 1988. On that date the Applicant and an accomplice entered a Co-operative store in Derby. There they produced knives and threatened staff and customers. The manageress was forced to open a safe and hand over cash in the sum of £300 to the Applicant and his accomplice.
1. The Applicant pleaded not guilty to this offence. He was convicted and sentenced to a term of 7 years imprisonment.

2. In September, 1991 he was serving that sentence at HM Prison Dartmoor. On the 26th of that month he was temporarily transferred from that prison to the Royal Naval Hospital at Plymouth but remained in the lawful custody of the Governor of HM Prison Dartmoor.

3. Within two days of his transfer to the hospital the Applicant had made contact with two of his friends. He contacted them by phone from the hospital where he was receiving treatment. With their help he escaped from the hospital on the 28th September, 1991.

4. On the following day he fled to Ireland. He was accompanied by his family on this journey which was made by ferry. His family had been residing in England for about two years prior to the Applicant’s conviction.

5. Having arrived in Ireland the Applicant lived in hostel accommodation for six weeks. He and his family then obtained permanent accommodation at 23 Kilcarrig Green, Tallaght. There they remained for one year. Then they moved to 515 Collins Avenue, Dublin were they resided for a further two years. They then moved to Ballyduff, Tralee, County Kerry. During all of this time they have been in receipt of Social Welfare and Health Board assistance.

6. Meanwhile, the Applicant was on the 1st October, 1993 arrested and charged with a burglary at Collins Avenue in Dublin. He was given bail in respect of that charge. The case was listed for hearing on the 26th July, 1994. The Applicant attended Court on that day but absconded before his case was called on for hearing. He remained unlawfully at large until he was arrested on either the 23rd October or 23rd November, 1994. There is some dispute as to the correct date but little turns on it. On whichever of those dates is correct, the Applicant was arrested and charged with another robbery in this country. The Affidavit evidence is to the effect that he was also charged with possession of firearms, possession of an offensive weapon and false imprisonment. He gave evidence before me and denied that he was charged with these latter offences.

7. In any event he pleaded guilty to the robbery charge and was sentenced to five years imprisonment by Spain J. in the Dublin Circuit Criminal Court. That sentence was imposed in May, 1995 and was reviewed by the trial Judge in May, 1996. On that occasion the balance of four years imprisonment was suspended on condition that the Applicant keep the peace and be of good behaviour for five years.

8. The Applicant appears not to have honoured those conditions because he has admitted in evidence that he has now been returned for trial on a charge of conspiracy to rob a Post Office in County Kerry on the 26th June, 1996 and that he intends pleading guilty to that offence. His trial has been fixed for the 11th November, 1997.

9. So much for the history of the Applicant since his arrival in Ireland following his escape from custody in England.

10. Following his absconding from the United Kingdom I am satisfied that the authorities in that jurisdiction followed the normal procedures which would apply when an escape from lawful custody occurs. The Applicant was listed as a wanted person on the police national computer and information concerning him was circulated amongst the United Kingdom police forces.

11. In May, 1993 Humberside police were co-ordinating an investigation into offences and in the course of that discovered that the Applicant was living at 515 Collins Avenue, Dublin. In July or early August, 1993 the Devon and Cornwall police submitted a report to the Crown Prosecution Service in Exeter. Further information and advices were sought in England including Counsel’s advice which was given on the 16th December, 1993. On the 4th January, 1994 a draft set of extradition documents was received by the Garda authorities for checking so as to ensure that they complied with the legal requirements of this State.

12. By February, 1994 the Gardai had received a warrant from the United Kingdom. It was approved for endorsement by the Attorney General on the 7th February, 1994 and by the Minister for Justice on the 17th February, 1994. On the 15th April, 1994 it was endorsed for execution by the Defendant.

13. At that time the Applicant was on bail in this jurisdiction in respect of the Collins Avenue burglary. He dishonoured his bail in July, 1994 and remained unlawfully at large until his arrest in either October or November, 1994. At that stage he was remanded in custody until dealt with by Spain J. in May, 1995. He was released by order of that Judge in May, 1996 and was then arrested on foot of the warrant in suit. An order for his delivery on foot of the United Kingdom request was made by the Dublin Metropolitan District Court on the 16th October, 1996.

14. The Applicant now seeks his release pursuant to the provisions of Section 50(2)(bbb) of the 1965 Act as amended. The claim for release pursuant to Section 50(2)(c) has not been pursued.

15. Section 50(2)(bbb) reads as follows:-

“A direction (to release) may be given by the High Court when the Court is of opinion that by reason of the lapse of time since the commission of the offence specified in the warrant or the conviction of the person named or described therein of that offence and other exceptional circumstances, it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under Section 47.”

16. This contemplates two circumstances where extradition may be sought. The first is extradition whilst the extraditee is awaiting trial in the requesting jurisdiction and the second is subsequent to the extraditee’s conviction there. It is the latter circumstance which is relevant for my consideration here.

17. In order to secure the Applicant’s release under the relevant subsection he would have to show that

1. by reason of the lapse of time since the conviction, and
2. other exceptional circumstances it would, having regard to all the circumstances be unjust, oppressive or invidious to deliver up the Applicant to the requesting jurisdiction.

LAPSE OF TIME
18. The Applicant’s conviction was in October of 1990. He was in lawful custody until his escape at the end of September, 1991. The English police did not become aware of his residence in Ireland until May, 1993. By February of the following year the warrant had been received by the Gardai. At that time and indeed since the previous October the Applicant was awaiting trial here. He then absconded and was not re-arrested until either October or November, 1994. Once arrested at that time he was remanded in custody. Within a period of not more than six weeks following his release by Spain J. he was arrested on foot of the warrant in suit.

19. Whilst seven years have elapsed since his conviction and six years since his escape I am satisfied that the bulk of that delay is attributable to the Applicant’s own conduct. His original escape, his subsequent dishonouring of bail in this country and his imprisonment here were all brought about by himself. Whilst the subsection speaks of the “lapse of time” without qualification, it would, in my view be extraordinary if an Applicant could rely on his own criminal wrong-doing so as to avail himself of this provision. I am satisfied on the evidence that the authorities in both jurisdictions acted with reasonable expedition in the way in which they dealt with this matter. Moreover, I am also satisfied that the authorities were quite entitled not to seek the Applicant’s extradition pending the determination of the criminal proceedings here. I do not accept the claim that the Applicant’s whereabouts here were known to the Gardai at all times.

20. Reliance has been placed on the decision of Geoghegan J. in the case of Fusco -v- O’Dea in support of this contention concerning lapse of time and also for the second leg of the case which I will consider in a moment. In my view this case on its facts is far removed from Fusco’s, not least by reason that here there is no suggestion that any delay was caused by a decision of the United Kingdom authorities not to seek extradition. I am satisfied that the Applicant’s case on lapse of time here is not made out.

OTHER GROUNDS
21. I turn now to consider the second part of the claim. It is said that there are present other exceptional circumstances which would, having regard to all the circumstances make it unjust, oppressive or invidious to order delivery up. Three matters are relied on to support this case.

22. First, it is said that the extradition of the Plaintiff to the United Kingdom to complete his sentence would lead to a severance by him of his links with his family. That is of course so with any person who is imprisoned and there is nothing exceptional about that. But here the Applicant says that his family could not afford to visit him whilst in jail in the United Kingdom. In considering this submission I must not lose sight of the ease of mobility that the Applicant’s family has enjoyed in the past. His family lived in England for two years, then moved to Ireland on the day following his escape from custody there and furthermore have made a number of moves in Ireland. I don’t consider this case to be exceptional nor do I discern anything unjust, oppressive or invidious arising under this head of claim.

23. The second claim under this heading arises from the Applicant’s medical condition. He has diabetes. The report from Dr Richard Firth shows that he has been both un-cooperative with his medical advisors and indifferent to put it at its lowest concerning his medical condition. Reliance is placed on the fact that ultimate renal failure awaits him but he is no different in that regard to any other diabetic. No suggestion is made that he would not obtain appropriate treatment for his condition whilst in prison. Again I find nothing exceptional which would render his delivery up unjust, oppressive or invidious.

24. The last ground relied upon is an assertion that the Applicant will be subject to assaults and ill-treatment whilst in prison. He says that such assaults have been perpetrated on him in the past and that on one occasion he required hospitalisation. This averment is made in an Affidavit. No dates, circumstances or indeed any detail at all has been given on this topic. Furthermore, the Affidavit says that medical reports supporting this contention would be produced. None were. I cannot accept that the Applicant has made out a case under this heading either.

25. Reliance was placed on the decision of Smyth J. in Wan -v- Conroy (unreported 17th December, 1996). This case comes nowhere near the facts of that case and is clearly distinguishable. Geoghegan J. in Fusco’s case referred to the over-lapping between the statutory expression of “unjust” “oppressive” and “invidious”. Smyth J. in Wan’s case drew attention to the Court being required to consider all the circumstances when dealing with an application under this subsection. Looking at the facts in this broad way, which is the most advantageous from the Applicant’s point of view, I cannot conclude that it would be either unjust or oppressive or invidious or that there are any exceptional circumstances present which would warrant a finding in his favour.

Burke v. Conroy

, High Court, March 5, 1999, McCracken J.
JUDGMENT of Mr Justice McCracken delivered the 5th day of March 1999.
1. This is an application pursuant to Section 50 of the Extradition Act, 1965 as amended for an order directing the release of the Plaintiff. The factual background to the case and the relevant dates may shortly be stated as follows:-

1. On 9th November, 1992 the Plaintiff appeared before the Crown Court in Manchester in England charged with indecently assaulting a female person contrary to Section 14(1) of the Sexual Offences Act, 1956. On that occasion the Plaintiff pleaded guilty to the offence charged and was remanded on bail until 7th December, 1992 for sentence, the Court having ordered probation reports to be prepared.
2. On 7th December, 1992 the Plaintiff failed to appear at the Crown Court at Manchester and in fact had previously returned to Ireland. He claims that he was not guilty of the offence and only pleaded guilty on the advice of his lawyers. I do not consider that it is any function of mine to determine his guilt or innocence.
3. In August, 1995 the Plaintiff was detained by the Gardai under Section 4 of the Criminal Justice Act, 1994 in relation to allegations of another offence, these allegations having been communicated to the Gardai by the police in the Greater Manchester Area. During the period prior to this he had resided with his parents until September 1993 and subsequently in a flat of his own in Kilmainham, and was in receipt of a disability pension through the Kilmainham Post Office.
4. On 4th December, 1995 a warrant for the Plaintiff’s arrest issued out from the Crown Court at Manchester.
5. On 8th January, 1996 the Plaintiff was arrested by the Gardai and brought to the Bridewell Garda Station and an application was made to the District Court pursuant to Section 47 of the Extradition Act, 1965.
6. On 18th April, 1996, after several adjournments which were largely due to the ill health of the Plaintiff, the application under the Extradition Act was heard in the District Court and an order was made for delivery of the Plaintiff into the custody of a member of the Greater Manchester Police.
7. On 19th April, 1996 these proceedings were issued.

2. The first point taken on behalf of the Plaintiff is that the offence with which the Plaintiff was charged in Manchester is not an offence known to Irish law. It is accepted that indecent assault contrary to Section 14(1) of the Sexual Offences Act, 1956 is basically the same offence as sexual assault contrary to Section 2 of the Criminal Law Rape Amendment Act, 1990, but the argument is made that the charge before the Court in Manchester did not specify where it was alleged the assault took place, and therefore did not show that it took place within the jurisdiction of the English Courts, while a charge incorporating the equivalent offence in Ireland would have to state where the offence was alleged to have occurred. I do not accept that this constitutes a lack of reciprocity in the charge, as in my view the primary purpose of stating the place of the alleged offence is to give jurisdiction to the Court, and is not part of the definition of the offence itself. I would therefore reject the Plaintiff’s submissions on this ground.

3. Section 50 of the Extradition Act, 1965 (as amended) provides that a person arrested under the Act shall be released if the High Court administers or directs such release in accordance with the Section, and the relevant portion of the Section as far as this case is concerned is:-

“(ii) A direction under this section may be given by the High Court when the Court is of opinion that
….
(bbb) by reason of the lapse of time since the commission of the offence specified in the warrant or the conviction of the person named and described therein of that offence and other exceptional circumstances it would, having regard to all the circumstances, be unjust oppressive or invidious to deliver him up under Section 47”.

4. Thus it is quite clear that there are three distinctive elements which must be considered by the Court, firstly the lapse of time, secondly other exceptional circumstances and thirdly all the circumstances of the case. No one of these items can be taken in isolation and I think it is implicit that the Plaintiff’s release cannot be ordered solely on the grounds of one of these items.

5. With regard to the question of delay, it has been decided by the Supreme Court in a somewhat similar case of Wan -v- Conroy (unreported 31st March, 1998), where the Plaintiff had also absconded from England, that the relevant period of delay to be considered was the period between the failure to appear in the Court in England and the date of the hearing of the Section 50 application in the High Court in Ireland. It is interesting to note that Section 50 simply refers to delay as a matter to be taken into consideration. This Section does not qualify the word “delay” as, for example, by calling it an “inordinate delay” or “unjustifiable delay” or anything of that nature. In the present case there has been a delay between December, 1992 and February, 1999, and I am quite satisfied that this is a delay of the type which may be taken into consideration under Section 50. Of course, the duration of the delay is a matter to be considered, but once there has been delay, the duration is not something to be taken in isolation, but is to be considered in conjunction with the other factors under the section.

6. There are two basic matters to be considered as exceptional circumstances in the present case. The first is that the Plaintiff has been living openly in Dublin since he absconded, and indeed initially resided with his parents. He was in the Social Welfare system from an early stage, as he was drawing a disability benefit. The victim of the alleged assault was the daughter of his estranged wife, and the evidence is that she would certainly have known his parents address and would have made it available to the Greater Manchester Police.

7. The second matter claimed as an exceptional circumstance is the deterioration in the health of the Plaintiff. The Plaintiff has suffered from an exceptionally severe type of asthma since childhood, and certainly suffered from it at the time of his Court appearances in Manchester. This was a rare form of asthma and was treated with steroids. Unfortunately this treatment has had serious side effects, and in particular the Plaintiff now suffers from serious osteoporosis. I am satisfied from the evidence of Dr Clancy, who was in fact cross-examined on his affidavit, that the severity of the osteoporosis is such that a severe fit of coughing can induce fractures of the ribs. I am also satisfied that this condition did not exist in 1992, but only developed some time about 1995. Furthermore, the Plaintiff has also developed insulin dependant diabetes mellitus since his return to Ireland. Dr Clancy’s evidence is that a prison sentence would have grave implications for his health and might pose a serious threat to his life, and that because of the different complaints, managing and co-ordinating his problems would be difficult in prison.

8. On behalf of the Defendant, Miss Moorehead argued, firstly that there is a heavy onus on a Plaintiff in these cases. I accept that that is so, particularly in a case such as this where the Plaintiff pleaded guilty and then absconded while awaiting sentence. The question of his getting a fair trial does not arise.

9. She also argues that some at least of the delay is due to adjournments of this case because of the Plaintiff’s illness, and that the time between the absconding of the Plaintiff in December, 1992 and his arrest in January, 1996 was not unreasonable. As I have already stated, there is a clear decision of the Supreme Court that the relevant time is not the date of the Plaintiff’s arrest, but the date of the hearing before the High Court, and in that regard there has been a delay of over six years. While certainly that delay would not in itself be considered inordinate, nevertheless it is a considerable delay, and is one which I am satisfied I am entitled to take account of and consider in conjunction with the other circumstances of a case.

10. I think the serious issue in this case is whether there are exceptional circumstances within the meaning of the section. Again, I would accept that, taken on its own, the fact that the Plaintiff has lived openly in Ireland since he returned to this country would probably not be an exceptional circumstance, although it certainly is another circumstance to be taken into account under the third part of the section. However, the health of the Plaintiff is a very serious matter. Apart from the evidence of his illnesses, there is also evidence that, by reason of these illnesses, he has had a number of very acute episodes which have required immediate and emergency hospitalisation. Miss Moorehead has urged that these are not matters for me, but are matters which may be taken into account by the judge in the Manchester Crown Court when sentencing the Plaintiff, and she has produced evidence of English law to this effect. It is of course correct that the health of a convicted person may be very relevant to the sentence, but in this case the Plaintiff’s health now is very different from his health at the time of his conviction. His present circumstances with regard to his health can certainly be called exceptional in that he suffers from two very severe condition which did not exist at the time of his conviction, namely the osteoporosis and the diabetes. I have no doubt that this is an exceptional circumstance within the meaning of Section 50.

11. As I have said, I would consider that the fact that he has lived openly in Ireland and was in the Social Welfare system is another circumstance which I may take into account. There is also the fact that he is clearly now unable to work, and is in effect a permanent invalid.

12. A number of authorities have been opened to me, which, while instructive, do all depend upon their own facts. This is of necessity so, as what is being considered are exceptional circumstances. I am satisfied that, taking this case on it own facts, there has been a delay within the meaning of Section 50, there certainly are exceptional circumstances arising out of the illness of the Plaintiff, and there are other circumstances such as the fact that he has been living openly in this country since 1992. In view of the fact that he pleaded guilty, and, notwithstanding his protestations now, I must assume he was guilty, I do not think it would be unjust to deliver him up under Section 47. However, because of the special circumstances, I do think it would be oppressive and invidious to do so. I would emphasise that the legislature thought fit to base considerations under this section, not only on the basis of the justice of the extradition, but also on the basis of whether it would be oppressive or invidious, which must be very subjective tests. Under the circumstances, I have no hesitation in making a direction under Section 50 that the Plaintiff should be released.

Armstrong v Smithwick

, unreported, High Court, January 18, 2002, Ó Caoimh J
THE JUDICIAL REVIEW PROCEEDINGS

By Order of the 22nd March, 1999 the applicant Matthew Armstrong was given leave by this Court (Mr. Justice O’Higgins) to apply by way of an application for Judicial Review for the relief of certiorari quashing an order of the first named respondent made on the 24th September, 1998 that the applicant be delivered into the custody of the Metropolitan Police pursuant to a warrant purporting to have issued on the 19th January, 1995 by a Magistrate sitting at Highbury Corner Magistrates’ Court in the Inner London area. The grounds upon which leave was granted are as follows:-

1. The first named respondent erred in law in proceeding with the hearing of the extradition proceedings against the applicant in circumstances where the second named respondent indicated in writing to the applicant that the second named respondent was no longer relying upon the affidavit of Detective Constable Edwards which exhibited the warrant upon which the proceedings were based. In the circumstances there were no proceedings before the Court.
2. The first named respondent acted contrary to natural and constitutional justice in that he failed to grant to the applicant the opportunity to cross-examine Detective Constable Paul Edwards when the second named respondent indicated that he was relying upon the warrants as exhibited in the affidavit of Detective Edwards.
3. The first named respondent acted contrary to natural and constitutional justice in that he failed to grant to the applicant an adjournment for the purpose of obtaining a transcript of the trial of one Joseph Sherry who had been acquitted of the offence for which the applicant’s extradition was being sought.
4 .That the reason given by the first named respondent for failing to grant the adjournment i.e. that the Metropolitan Police were not required to prove their case in the District Court amounted to a failure by the first named respondent to ensure due regard for the applicant’s right to due process and to fairness of procedures. Furthermore, in refusing the adjournment for the said reason the first named respondent failed to have due regard to his constitutional obligation to ensure that the applicant’s constitutional rights were vindicated.
5. In the circumstances the refusal of the opportunity to cross-examine Detective Edwards and the effective denial of the right to cross-examine Sergeant Johnson by virtue of the refusal to adjourn the said proceedings amounted to a denial of the applicant’s right to audi alterantpartem.
The applicant has sworn an affidavit in the Judicial Review proceedings. On the 12th May, 1995 he was arrested at Bray, County Wicklow by Sergeant Kieran Kelly of the Crime and Security Branch, Garda Headquarters, Phoenix Park under a warrant which purported to have been issued by a Magistrate and Justice for the Inner London area at Highbury Corner Magistrates’ Court on the 19th January, 1995. This warrant was backed by Assistant Commissioner Conroy with his apparent authorisation for the execution of the warrant by any member of the Garda Siochana on the 6th March, 1995. On the warrant it is alleged that on the 29th June, 1992 within the jurisdiction of the Central Criminal Court for England and Wales the applicant had in his possession a controlled drug of class A, namely 15.10 kilograms of brown powder containing diamorphine (heroin), with intent to supply it to another in contravention of Section 4(1) of the Misuse of Drugs Act, 1971 contrary to Section 5 (3) of the Misuse of Drugs Act, 1971. ‘

The applicant denies the offence alleged and when arrested he responded to the reading of the warrant by saying “completely untrue”. He says that he was shocked to find that it is the intention of the Metropolitan Police in England and Wales to charge him with this offence. He says that subsequent to his arrest in May of 1995 he was granted bail by the High Court on the 31st May, 1995. In the course of the bail hearing Detective Constable Edwards gave evidence. It is stated that part of his evidence was that a warrant for the applicant had been issued in England in October of 1992 and that dealings between the officers of the two Attorneys General had caused delay. The applicant says that Detective Constable Edwards gave evidence that the warrant was subsequently withdrawn and the warrant of the 19th January, 1995 was subsequently issued. He says that the application for the hearing of the application for extradition was delayed because proceedings pending in the State against him were being processed and these were ultimately ended by entry of a nolle prosequi on the 15th July, 1997 by the Director of Public Prosecutions. The case against the applicant came on for hearing before the President of the District Court on the 12th February, 1998. Shortly before the hearing the applicant was served with an affidavit sworn by Detective Sergeant Simon Johnson of the Metropolitan Police on the 10th February, 1998. The applicant says that his counsel objected to the commencement of the hearing of the case on the basis that time was needed for the consideration of matters arising from the affidavit. It is pointed out that counsel for the Attorney General objected to the adjournment. In the circumstances the President of the District Court commenced hearing the extradition proceedings with the proviso that if it became necessary to grant a further adjournment on the hearing that same would be granted.

On the 12th February, 1998 Sergeant Kelly gave evidence similar to that which he had given on the 12th May, 1995. The applicant says that this witness was cross-examined by counsel on his behalf. Sergeant Kelly said that he was not aware when Assistant Commissioner Conroy had received the warrant. He said that he was only aware of the date that he had signed it, that is, the 6th March, 1995. Sergeant Kelly said that he himself only received the warrant on the 1 lth May, 1995 but he said that from the 6th March, 1995 to the 11th May, 1995 the warrant was in Garda Headquarters in that it would have been received by the Extradition Section. Sergeant Kelly said that he was aware that the applicant would be in Bray that day and he had seen him for about ten minutes before he arrested him. The applicant said that upon being asked by counsel to explain the delay in serving the warrant Sergeant Kelly said that he had no explanation. Sergeant Kelly said that he was not aware what steps were taken before the 11th and 12th May, 1995 to execute the warrant. He said that his function on that day in Bray was to execute the warrant.

Detective Sergeant Johnson gave evidence that he was involved with the South East Regional Crime Squad in Operation “Zulu Cricket”. He gave evidence of having occasion to see the applicant on the 9th June, 1992 at the Churchill Hotel in Putnam Square. He saw the applicant with others in the street at Old Brompton Road that day. He identified the applicant as the person named in the warrant. It is alleged that he said that on a later date he went to County Fermanagh to liaise with the RUC about the applicant. (It was agreed in the hearing before me that the reference to the 9th June, 1992 in the applicant’s affidavit should read the 29th June, 1992.)

Sergeant Johnson was cross-examined by counsel and said that he never spoke to the applicant and that his knowledge about him came from what he was told by others and from documents he had seen. He indicated that the only person arrested on the day of the alleged offence was an Alan Johnson. Sergeant Johnson said that he had travelled to France to interview one Joseph Sherry. Joseph Sherry had been acquitted of the offence alleged against the applicant. Sergeant Johnson indicated that he gone to Northern Ireland on the day after the arrest of Alan Johnson to deal with evidence in the case and not in fact to seek the applicant. He could not say exactly when they first began to seek the applicant but said that it was within six months of the 29th June, 1992. It was indicated that the police were certainly seeking the applicant by January of 1993 and possibly before that time. Sergeant Johnson said that he was not aware of the exact enquiries that had been made as to the location of the applicant. He furthermore was not aware of an earlier warrant which had issued for his arrest. He had no information on the enquiries or details on the issuing of the warrant in this case. The proceedings in the District Court were adjourned on the application of counsel for the applicant for further consideration of the matters arising out of the affidavit which had been served on the applicant on that same day and the matter was adjourned to the 28th May, 1998 for continued hearing.

A week after this hearing, on the 19th February, 1998 the applicant’s solicitor wrote to the Chief State Solicitor enclosing a notice to cross-examine Sergeant Johnson and Detective Constable Edwards. The letter contained a request to be furnished with the documents referred to in paragraph 3 of Sergeant Johnson’s affidavit and a request for information on how to obtain a copy of the transcript of the trial of Joseph Sherry. The Chief State Solicitor replied to this letter stating that the Attorney General would not furnish the statement and exhibits as requested. The letter also stated that as the application was no longer based upon the affidavit of Detective Constable Edwards he would not be made available at the continued hearing. On the 17th April, 1998 the Chief State Solicitor wrote to the applicant’s solicitor with details concerning the transcript of the trial of Joseph Sherry. The letter indicated where the applicant could obtain a copy of the transcript in London. In the earlier letter from the Chief State Solicitor it was indicated that Sergeant Johnson would be available for cross-examination on the adjourned date.

The applicant says that his solicitors were unsuccessful in obtaining a copy of the transcript of Joseph Sherry prior to the adjourned date for the District Court hearing. No detail is given in this regard. He says that on the 28th May, 1998 counsel on his behalf applied for an adjournment on the basis that in the absence of the transcript it would not be possible to conduct a meaningful cross-examination of Sergeant Johnson. He contends that this information was highly relevant in light of the nature of the allegation that was being made against him, that is that he was the person who had negotiated the terms of the transaction and he was to receive the purchase money. The applicant points out that the President of the District Court refused the application on the ground that the police (and the Attorney General on their behalf) were not required to prove their case in the District Court.

The applicant further says that an application was made by counsel, firstly in relation to the fact that the Attorney General was not seeking to rely upon the affidavit of Constable Edwards and therefore that there were no proceedings before the Court as the warrant formed an exhibit to his affidavit and, secondly, that if they were relying on the warrant then Constable Edwards should be available for cross-examination. He says that counsel for the Attorney General informed the Court that they were relying upon the warrant but that in light of Sergeant Johnson’s affidavit nothing further was to be gained from Constable Edwards. He says that despite objection by counsel on his behalf, the President of the District Court refused to allow a cross-examination of Constable Edwards.

The applicant points out that on the 31st May, 1995 during a bail hearing in the High Court Constable Edwards gave evidence to the Court to support an objection to the granting of bail. He says that there was no reason advanced by or on behalf of the Attorney General as to why Constable Edwards was unavailable for cross-examination in the District Court except for the proposition that they no longer were relying on his affidavit. He says that at that time Constable Edwards gave evidence that an earlier warrant had in fact issued for his arrest.

The applicant says that as no transcript was available his counsel was unable to proceed with a cross-examination of Sergeant Johnson. In this regard he contends that he was denied an opportunity to have his case placed before the District Court by virtue of the failure to adjourn the matter. The applicant further complains that as a result of the ruling by the first respondent

a) cross-examination of Constable Edwards was not permitted,

b) the Attorney General had earlier indicated that he was no longer relying on the affidavit of Constable Edwards,

c) that this position was reversed when Constable Edwards was not produced, and

d) as a result of the failure to make the relevant documents available his counsel was unable to effectively cross-examine Sergeant Johnson at all.

The applicant says that as a result of the rulings and the procedures adopted the only argument that counsel could make against his extradition at this point in time concerned a lack of correspondence between the offences alleged and the offences of possession with intent to supply a controlled drug in this jurisdiction. He says that the respondent judge ruled that there was correspondence and that he was making an order for extradition. The respondent judge indicated that he intended to remand the applicant in custody but his counsel referred him to the terms of the bail granted by the High Court on the 31st May, 1995. He indicates that at a later date the question of bail was clarified in the High Court where it was indicated that bail should continue pending the determination of these proceedings. He says that he returned to the District Court for the purpose of the making of the final Order by the President of the District Court. On several occasions the President was not sitting in the particular court or on the date. However, on the 24th September, 1998 an order for his extradition was made. Thereafter proceedings were commenced by the applicant under Section 50 of the Extradition Act. The applicant says that he is advised that he is not entitled to raise any question of fair procedures within the context of the Section 50 proceedings.

The only affidavit sworn by Detective Constable Paul Edwards relied upon by the applicants in the application for extradition is one sworn on the 19th January, 1995 in which he deposes as follows:-

1. “I was present and witnessed the signing by Anthony Evans Metropolitan Stipendiary Magistrate and Justice for the Inner London area, of the warrant which was issued at Highbury Corner Magistrates’ Court, 51 Holloway Road, London N78JA, England on the 19th January, 1995 for the arrest of Matthew Henry Armstrong also known as Matthew Armstrong also known as Matt Armstrong now produced and shown to me and marked with the word and letter’ warrant A’ for which for the purpose of identification I have signed my name before making this affidavit.

2. The Metropolitan Police is the force for the place in which the said warrant was issued.

3. I make this affidavit from facts within my own knowledge.”

Sergeant Kieran Kelly, a member of the Garda Siochana has sworn affidavit filed the 1st June 1999. In his affidavit he states that on the 10th May, 1995 Detective Inspector Kenneth Lambe of Bray Garda Station arrested the applicant on foot of a warrant issued by Judge Ballagh at Bray District Court on the 9th May, 1995. Detective Inspector Lambe then brought the applicant to Naas District Court where he charged him with the offences set out in Greystones Sheet 23/95 and the applicant was then remanded in custody to appear at Bray District Court on the 12th May, 1995. He says that he was informed by Detective Inspector Lambe that the applicant was appearing at Bray District Court on the 12th May and that there was a possibility that he might be granted bail. Consequently he went to Bray on that day for the purpose of executing the United Kingdom warrant referred to in these proceedings. He confirmed that Mr. Armstrong, the applicant herein, was then granted bail and was arrested by him on foot of the warrant. On the 18th July, 1997 a nolle prosequi was entered in respect of the charge the subject matter of Greystones charge sheet 23 of 1995. In the mean time on the 15th June, 1995 the rendition request by the United Kingdom in respect of the applicant was set down for hearing on the 30th November, 1995.

On the 30th November, 1995 counsel for the applicant applied for an adjournment on the ground that there were ongoing criminal proceedings in this jurisdiction and that it would be futile for the Court to embark upon a hearing when rendition could not in fact take place until those proceedings were determined. The solicitor appearing on behalf of the Attorney General objected to the adjournment, pointing out that the case had been set down for hearing five and a half months previously and that in the meantime the State had received no notification of an application for an adjournment and consequently had brought a witness from the United Kingdom. The solicitor for the State conceded that the State’s position would not necessarily be prejudiced if an adjournment was granted. In these circumstances the presiding judge granted the adjournment sought and the rendition proceedings were then adjourned to the 25th January, 1996 for mention only. On the 25th January, 1996 the matter was again adjourned to the 22nd February, 1996 for mention only and on that date the matter was further adjourned to the 25th July, 1996 again for mention only. On the 25th July the case was yet again adjourned to the 6th November, 1996 for mention only and upon that date it was further adjourned by consent to the 18th February, 1997 upon which date it was yet again adjourned by consent for mention to the 3rd May, 1997. On the later date a bench warrant was issued for the applicant but was cancelled later in the day by the District Judge when the applicant turned up at about 3.50pm and the matter was adjourned for mention only to the 18th November, 1997 upon which date it was adjourned to the 25th November, 1997 to fix a date for hearing. On the 25th November, 1997 the rendition proceedings were finally fixed for hearing on the 12th February, 1998.

It is stated that all the adjournments were on the applicant’s application save those expressed to be by consent.

The matter was substantially heard by the President of the District Court on the 12th February, 1998 and the matter was again adjourned upon the application of counsel for the applicant. At a resumed hearing on the 28th May, 1998 counsel for the applicant again made an application for a further adjournment on the ground that they were seeking a transcript of an associated trial and on the ground that they wished to cross-examine the maker of the affidavit verifying the signature of the magistrate who issued the warrant seeking the applicant’s rendition which is part of Exhibit A in the affidavit of the applicant. It is stated that the President of the District Court refused this application for an adjournment and in doing so he referred to the applicant’s counsel seeking a transcript of another trial and observed that it is not a requirement that the United Kingdom have to prove their case in the District Court. As regards the application to cross-examine the maker of the verifying affidavit he ruled that the applicant was not entitled to have oral evidence from the maker of the said affidavit. Counsel for the Attorney General then read the affidavit of Detective Sergeant Johnson, exhibit B in the applicant’s affidavit, to the Court and in compliance with the applicant’s notice to cross-examine the deponent, Detective Sergeant Johnson was tendered for cross-examination but was not cross-examined by counsel for the applicant.

The learned President of the District Court then ruled that there was a clear correspondence between offence in the warrant and Section 15 of the Misuse of Drugs Act, 1997 as amended. In his ruling the President also referred to paragraph 4 of the affidavit of Detective Sergeant Johnson. He then made an order for the applicant’s rendition and directed that the fugitive be handed over to an officer of the Metropolitan Police after the expiry of fifteen days. The applicant was then informed of his right to appeal under the Extradition Act or to bring habeas corpus proceedings and he was also informed of his right to consent to his rendition. As there was an apparent ambiguity in the bail order of the High Court the learned President, at the request of the applicant’s counsel refrained from making an order there and then and adjourned the matter to the 18th June, 1998.

Sergeant Kelly says, in case that there is any ambiguity about the matter, that at the hearing on the 12th February, 1998 the court was informed that an affidavit as to facts made by Detective Constable Edwards, in identical terms to the affidavit of Simon Johnson and exhibited in the applicant’s affidavit was being withdrawn and the affidavit of Detective Sergeant Simon Johnson substituted therefore. Sergeant Kelly points out that the application for judicial review was delayed until two days before the expiry of the six months time limit for applying for an order of Certiorari. He says that in the premises that the averment in the applicant’s affidavit in these proceedings for the hearing the application for extradition was delayed because proceedings pending in the State against him were being processed is grossly misleading. He says that the dilatoriness with which the rendition proceedings were processed were solely and exclusively a function of the applicant’s procedural manoeuvering to stave off an order for his delivery to the United Kingdom. Sergeant Kelly says that the District Court was never told by anyone appearing on behalf of the Attorney General that the State was not relying upon the affidavit of Constable Edwards verifying the magistrate’s signature on the warrant and if the applicant’s affidavit is meant to convey otherwise, it is grossly misleading. He says that he cannot recall any such application being made by counsel for the applicant as that referred to in Section 14 of the applicant’s affidavit. This relates to an alleged application to the affect that there were no proceedings before the court as the Attorney General was not seeking to rely upon the affidavit of Constable Edwards. He says that the State was at all material times relying upon both the affidavit of Constable Edwards, sworn on the 19th of January, 1995 witnessing and verifying the signature on the warrant and the affidavit as the facts sworn by Detective Sergeant Simon Johnson and dated the 1 Oth of February, 1998. He says that counsel for the applicant merely wanted to cross-examine Constable Edwards in relation to verification of the magistrate’s signature and which was a further procedural manoeuvre to delay the proceedings. He says that the learned President of the District Court ruled as a matter of law that the applicant’s counsel could not cross-examine Detective Constable Edwards in relation to his affidavit verifying the signature of the magistrate on the warrant for the applicant’s arrest.

It appears that in the course of the proceedings in the District Court, a belief existed that a second affidavit, namely one with the facts sworn by Detective Constable Edwards and dated the 17th May, 1995 had been served upon the applicant’s solicitors. It appears, however, that this belief was in error and in fact the affidavit had never been served and insofar as a letter had been sent to the applicant’s solicitors it relied upon this mistaken belief in circumstances where it was proposed to rely upon an affidavit of Sergeant Johnson as to facts rather than the affidavit prepared by Detective Constable Edwards which was never served upon the applicant’s solicitors. This position is verified by an affidavit sworn by Mr. Robert Eager, Solicitor, and an affidavit of the applicant sworn on the 23rd of July, 1999.

A replying affidavit of Michael Heffernan, Sergeant of the Garda Siochana, attached to the Extradition Section based at Garda Headquarters, Phoenix Park, Dublin 8 has been sworn on behalf of the respondents. In his affidavits he indicates that the affidavit sworn by Detective Garda Simon Johnson is identical in terms to the affidavit previously

sworn by Detective Constable Edwards. The affidavit of Detective Constable Edwards was sworn on the 17th of May, 1995 and has been referred to as ‘the second affidavit’. He says that on the 12th of February, 1998 before the commencement of the rendition proceedings Sergeant Kelly personally served the affidavit of Detective Sergeant Simon Johnson on the applicant. He indicates in effect that the second affidavit of Detective Constable Sergeant Paul Edwards was not in fact served on the applicant.

It is clear that the District Court was informed that the State was relying on the affidavit of facts sworn by Detective Sergeant Simon Johnson. He expresses his belief that before the hearing of the case it was patently clear to everybody that the verifying affidavit of Detective Constable Paul Edwards and the affidavit as to facts tendered by Detective Sergeant Simon Johnson were the documents upon which the State was relying. He points out that Sergeant Kelly had tendered to the District Court the affidavit of Detective Constable Paul Edwards verifying the magistrate’s signature together with the warrant and certificate of the magistrate’s clerk. He says that on the 12th of February, 1998 Sergeant Kelly again gave evidence of having handed the applicant at the time of his arrest, copies of the warrant, the certificate and the verifying affidavit of Detective Constable Paul Edwards. He points out that Sergeant Kelly was not cross-examined on this aspect nor did he at any stage state or infer that the affidavit of Paul Edwards, verifying the magistrate’s signature, had been withdrawn or replaced.

In the statement of grounds of opposition, filed on behalf of the Attorney General, it is submitted that the applicant’s counsel was not entitled to have oral evidence in relation to the affidavit verifying the magistrate’s signature and that the decision of the respondent judge was correct in law by virtue of provisions of Section 54 and 55 of the Extradition Act, 1965 as amended. It is clear that Sergeant Johnson was made available for cross-examination but not withstanding this fact the applicant declined through his legal representatives to cross-examine the said Sergeant Johnson.

Section 55 of the Extradition Act 1965 provides inter alia as follows;

55.- (1) In any proceedings, unless the court sees good reason to the contrary:
(a) A document appearing to be a warrant issued by judicial authority in a place in relation to which it is Part applies for the arrest of a person for an offence may, if the signature on the warrant is verified as indicated in subsection (1) of section 54, be admitted in evidence as such warrant and as having been duly signed and issued by a judicial authority in accordance with the law of that place;
(b) …
(c) A certificate appearing to be given in accordance with subsection (2) of section 54 may be admitted as evidence of the matters certified therein,
without further evidence.
Section 54 (1) and (2) read as follows:

54. – (1) Where the Commissioner receives a document appearing to be a warrant issued by judicial authority in a place in relation to this Part applies, together with an affidavit verifying the signature on the warrant and appearing to be sworn before a person duly authorised to take affidavits by the law of that place, the Commissioner may, without further evidence, accept the document as being such warrant and as having been duly signed and issued by judicial authority in accordance with the law of that place and as evidence that the offence for which the warrant was issued is an offence under the law of that place and that the affidavit has been duly sworn before a person so authorised as aforesaid.
(2)A certificate appearing to be given by the authority or the clerk or other officer of the authority by which a warrant was issued, that the offence to which it relates is, by the law of the place concerned an indictable offence and not also a summary offence, or that it is a summary offence punishable by a specified maximum period of imprisonment may, without further evidence, be accepted by the Commissioner as evidence of the matters so certified.
A central issue in these proceedings is whether, having regard to the provisions of section 54 and section 55, the District Court was entitled to rely upon the warrant exhibited in the proceedings or whether it was incumbent upon the District Court to permit the applicant through his legal representatives to cross-examine the relevant officer who swore the affidavit verifying the signature on the warrant, namely, Detective Constable Edwards.

On behalf of the applicant it is submitted that the provisions of section 54 and section 55 as amended are not provisions on which the respondent can rely on for the failure to allow the cross-examination of Detective Constable Edwards. It is submitted that section 54 simply refers to documentation that the Garda Commissioner may accept without need for further proof, while section 55 allows the court to accept certain documents without further proof unless the court sees good reason to the contrary. It is submitted that the documents referred to in the sections do not include the affidavit verifying the signature. In support of his submissions counsel for the applicant refers this court to the provisions of Order 29 Rule 11 of the District Court Rules which provides as follows;

“In any proceedings brought before the court under the Extradition Acts, 1965 -1994 (other than an application for the issue of a warrant of arrest) the court may at any time, for such reasons as it thinks fit and on such conditions it thinks reasonable, permit the evidence of any witness to be given by affidavit and permit the affidavits of such witness to be read at the hearing. The court shall not, however, grant such permission when it appears that any party to the proceedings bona fide requires the production of the witness for cross-examination and that such witness can be produced.”
It is submitted that Order 29 Rule 11 shifts the onus onto the person who is attempting to give evidence by way of affidavit to persuade the court that “for such reasons as it thinks fit” that the procedures should be adopted. In the circumstances of the instant case it is submitted that the second named respondent made no such application but incorrectly assumed an entitlement to give evidence on affidavit. Order 29 Rule 11 goes on to say that such permission shall not be granted where the person is bonafide required and that such witness can be produced. It is submitted that in the instant case the Detective Sergeant was bonafide required for cross-examination and no apparent reason was given why he could not give evidence at the particular time. It is further submitted by counsel that no inquiry was made as to whether the officer concerned could be available for cross-examination.

At the outset counsel for the applicant submitted that there was a failure to abide by the requirement that the procedures in the extradition proceedings be fair and in this regard reliance is placed upon the fact that the State did not furnish to the applicant the documentation referred to at paragraph 3 in the affidavit of Detective Sergeant Simon Johnson where in paragraph 3 he states that as a result of inquiries he and his colleagues obtained statements and exhibits from which he deposed to the matter set out at paragraph 4. At paragraph 4 it is stated “In association with others Armstrong was in possession of a quantity of heroin (diamorphine) which he had arranged to sell to another person for £650,000. Armstrong’s role in the commission of the offence was to meet the buyer and to negotiate the terms of the transaction, and afterwards to receive the purchase money”.

In support of the contention that fair procedures must prevail counsel has referred this court to the decision of the High Court in the case of The State (Gary McFadden) -v- The Governor of Mountiov Prison No. 11 [1981] ILRM 113. It is clear that the documentation referred to at paragraph 3 in the affidavit of Simon Johnson was not provided to the applicant at any stage. In particular counsel refers this court to the portion of the judgment of Barrington J. at p. 116 of the report where he states as follows:-

“The first thing a lawyer retained to represent a client in extradition proceedings will want to see would be the documents on foot of which the extradition proceedings were instituted, and he would want to have copies of these documents for study.”
Further on the same page Barrington J. stated as follows:-

“The matters on which a District Justice must satisfy himself when exercising his jurisdiction under the Extradition Act were discussed in The State (Holmes) -v- Furlons /1967] IR 210. See in particular, the judgment of Walsh J., at p.223. The point on which he must satisfy himself would appear to include the following: (1) the validity of the warrant and associated documentation. (2) that the person who has been arrested is in fact the person named or described in the warrant, (3) that the offence described in the warrant corresponds with any offence under the law of the State which is an indictable offence or if punishable, on summary conviction, by imprisonment for a maximum period of at least six months. (4) If he is satisfied on the above points, he should then consider the question of the point of departure from the State.”
It is submitted in the instant case that the refusal of the Attorney General to allow the documents or exhibits or even to ask the English authorities to consider supplying them means that the applicant in the instant case was never properly informed of the nature and the substance of the accusation and was rendered impotent in examining the issue of correspondence in the District Court by way of submission or by way of cross-examination. Further in his judgment Barrington J. referred to the decision of the then President of the High Court Finlay P. in the case of The State (Lane) -v~ Delap and to a report made by the President to the Supreme Court in that case dated the 25th July, 1979. At p.l11 of the report of this case a portion of the report of the President is quoted as follows:-

“On the face of the order for delivery dated 16th May, 1979, it appeared that the offence with which the prosecutor was charged corresponded with the offence of receiving, contrary to s.33 of the Larceny Act, 1916. Any decision to the contrary made by the learned District Justice would have been incorrect in law. In my view, therefore, even if it were established that the prosecutor had been deprived of an opportunity to make a legal submission to the contrary, this would not, in my view, constitute a want of natural justice. In reaching this conclusion I distinguish between the necessity to afford an opportunity to take evidence, cross-examine witnesses or make submissions of fact, and the necessity to afford an opportunity to make a legal submission on a point of law which only admitted of one conclusion.”
In referring to the conclusion of Barrington J. in that case that the procedure followed fell short of constitutionally acceptable standards of fairness, with the result that the order made by the District Justice on foot of those procedures is invalid, counsel submits that in the instant case a similar conclusion should be reached that there was a procedure followed which fell short of constitutionally acceptable standards of fairness with the result that the order made by the President of the District Court should be quashed.

Counsel further referred this court to a portion of the judgment of Walsh J. in the case of Ellis -v- O’Dea [1989] I.R. 530 where at p.537 of the report he indicated that what was invoked in that case was the undoubted residual jurisdiction of the District Court to protect the constitutional rights of any person appearing before it. In that case Walsh J. stated at the end of p.537 that there must not only be a correspondence of offences but also a correspondence of fair procedures. He stated that no procedure to which the extradited person could be exposed may be one which if followed in this State, would be condemned as being unconstitutional. It is to be noted that in the case of Ellis and O ‘Pea (supra) the Supreme Court rejected the submission that the applicant should have been furnished with the swom information on which the warrant for his extradition was grounded. It is to be noted also that in that case the Supreme Court held that the State authorities were not obliged to furnish the applicant’s legal advisers with a sworn information so as to assist them in testing the validity of warrants which were presumed by statute to have been duly issued.

Dealing with the factual matters of the case the first issue raised is the failure on the part of the District Court to adjourn the hearing before it to allow the transcript of the trial of Joseph Sherry to be obtained. It is submitted in this regard that the applicant was entitled to seek to explore what facts were alleged against the applicant and in particular with a view to having a fair opportunity to prepare his defence and to consider the extent to which it would be possible to argue the issue of correspondence. It is submitted that the learned President of the District Court failed to respect the applicant’s right to fair procedures and in refusing an adjournment did so on a wrong basis, namely, on one relating to submissions that had never been made. In this regard it is submitted that the President declined an adjournment on the basis that it was not necessary for the United Kingdom authorities to prove their case in the District Court.

It is submitted that in the instant case the warrant did not set forth sufficient facts to deal with the issue of correspondence and this necessitated the further affidavit of Simon Johnson. The next issue addressed by counsel for the applicant related to the withdrawal of the affidavit of Detective Constable Edwards. It is clear in the instant case that as a matter of fact the second affidavit of Constable Edwards was not served on the applicant or his legal representatives. The applicant’s solicitor by letter of the 19th February, 1998 sought the cross-examination of Constable Edwards on his affidavit of the 19th January, 1995.

It is further submitted that the second named respondent has raised the issue that no submission was made to the first named respondent that the second named respondent was no longer relying on the affidavit exhibiting the warrant. It is submitted that this is a contested matter of fact for this court to decide. It is submitted that on the facts of the instant case it may be that the parties were at cross-purposes as to what was being relied upon and that where the learned President of the District Court could not have been aware of the true position of each of the parties that there had been a breach of the right to fair procedures. It is submitted that the letter received by the applicant’s solicitor induced him to believe that the Attorney General was not relying on the verifying affidavit of the 19th January, 1995 sworn by Detective Edwards. It is stated that the matter became more confusing later on when it was indicated that the Attorney General was indeed relying on the affidavit of the 19th January, 1995 verifying the warrant and exhibiting same. It appears that the second affidavit of Detective Edwards which was not served is one that corresponds with the affidavit sworn by Simon Johnson and dated 12th February, 1998.

With regard to the letter suggesting the withdrawal of an affidavit of Detective Edwards it is submitted that the request to cross-examine him on his affidavit conveyed in the letter of the 19th February was a bona fide request. It is submitted, insofar as the learned President of the District Court made an order, the effect of which was to permit the admission of the affidavit but to preclude cross-examination of the deponent, that it did not address the requirements of the rules of the District Court and it is submitted that the order made was bad. It is submitted that the confusion in the case was compounded by the State’s actions and that this court could not reasonably conclude that it did not have an effect on the making of the order by the learned President of the District Court refusing to allow counsel to cross-examine Detective Edwards.

Particular reliance was placed by counsel on the fact that Detective Edwards was described as the case officer. He was intimately involved with the entire proceedings and it was he who had apparently sought earlier warrants. He had attended the bail hearing in the High Court and gave evidence before that court in relation to the earlier matters. It is submitted that this court cannot conclude that the President impliedly found that the request to cross-examine was not a bona fide request.

In reply to the submissions made by counsel for the applicant Mr Patrick McCarthy, S.C. for the Attorney General has submitted that in the first instance there was no want of fair procedures in the proceedings in the District Court against the applicant. He points to the fact that the applicant while served with the affidavit of Simon Johnson on the 12th February, 1998 did not seek to cross-examine that deponent at a later stage when he was available for cross-examination on his affidavit. It is submitted that as a matter of fact the affidavit verifying the warrant and the warrant itself were in court at the time. The warrant was duly endorsed and all the appropriate statutory requirements that applied to it were carried out. It is submitted that there was no issue as to jurisdiction, there was no issue as to identification and that Sergeant Johnson was tendered and gave evidence in court and was available for cross-examination.

Counsel submitted that insofar as it was indicated to the District Court that the second respondent in these proceedings, i.e. the Attorney General relied on the affidavit of Constable Edwards, verifying the warrant, that this is an affidavit which carries the statutory presumptions. It is submitted, on the facts of the case that the first ground upon which the applicant moves, namely, that there were no proceedings before the District Court is inappropriately based. With regard to the alleged failure to allow the cross-examination of Detective Constable Paul Edwards on his affidavit it is submitted that insofar as this affidavit was only dealing with the verification of the signature, cross-examination was clearly not appropriate as it carried the statutory presumption and that there was no bonafide reason such as one going to jurisdiction that required cross-examination. Counsel for the Attorney General relies four square on the provisions of sections 54 and 55 of the Extradition Act.

With regard to the third complaint that the proceedings were not adjourned to permit the applicant to obtain a transcript of the trial of Mr Sherry, it is submitted that it is not the function of the District Court to examine the transcript in question or to obtain the transcript. In this regard it is submitted that there is no requirement that the requesting State has to prove its case in the District Court. Accordingly, it is submitted that there has been no failure on the part of the first respondent and that he did not act contrary to natural and constitutional justice in refusing to grant to the applicant an adjournment for the purposes of obtaining a transcript of the trial of one Joseph Sherry.

With regard to the fourth ground advanced that the reason given by the first named respondent for failing to grant the adjournment is that the Metropolitan Police were not required to prove their case in the District Court and that this amounted to a failure by the first respondent to ensure due regard to the applicant’s right to due process and to fairness of procedures and further that in refusing the adjournment for the said reason the first respondent failed to have due regard to his constitutional obligation to ensure that the applicant’s constitutional rights were vindicated, it is submitted that what was the true position is that the applicant was properly before the court, the warrant for his extradition continued to be relied upon and had been duly endorsed and that fair procedures in the circumstances were adhered to and that Sergeant Johnson was available for cross-examination.

It is submitted by counsel that the learned President of the District Court was correct in law, having regard to the provisions of s.47 of the Extradition Act, 1965 as amended, which provides that the District Court is only concerned with the offences specified in the warrant, and dealing with the procedure he has to be concerned with the matters referred to in the judgment in the case of Ellis-v-O’Pea (supra) and in the case of The State (McFadden) -v- The Governor of Mountjoy Prison (supra). Counsel submits that the matters to be addressed are (1) the validity of the warrant and associated documentation, (2) that the person who has been arrested is in fact the person named or described in the warrant, (3) that the offence described in the warrant corresponds with any offence under the law of the State which is an indictable offence or is punishable on summary conviction by imprisonment for a maximum period of at least six months and (4) If the court is so satisfied on the above points that the court should then consider the question of the point of departure from the State. On this basis it is submitted that the learned President of the District Court was correct in law in refusing the adjournment sought and that the request for the obtaining of the transcript was to address matters other than that to be addressed by the District Court.

With regard to he fifth ground relied upon by the applicant, namely, .hat the refusal of the opportunity to cross-examine Detective Constable Edwards and the effective denial of the right to cross-examine Sergeant Johnson by virtue of the refusal to adjourn the proceedings amounted to a denial of the applicant’s right to audi alterampartem, counsel, having already addressed the issue of the cross-examination of Detective Edwards, submits that with regard to the cross-examination of Detective Sergeant Johnson that as a matter of fact he attended the District Court on the 28th May, 1998 in light of the notice to cross-examine him and was tendered for cross-examination. The applicant’s counsel had no questions to ask of the witness on this occasion. It is submitted that it is inconsistent with such an approach for the applicant now to complain about failure to enable the cross-examination of Detective Sergeant Johnson to take place.

Conclusions in relation to the Judicial Review

In the first place dealing with the aspect as to whether the State was relying upon the initial affidavit of Detective Constable Edwards it is dear ma, while the letter from the Chief State Solicitor’s Office may have given the impression that it was not intended to rely upon this affidavit it, must have been abundantly clear when the matter came before the District Court that the letter was in error insofar as it may have suggested otherwise. I am accordingly satisfied that there were in fact proceedings before the court upon which the grounding affidavit of verification of Detective Constable Edwards was in evidence in support of the application for extradition of the applicant. I am satisfied that if there was any misapprehension in relation to this matter that it did thereafter become abundantly clear that the State sought, to rely upon this affidavit. If it was understood that the only verifying affidavit of the signature of the magistrate was not being relied upon this would be tantamount to the State indicating that it was not proceeding with the application for the extradition of the applicant. This clearly was not the tenor of the letter from the Chief State Solicitor and accordingly it must have been abundantly clear that there was an apparent error in the letter from the Chief State Solicitor’s Office. The affidavit of Detective Constable Edwards verifying the signature of the magistrate was an essential proof that had already been proved before the District Court in the extradition application prior to the letter in question from the Chief State Solicitor’s office. Accordingly, I believe that this ground must fail.

With regard to the second ground namely that the respondent, the President of the District Court, acted contrary to natural and constitutional justice in failing to grant the applicant the opportunity to cross-examine Detective Constable Edwards I am satisfied in the first instance, that insofar as his affidavit was concerned, it was essentially in support of the warrant and it was an affidavit coming within the terms of s.55(l)(a) of the Extradition Act, 1965 and it was one upon which the District Court was entitled to rely unless it was to see good reason to the contrary. The affidavit effectively verified the signature of the magistrate issuing the warrant. I am satisfied in the circumstances that these sections apply to same. The District Court Judge was entitled to rely upon the affidavit and there was no necessity to permit the deponent to be cross-examined in relation to same and in fact, no matter has been put before this court calling into question the essential matter deposed to, namely, the verification of the signing by Anthony Evans, Metropolitan Stipendiary Magistrate and Justice for the Inner London Area of the warrant issued at Highbury Corner Magistrates’ Court on the 19th January, 1995 for the arrest of the applicant. It is clear from the evidence that at no time was any case made that the matters deposed to by Constable Edwards were in issue in the proceedings in the District Court and, furthermore, in the proceedings before this court no case has been made that these averments are incorrect.

With regard to the third point relied upon namely the submission that the respondent Judge of the District Court acted contrary to natural and constitutional justice when he failed to grant to the applicant an adjournment for the purpose of obtaining a transcript of the trial of one Joseph Sherry, who had been acquitted of the offence for which the applicant’s extradition had been sought, I am satisfied that the applicant had sufficient time if he wished himself to pursue a course of obtaining this transcript. I am furthermore satisfied that there was no obligation on the part of the State to obtain the transcript or furnish it to the applicant or his legal representatives. I believe that the matter is similar to that pertaining in the case at Ellis vO’Dea (supra) where it was asserted that the applicant in that case was entitled to a sworn information. In that particular case the Supreme Court rejected the particular submission. I am furthermore satisfied that there is no substance to the case that this transcript was necessary for the court and the defendant in the proceedings before the District Court to address the issue of correspondence of offences. In light of this fact I believe that the learned President of the District Court was correct in refusing to adjourn the case for the purposes of obtaining this transcript as this transcript would at best serve the purpose of indicating the evidence that might available to the prosecution in the prosecution proposed against the applicant.

This leads to the fourth ground, namely, the assertion that the reason given by the first named respondent for failing to grant the adjournment, that is, that the Metropolitan Police were not required to prove their case in the District Court amounted to a failure by the first named respondent to show due regard for the applicant’s right to due process and fair procedures and furthermore, in refusing the adjournment, the first named respondent failed to have due regard to the constitutional obligation to ensure the applicant’s constitutional rights were vindicated. I am satisfied that the only purpose for which the transcript could have been used by the applicant in the District Court would be to address the evidential basis of the charges against him and in no way has it been shown to me that this was necessary to deal with the issue of the correspondence of offences. I am, therefore, satisfied that the applicant was accorded due process and fair procedures in the District Court and that his constitutional rights were vindicated by the respondent judge.

The final ground relied upon is that the refusal of the opportunity to cross-examine Detective Constable Edwards and the effective denial of the right to cross-examine Sergeant Johnson by virtue of the refusal to adjourn the proceedings, amounted to a denial of the applicant’s right to audi alterantpartem. I am satisfied that the refusal of the opportunity to cross-examine Detective Constable Edwards did not give rise to any violation of the applicant’s right to a fair hearing in the District Court. I am furthermore satisfied that the applicant was given a full right to cross-examine Sergeant Johnson on his affidavit. I am satisfied that this right was not availed of in the circumstances where he was tendered for cross-examination. I am satisfied that there was no obligation to adjourn the hearing further to enable the applicant to get a copy of the transcript of the proceedings of the trial of Mr Sherry.

In conclusion I am satisfied that in all the circumstances this application by way of Judicial Review must fail and that notwithstanding the clear error in the letter from the Chief State Solicitor’s Office relating to the affidavit of Constable Edwards that the applicant cannot succeed in this application and I refuse same.

THE SECTION 50 PROCEEDINGS

With regard to the s.50 proceedings the plaintiff advances two grounds of application to this court by reference to s.50(2)(bbb) and subsection (2)(c). The first of these relates to an alleged lapse of time since the commission of the offence specified in the warrant and other exceptional circumstances. It is submitted that it would, having regard to all the circumstances, be unjust oppressive or invidious to deliver up the plaintiff under s.47 of the Act and by reference to subsection (2)(c) it is pleaded that the offence specified on the warrant does not correspond with any offence under the law of the State which is an indictable offence or is punishable on summary conviction by imprisonment for a maximum period of at least six months.

The essential facts in this case are as follows:

On the 12th day of May, 1995 the plaintiff was arrested at Bray, County Wicklow by Sergeant Kieran Kelly under a warrant which purported to have been issued by a London Magistrate on the 19th January, 1995. This warrant alleges that on the 29th June, 1992 within the jurisdiction of the Central Criminal Court for England and Wales the plaintiff had in his possession a controlled drug of class A, namely 15.10 kilograms of brown powder containing diamorphine (heroin) with intent to supply it to another in contravention of s.4(l) of the Misuse of Drugs Act, 1971.

The plaintiff is a native of Northern Ireland and was in fact a member of the Royal Ulster Constabulary. He asserts that he is not guilty of the offence alleged against him or any other offence relating to the possession or supply of drugs. He says that he was shocked to find that it is the intention of the Metropolitan Police in England and Wales to charge him with this offence. The plaintiff details the fact that he joined the RUC but left the RUC in about 1967 or 1968. He says that he became a motor dealer in Belfast and stayed in this trade for a number of years having left the RUC. He became involved in running a number of public houses in Portadown and in Tempiepatrick in County Antrim. In 1978 he sold the pubs and moved to Dublin. He has an Irish passport and has had one for the last twenty years. It appears that the plaintiff lived in Spain for about eleven years, after which he moved back to Ireland. He was involved in a business in Enniskillen which apparently failed. He believed that he had been defrauded by others and that in due course he would receive substantial compensation. He took High Court proceedings which came on for trial in 1994 and ran for a period of three weeks at the end of which he was unsuccessful. He says that during and after the trial there was much publicity and his name and address was referred to in the national newspapers and magazines.

In his affidavit the plaintiff gives his own version of events in relation to dealing with other individuals, Alan Johnson and Joseph Sherry. He states that he kept Superintendent Conroy of the RUC in Belfast informed of his involvement with Johnson and Sherry. He says that on the 29th June, 1992 Johnson had agreed to meet with an individual called Miguel and states that he was supposed to collect £650,000 from an individual called Carlos. He says that on that occasion he got a lift in a lorry to Ireland. He believed that the individual Carlos was working with one of the authorities. He says that he did not believe that he was a criminal and that he had no real spending money. He believed that the individual Miguel had been involved in ‘a sting’ and he had introduced Johnson to Miguel.

Mr Johnson was apparently arrested on the 29th June, 1992 and the plaintiff states that he believes that on that date the Metropolitan Police came to Enniskillen where they searched his home and his business premises. He says that at no time did the police go near his home or his business. He says and believes that many people connected with Johnson were questioned except his family. He was aware that Johnson was arrested. He was living in Dublin and Sherry came to see him and he was panicking. He maintained contact with Sherry and also with Superintendent Conroy. His business was gone and his marriage was in difficulty. He says he visited Enniskillen on a number of occasions but was never arrested or spoken to by the local police. Johnson pleaded to an offence of possession of heroin with intent to supply during the course of his trial. Joseph Sherry was acquitted of the offence of possession with intent to supply. The plaintiff says that he remained in Dublin from 1992 onwards and began to settle here with another business selling cars. He says that during this time he was not in any way hiding but in fact maintained a quite public face through the court case as mentioned. He says that his photograph appeared in local newspapers as well as the Farmers Journal.

The plaintiff says that his case for extradition came on for hearing before the President of the District on the 12th February, 1998. He says that shortly before the hearing he was served with an affidavit sworn by Detective Sergeant Simon Johnson of the Metropolitan Police on the 10th February, 1998. He states that in the course of the District Court proceedings Sergeant Kelly gave evidence but indicated that he was not aware when Assistant Commissioner Conroy, the defendant herein, received the warrant in question. He said that he was only aware of the date that he had signed it, namely, the 6th March, 1995. He points out that Sergeant Kelly said that he himself only received the warrant on the 11th May, 1995 and indicated that from the 6th March, 1995 to the 11th May, 1995 the warrant was in Garda Headquarters in that it would have been received by the Extradition Section. Sergeant Kelly was aware that the plaintiff would be in Bray on the date that he was arrested and had seen him for about ten minutes before he arrested him. He states that Sergeant Kelly offered no explanation for the delay in serving the warrant. Furthermore, he was not aware if the plaintiff had been in this jurisdiction for some time and what steps if any had been taken before the 11th and 12th May, 1995 to execute the warrants.

The plaintiff points out that Detective Sergeant Johnson gave evidence in the District Court that he was involved with the South East Regional Crime Squad in an operation entitled Zulu Cricket. He gave evidence of having occasion to see the plaintiff on the 29th June, 1992 at the Churchill Hotel in Putnam Square. He also gave evidence that he saw the plaintiff with others in the street at Old Brompton Road later that day. He identified the plaintiff as the person named in the warrant. He states that on a later date he went to County Fermanagh to liaise with the RUC about the person named in the warrant. Sergeant Johnson indicated to the court that the only person arrested on the day of the alleged offence was Alan Johnson. Sergeant Johnson thereafter travelled to France to interview Joseph Sherry. It appears that Sergeant Johnson indicated to the District Court that he had gone to Northern Ireland on the day after the arrest of Alan Johnson to deal with evidence in the case and not in fact to seek the plaintiff in these proceedings. He could not say when the English police first began to seek the plaintiff but it was within six months of the 29th June, 1992. At the time he said he was not aware if an earlier warrant had issued for the plaintiff’s arrest. He had no information on the enquiries or details on the issuing of the warrant in this case.

The plaintiff points out that the proceedings in the District Court were adjourned to the 28th May, 1998 for continued hearing.

The plaintiff gives details of the proceedings in the District Court and indicates that counsel on his behalf argued that from the allegations as made to the court by Sergeant Johnson it was submitted that no correspondence was shown between the offences alleged and the offence of Possession with Intent to Supply a Controlled Drug in this jurisdiction. He points out that the President of the District Court ruled that there was correspondence and that he was making the order for the extradition of the plaintiff. An issue arose as to whether the plaintiff was entitled at this point to continue to be at liberty on bail. It was then agreed that the matter should be returned to the High Court for further clarification of a bail order that had previously been made. It appears that the matter was mentioned before the High Court and it was ordered that the bail should continue pending the determination of these proceedings.

The matter was then returned to the District Court for the purpose of making a final order by the learned President of the District Court. The plaintiff states that on several occasions the President was not sitting in the particular court or on the particular date. He states that on the 24th September, 1998 the order for his extradition was made. The plaintiff states that since 1992 his wife and he have separated and they are now divorced. He says that he has been living in this jurisdiction quite openly. He says that for the last two and a half years he has become involved in another relationship and that he planned to get married in March of 1999. It now appears that the plaintiff has again remarried. The plaintiff contends by reason of the foregoing, including the lapse of time since the commission of the offence specified in the warrant, the issue of the earlier warrant in October of 1992 and the failure to proceed thereon, the delay in the processing of it, the fact that he believed that he was assisting the police in a sting, by reason of ongoing contact with the police in the matter, by reason of the fact that he was not arrested or contacted by the police in the aftermath of the alleged offence and the fact that he was living openly in this jurisdiction, that it would be unjust, oppressive or invidious to deliver him up under the provisions of s.47 of the Extradition Act, 1965 as amended.

The plaintiff further says that he is advised and believes on the basis of the facts as alleged by Sergeant Johnson that there is no correspondence with the offence as set out in the warrant herein and any offence within this jurisdiction.

A replying affidavit has been sworn by Kieran Kelly, a sergeant of An Garda Siochana. He states that at all material times he was attached to the Extradition Section based at Garda Headquarters, Phoenix Park, Dublin 8. He complains that the plaintiffs affidavit is disingenuous and evasive as regards the issue of delay. He says that on the 10th May, 1995 Detective Inspector Kenneth Lambe of Bray Garda District arrested the plaintiff on foot of a warrant issued by Judge Ballagh at Bray District Court on the 9th May, 1995. He brought the plaintiff to Naas District Court where he charged him with certain offences set out in Greystones sheet 23/95. The plaintiff was then remanded in custody to appear at Bray District Court on the 12th May, 1995. He says that he was informed that the plaintiff was appearing at Bray District Court on the 12th May and that there was a possibility that he might be granted bail. Consequently he went to Bray on that date for the purpose of executing the United Kingdom warrant referred to in these proceedings. He points out that the plaintiff was in fact granted bail and was arrested by him on foot of the warrant. He says that ultimately on the 18th July, 1997 a nolle prosequi was entered in respect of the charge the subject matter of Greystones charge sheet 23/95.

On the 15th June, 1995 the rendition request by the United Kingdom in respect of the plaintiff was set down for hearing on the 30th November, 1995. He points out that on this date counsel for the plaintiff applied for an adjournment on the grounds that there were ongoing criminal proceedings in this jurisdiction and that it would be futile for the court to embark upon a hearing when rendition could not in fact take place until those proceedings were determined. He points out that the solicitor appearing on behalf of the Attorney General objected to the adjournment pointing out that the case had been set down for hearing five and a half months previously and that in the meantime the State had received no notification of an application for an adjournment and consequently had brought a witness from the United Kingdom to Dublin. The solicitor for the State conceded that the State’s position would not necessarily be prejudiced if an adjournment was granted. In the circumstances he points out that the presiding judge of the District Court granted the adjournment sought and that the rendition proceedings were then adjourned to the 25th June, 1996 for mention only.

It appears that the matter was thereafter adjourned from time to time for mention only in the District Court and ultimately was adjourned on consent to the 12th May, 1997. On this occasion it was adjourned again for mention to the 18th November, 1997 and on this later date the matter was adjourned to the 25th November, 1997 to fix a date for hearing in the circumstances where the other charge pending against the plaintiff had at this stage been the subject matter of a nolle prosequi. On the 25th November, 1997 the rendition proceedings were finally fixed for hearing on the 12th February, 1998.

He points out that the various adjournments were on the plaintiffs application or consent. It was pointed out by the witness that the matter was substantially heard by the President of the District Court on the 12th February, 1998 when the matter was again adjourned upon the application of counsel for the plaintiff. He points out that on the 28th May, 1998 counsel on the plaintiffs behalf made an application for a further adjournment on the ground that the plaintiff was seeking the transcript of an associated trial and on the ground that he wished to cross-examine the maker of the affidavit verifying the signature of the magistrate who issued the warrant seeking the plaintiffs rendition. He points out that this application was refused and pointed out that the President of the District Court in refusing the application and noting the fact that the plaintiff was seeking the transcript of another trial observed that it was not a requirement that the United Kingdom have to prove their case in the District Court. It appears that the presiding judge also indicated that the plaintiff was not entitled to have oral evidence from the maker of the affidavit.

He points out that Sergeant Johnson was tendered for cross-examination but was not cross-examined by counsel for the plaintiff. It was pointed out that the learned President of the District Court then ruled that there was a clear correspondence between the offence in the warrant and s.15 of the Misuse of Drugs Act, 1977 as amended. It appears that in his ruling the President also referred to paragraph 4 of the affidavit of Detective Sergeant Johnson.

An affidavit has been sworn by Simon Johnson a detective sergeant in the Metropolitan Police of Organised Crime Group, New Scotland Yard, London in which he says that he is a detective sergeant stationed in New Scotland Yard at the Organised Crime Group. He states that he was previously posted to no. 9 Regional Crime Squad (Drugs Wing) which became the Regional Crime Squad now known as the National Crime Squad. He says that all relevant times to these proceedings he was stationed at New Southgate Branch Office. He was one of the police officers involved in the investigation of the matter for which the plaintiffs extradition is sought on foot of the warrant issued on the 19th January, 1995. He says that a warrant was first issued for the plaintiffs arrest in this matter by Highbury Corner Magistrates Court in London on the 21st October, 1992. This warrant was for conspiracy to supply heroin. On the same day at the same court a warrant was also issued for the arrest of Joseph James Sherry in connection with the same offence. He points out that from the date of the issue of the first warrant and onwards the plaintiff has been continuously sought for the aforesaid offence. He says that on that date the fact that he was wanted on warrant was circulated within the United Kingdom on the police national computer in accordance with normal practice.

He says that continual efforts were made to locate the plaintiff with the intention of arresting him. He says that liaison was maintained with the informant ‘Miguel’ and various agencies both within and outside the United Kingdom. These agencies included the Garda Siochana, the Drug Enforcement Agency, French Gendarmes, Police de I’Air et des Frontieres (PAF) and the Jamaican Police. Sergeant Johnson points out that the decision to arrest the plaintiff was made following advice from the Crown Prosecution Service in October, 1992. By April, 1993 police investigating the matter became aware that the plaintiff was located in this State. He points out that on or about the 17th April, 1993 papers were submitted to the Special Case Work Division of the Crown Prosecution Service in London which deals with the preparation of papers for the return to the United Kingdom of accused persons. He points out that the preparation of papers for the extradition proceedings commenced for both the plaintiff and Joseph Sherry. On the 4th August, 1993 Mr Sherry was arrested in France by the PAF. The preparation of case papers for this State ceased in respect of Sherry only and extradition proceedings commenced with the authorities in France. He points out that French legislation does not have a compatible offence of conspiracy. To facilitate the French extradition on the 5th August, 1993 at Highbury Corner Magistrates Court the warrant for Sherry was withdrawn and immediately replaced with a warrant for the offences of possession with intent to supply the drug and being concerned in the supply of the drug. For the sake of maintaining the status quo in respect of the charges against both men the same procedure was undertaken in respect of the warrant for the plaintiff which had issued on the 21st October, 1992.

The witness further states that the preparation of the extradition papers in respect of the plaintiff continued and on the advice of the Crown Prosecution Service on the 19th January, 1995 the warrant of the 5th August, 1993 was withdrawn and immediately replaced with a warrant for the single offence of possession of the drug with intent to supply. He points out that this warrant was hand delivered to the Gaida Siochana on the 26th January, 1995. He points out that the offences for which the plaintiff has been sought are all arrestable offences and as such it is not necessary for a warrant to be in existence in order to arrest the plaintiff within the United Kingdom jurisdiction. He says that the length of time from the date of locating the plaintiff in Ireland and the delivery of the warrant to the Garda Siochdna is about one year and nine months. He says that he understands that part of this time was taken up by the Crown Prosecution Service in resolving queries about the matter.

A further affidavit has been sworn by the plaintiff in these proceedings which is essentially argumentative and takes issue with a number of the averments in the affidavit of Kieran Kelly. He points out however, that he remarried on the 12th March, 1999.

An affidavit has been sworn by Sergeant Michael Heffernan who is attached to the Extradition Section of An Garda Siochana based in Garda Headquarters, Phoenix Park, Dublin 8. He points out that before the hearing on the 12th February, 1998 that it was patently clear that the verifying affidavit of Detective Constable Paul Edwards and the affidavit as to facts tendered by Detective Sergeant Simon Johnson were the documents upon which the State was relying.

He points out that after the arrest of the plaintiff on the 12th May, 1995 Sergeant Kelly had tendered to the District Court the affidavit of Detective Constable Paul Edwards verifying the magistrate’s signature together with the warrant and the certificate of the magistrate’s clerk. It was pointed out that at the hearing before the learned President of the District Court on the 12th February, 1998 Sergeant Kelly again gave evidence of having handed Matthew Armstrong at the time of his arrest copies of the warrant, the certificate and the verifying affidavit of Detective Constable Paul Edwards. He points out that Sergeant Kelly was not cross-examined on this aspect nor did he at any stage state or infer that the affidavit of Paul Edwards verifying the magistrate’s signature had been withdrawn or replaced. It is pointed that the notice to cross-examine the deponents in the instant case before the District Court was dated the 19th February, 1998 when the case was still pending in the District Court and after the affidavit of Detective Sergeant Simon Johnson was served. He submits that this serves to confirm that the plaintiff and his solicitor were at all times aware that the relevant affidavits were the verifying affidavits of Detective Constable Paul Edwards and the affidavit as to facts of Detective Sergeant Simon Johnson.

In the proceedings before this court a number of the deponents have been cross-examined by counsel on behalf of the plaintiff. Detective Sergeant Simon Johnson has indicated that he was involved in the investigation of the crime alleged against the plaintiff. He was on a team of twelve officers working on this particular investigation and the early gathering of the evidence leading up to the arrest of Mr. Johnson and Mr. Sherry. He pointed out that Mr. Johnson was in possession of 15 kilos of heroin at Gatwick Airport. Mr. Johnson was arrested in an hotel at the airport in the company of an undercover police officer at the time. The witness conceded that the plaintiff was thirty miles away across London in the company of a customs undercover officer. While the police case is that the plaintiff was awaiting a collection of money from the sale of drugs he was not arrested at that time. This was for an operational reason made after consultation with the Crown Prosecution Service, in order to protect both sources of information and precise methodology and in order to enable this type of operation to go forward again without anyone being compromised. There was an opportunity to arrest Mr. Armstrong on this occasion. While Mr. Armstrong did not collect the money on this occasion he would not have been allowed to do so by the Authorities. The police believed that the applicant was there for the purpose of collecting the money after the drugs deal. A portion of the police evidence derives from tape recordings of conversations. In addition to this there are video recordings at a safety deposit centre. The witness identified as ‘Miguel’ was someone who was working on behalf of the Drugs Enforcement Agency. The witness first saw Mr. Armstrong on the 9th of June at the Churchill Hotel in Portland Square in London. The police became aware of the address of Mr. Armstrong in the Enniskillen area sometime after the arrest of Mr. Johnson. While the police officer in question went to Enniskillen the day after the arrest of Mr. Johnson, this was not for the purpose of looking for Mr. Armstrong because a decision had been made in consultation with the Crown Prosecuting Service and the controlling Senior officers of the operation that to preserve the integrity of the undercover operations, Mr. Armstrong and Mr. Sherry would not be arrested at that stage. While the applicant was not arrested at that time he could have been arrested but the decision had been consciously made not to do so for the reasons stated, namely to preserve methodology, sources of information and to protect those sources. The police evidence suggests that Mr. Armstrong, the plaintiff herein was in control of Mr. Johnson to some extent and that he was exerting a certain amount of control over the whole enterprise. The police evidence is that Mr. Armstrong is the man that brokered the deal and introduced the other participants. The witness indicated his belief that the authorities in this jurisdiction would not have been furnished with a sworn information or information in support of the warrant.

While the initial warrant sought related to an offence of conspiring to supply fifteen kilos of heroin the issue would be a decision that was taken by the senior investigating officer. The initial warrant was issued in October of 1992 and a subsequent warrant was issued in August of 1993 and this was believed to have been issued on the information of Detective Constable Edwards. Sergeant Johnson was nominated to take the place of Detective Constable Edwards in these proceedings in 1998 as it was considered that he was the most appropriate person to actually deal with the identification of the plaintiff Mr. Armstrong. No enquiries were made about the plaintiff with the R. U. C. on the occasion when the witness went to Enniskillen on the 30th of June 1992.

Operation ‘Zulu Cricket’ commenced on the 9th of June 1992 and the basis for the commencement of the operation was contact from the Drug Enforcement Administration with the information that Miguel had been approached by the plaintiff Mr. Armstrong in relation to the supply of heroin. While Mr. Armstrong in his affidavit suggested that it was Miguel who had approached him, the police information is that the approach had come from Mr. Armstrong to Miguel. It is the police belief that Mr. Armstrong introduced Johnson and Sherry to Miguel. With regard to the procedure adopted in the instance case not to arrest Mr. Armstrong at the first opportunity, the witness indicated that this was an accepted practice by the prosecuting authorities because of the need to protect sources of information and methods of dealing with operations.

When a decision was made in October 1992 to seek the arrest of the plaintiff the circumstances had changed and a decision had been made by the prosecuting authorities in conjunction with the police that he should be sought. The English police believed the Plaintiff to be in Ireland in October of 1992. Liaison took place between the Metropolitan Police, the Garda Siochana, the Royal Ulster Constabulary as well as the French border police and the drugs squad and the Jamaican police and Drug Enforcement Administration, in order to track the Plaintiff down. The police did not know exactly where he was. In June of 1993 at the time when Mr. Johnson pleaded guilty the English police did not know exactly where the applicant was but he was believed to be in Ireland. Enquiries with the Garda Siochana were made in an effort to locate the plaintiff and in September 1993 the English police were made aware that the Plaintiff was in fact at an address in Bray. The witness indicated that Mr. Armstrong was in error in his belief that the witness went to Co. Fermanagh to liaise with the R. U. C. about Mr. Armstrong, He states that he went to Enniskillen to deal with the search of Alan Johnson’s premises. The witness indicated that the first liaison with the Gardai was after the decision to arrest the plaintiff in October of 1992.

Mr Sherry was extradited back from France in December of 1994 and he underwent three trials and eventually was acquitted.

The first warrant for the applicant issued in 1992. It was changed in line with that for Mr. Sherry because there was no comparative matter in France to conspiracy. The subsequent warrant of 1993 was changed because, while the 1995 warrant related to the same offence, one does not have on the warrant an indication that the Stipendiary Magistrates is a judicial authority for the purposes of the Extradition Act which is a matter that was added at the bottom of the warrant. The reason for the change of the warrants pertaining to Mr. Armstrong related to the fact that it was intended that both Mr. Sherry and Mr. Armstrong would be facing similar charges.

Sergeant Michael Heffernan was cross examined on his affidavit. He indicated that it would be very common for a local warrant to be withdrawn and to be replaced with extradition documentation which was in a format which would satisfy the requirements of the Act. He stated that this would be normal procedure or certainly usual procedure in this jurisdiction and also in the United Kingdom. Sergeant Heffernan indicated the procedure in relation to extradition. It is the normal practice that the documentation is delivered by hand. He assumed that this was the same in the instant case. The documentation is copied to the Attorney General and to the Chief State Solicitor’s office. The Attorney General has the statutory role in inspecting and approving the warrants for endorsement. Where the Attorney General has approved the documentation his comments or his recommendation is conveyed to the Commissioner of the Garda Siochana, who in turn conveys it to the Minister for Justice. The Minister for Justice then has a statutory role whether he will allow the warrant to be endorsed. If the Minister for Justice allows the warrant to be endorsed this information is conveyed to the Commissioner. The warrant is then endorsed, provided that the rest of the statutory requirements apply and the warrant is then executed.

The file in the instant case shows that on the 26th January 1995 the extradition section of The Garda Siochana consulted the Attorney General as to whether the warrant should be endorsed for execution. On the 14th of February 1995 a letter was received from the Attorney General’s office indicating that the warrants could be endorsed. This was on a note from Mr. James Hamilton stating “the warrant is in order for endorsement, in accordance with the provisions of the Acts.” The witness has also indicated that, from his experience, it is the situation that warrants are delivered very quickly after they are issued in the courts in the United Kingdom. He indicated that there is never any appreciable delay whatsoever in his experience. From an inspection of the file it is suggested that no other documentation other than the warrant, the verifying affidavit and the certificates were received, when they were hand delivered by the United Kingdom authorities, and that these were transmitted to the Attorney General’s office, in copy form.

Ms. Ruth Fitzgerald an officer in the office of the Attorney General gave evidence that the extradition file was opened in the Attorney General’s office on the 13th of October 1994. Had there been any prior communication in writing or any telephone conversation of any substance prior to that date a file would have been opened. No such file exists. Copies of the extradition documentation including the warrant and the statement of facts, confirmatory note and verifying affidavit and statement of law would have been received from the Attorney General’s office in England. The Attorney General performed the functions under the Act in the instant case on the 14th of February 1995. The communication in October 1994 was request for the backing of the warrants from the United Kingdom authorities, that is from the Attorney General’s office in London. Submissions of Counsel for the plaintiff

In the first instance Mr. McGuinness addressed the issue of the lapse of time or other exceptional circumstances under which it is submitted that it would be unjust, oppressive or invidious to deliver the plaintiff up under Section 47 of the Extradition Act. It is submitted that the considerations of lapse of time and other exceptional circumstances should be read conjunctively. Based upon the authority of the Supreme Court in the case of B. v Conroy (unreported Supreme Court 1st March 2001) it is conceded that the plaintiff must establish that the exemption contended for applies on the balance of probabilities. Dealing with the lapse of time it is submitted on behalf of the plaintiff that Section 50 does not prescribe a minimum period which must be passed before the High Court, on the application, can consider it sufficient to trigger the operation of the section. There is some distinction made between the case law as to the period to be taken into consideration in calculating the lapse of time. Counsel has referred this Court the authority of Kakis v Republic of Cyprus [1978] 3 WLR 779. in which the House of Lords, under similar legislation, considered the period to be from the date of the offence (or convictions as the case may be) and the date of the hearing in the High Court. This period was confirmed by the Supreme Court in the case of Kwok Mine Wan v Conroy [1998] 3IR 527.

Counsel referred this Court to portion of the judgment of the Chief Justice in the case of B. v Conroy (unreported, Supreme Court, 1st March 2000) where he stated follows on page 10 of his judgment:

“I consider first the lapse of time which has occurred in this case. In Kwok Ming Wan v Conroy. Hamilton C. J. treated the relevant period as that between the date of the commission of the offence or the conviction, on the one hand, and the hearing in the High Court, on the other hand. That was also the view taken by Lord Diplock in Kakis v Republic of Cyprus in which he pointed out that the date of the hearing in the Division Court was the first occasion in which the particular ground for resisting extradition could be raised. That was also the case with our legislation. While it is true that Denham J. in her judgment in Fusco v O Pea referred to the period which had elapsed between the conviction and the commencement of the proceedings, it does not appear that any delay of significance occurred in that case between the issue of the proceedings and the hearing in the High Court and, accordingly, it was not necessary for Denhan J. to address the issue as to which was the appropriate date, since the lapse of time in that case would have been sufficient in any event to trigger the exempting provisions.
That is not the situation in this case where the interval between the institution of the proceedings and the hearing in the High Court was of the order of nearly three years. That is a relevant consideration since it is not in dispute that this was due to the illness of the plaintiff and other factors for which no responsibility attaches to the prosecuting authorities in either jurisdiction.

The relevant lapse of time in this case accordingly is from the 7th of December 1992 to the 19th of April 1996 when the Special Summons was issued.”

Counsel submits in the instant case that the relevant period to consider whether there has been a lapse of time is from the date of the alleged offence on the 29th of June 1992 to the 13th of December 2001 a period of nine and a half years. It is submitted that the grounds as to whether the loss of time and other exceptional circumstances will render it unjust, oppressive or invidious to deliver up the plaintiff can only be considered by this Court, and of course, on appeal the Supreme Court. It is submitted that a relevant consideration in this case is the contradictory evidence which has been given on different occasions and before different courts by or on behalf of the defendant with regard to the history of the warrants which were allegedly issued for the plaintiff in this case. It is submitted that Sergeant Johnson has sworn an affidavit before this Honourable Court containing information that he told the District Court that he did not have.

Counsel contends that there has been delay in the conduct of these proceedings by the defendant. It is submitted in this regard that there was a contested motion for discovery which took over six months to resolve at the end of which time the defendant agreed to make an order for discovery on consent. It is further stated that further and better discovery had to be sought and an order granted in that regard. It is further submitted that such a lapse of time is clearly sufficient to trigger a determination by the High Court as to whether there were “other exceptional circumstances.” It is submitted that if this Court is of the view that the relevant period is that between the date of the offence and the commencement to the proceedings, that is until the 29th of September 1998, that a period of six years and three months arises for consideration. It is submitted that this period is in any event more than sufficient to trigger the determination. It is pointed out that in the case of B. v Conroy (supra) the lapse of time was three years and four months while in Kakis v Republic of Cyprus the lapse of time was three years and five months up to the date of hearing.

It is further submitted by counsel on behalf of the plaintiff that section 50 expressly contemplates the granting of relief to those who have absconded from other jurisdictions, for example it provides for relief on grounds of delay even where there has been a conviction. In reference to the case of Wan v. Cortroy (supra) counsel points out that the Supreme Court granted relief to a person who had absconded following conviction. Section 50 relief must be available with even greater force to someone such as the plaintiff who came to this country at a time when there was no warrant out for his arrest. It is submitted that there is no blame attaching to the plaintiff whatsoever in respect of this matter. Counsel further refers to the uncontested evidence put forward by the plaintiff that he visited Enniskillen on a number of occasions after June of 1992.

As against this it is submitted that there is a final fault in the respect of the lapse of time on the prosecuting authorities in the United Kingdom and in this jurisdiction. There is no explanation as to how it took both police so long to locate the plaintiff. Furthermore, it is submitted that having located the plaintiff there is no or no adequate explanation as to the delay that is one year and nine months in seeking a warrant for his extradition. It is submitted that a simple one line reference to part of the time being taken up by the Crown Prosecution Service in resolving queries is insufficient in this context. It is further submitted that there is no explanation as regards the delay in executing the warrant. It is further submitted that there has been delay as regards the proceedings in this jurisdiction, much of which can be placed at the door of the prosecuting authorities.

Having set forth contentions relating to the delay aspect of this case, counsel submits that there are several circumstances which fall to be considered as ‘exceptional circumstances’ of the purposes of the relevant sub-section of section 50 relied upon. In the first place the plaintiff relies upon what he says was his belief that he was involved in a police sting. He also asserts that he was in constant contact with an RUC Special Branch superintendent with regard to the operation. It is submitted that the plaintiff was being advised by this officer as regards his participation. Further reliance is placed upon the alleged failure to look for the plaintiff or to search the plaintiff’s house or business being significant in this context. It is submitted that a conscious decision was taken by the police authorities in England in the first place not to arrest the plaintiff, not to follow him and not to seek to learn about his whereabouts at the initial stage and not to prevent him leaving England. A further factor relied upon on the part of the plaintiff is that he did not seek to conceal his presence or his identity when he returned to Ireland from England. In other words it is pointed out that he lived openly in this jurisdiction. Thirdly, it is submitted that there is no criminality attaching to the plaintiffs departure from the United Kingdom. It is further submitted that the United Kingdom authorities did not act with reasonable expedition in pursuit of the plaintiff. In this regard counsel refers to the fact that a warrant issued for the plaintiff in October 1993 and at that point in time they did not send it to the State for execution. By September of 1993 it is asserted that the United Kingdom authorities knew where the plaintiff was. By September of 1993 the initial warrant had been changed for reasons entirely unconnected with their alleged pursuit of Mr. Armstrong. This relates to the fact that they sought to change the warrant because of the extradition from France of Mr. Sherry, in circumstances where French law did not recognise the offence of the conspiracy. It is submitted that the substitution of the warrants and any delay caused thereby is not a responsibility in any way of the plaintiff Mr. Armstrong and was caused by circumstances entirely outside of his control. Further it is submitted that Mr. Armstrong travelled to Enniskillen on a number of occasions since 1992 and was not arrested. It is further pointed out that the applicant is a sixty year old man who has lived in Ireland since 1992. The plaintiff entered into a third relationship having being divorced for a second time and remarried in 1999.

The plaintiff alleges that there is a lack of correspondence between the offence contained in the warrant and the law in this jurisdiction. It is submitted by counsel that one must know what are the acts alleged in support of the English offence to see if the acts committed here would be a corresponding offence. It is submitted that in the instant case the facts of the offence specified in the warrant do not contain any statement of facts sufficient to make it known what facts are being alleged against Mr. Armstrong so as to make him guilty of the offence of the possession of drugs with intent to supply contrary to English law. It is submitted that the matter could have been and should have been addressed in one of two different ways. It is submitted that there could have been evidence of English law as to what the offence of possession embraced. It is further submitted that there ought to have been a sufficient statement of what acts were alleged against Mr. Armstrong which make him guilty of that offence. It is submitted that this court cannot know or assume what offence of possession contrary to the 1971 Act means and in the absence of being told what Mr. Armstrong is alleged to have done that the warrant cannot convey and does not convey any sufficient recital of facts in this regard. It is further submitted that this is something that appears to have been recognised because the affidavit of Detective Sergeant Johnson was put in and the only material before the District Court judge relevant to this were three lines in paragraph four of that affidavit. It is submitted that this is an insufficient basis for the learned President of the District Court to have concluded that it corresponded with an offence under Irish law.

Submissions made by Counsel on behalf of the defendant

On behalf of the defendant it is submitted by counsel that there was no negligence or invidious delays arising from the failure to arrest the plaintiff on the 29th of June, 1992 and the court must have regard to the explanation given by Sergeant Johnsen in relation to why the plaintiff was not arrested at that time. It is submitted that the reasons given were essentially in the public interest and for the protection of the police force. It is submitted that there was good and sufficient reason given as to why the plaintiff was not arrested at that time. On the 21st of October, 1992 the first warrant was issued, and it is submitted from that time that the police force in England were seeking Mr. Armsteeng. It is accepted that there is no evidence that the warrant of the 5th of August, 1993 nor the earlier warrant of the 21st October, 1992 were ever served on the authorities in this country.

With regard to the domestic proceedings instituted in this jurisdiction against the plaintiff by the Director of Public Prosecutions it is submitted that to allow those proceedings to continue to conclusion prior to the extradition of the applicant was correct in the light of the proper policy supported by judgments in this jurisdiction including the judgment of Kelly J. in the case of Lansan v. O’Dea. (unreported. High Court, 10th October 1997) It is submitted by counsel that insofar as this approach was taken that it cannot give rise to any exceptional circumstance arising under the terms of the section. Counsel concedes that there has been evidence showing a lapse of time but it is submitted that this evidence is not consistent with any negligent delay or any inaction. Counsel referred to the fact that from October, 1992 the English authorities were seeking the applicant and in this regard the circumstances of the delay or passage of time have been justified in respect of the lapse of time up to the issuing of the initial warrant. It is pointed out that the English authorities did not know of the whereabouts of the applicant but it appears to be clear that in or about April or May and certainly prior to July, 1993 there was some communication with the Gardaf. In July of 1993 there was a report seeking evidence and in September of 1993 the English authorities were aware of the plaintiff’s address in this jurisdiction. Counsel submits that there cannot be any undue delay in this regard insofar as the English authorities were organising themselves and that this lapse of time is something that is implicit in the section in relation to the extradition period.

The only difference between the warrant of the 15th of January, 1995 relied upon in these proceedings and the warrant of the 5th of August 1993 was a reference that it had been issued by a judicial authority. During the period between August of 1993 and January of 1995 there was some contact in October of 1994 with the Attorney General’s office. Counsel submits that during the fourteen month period up to the stage when the Attorney General’s office was consulted in Dublin by the English authorities, there was contact with the Crown Prosecution Office and if there was a lapse of time of fourteen months during this period it did not give rise to any exceptional circumstances that would cause the plaintiff to expect some legitimate expectation that there would not be proceedings for his extradition.

While it is conceded on behalf of the defendant that the letter from the Chief State Solicitors’ office might have caused confusion in regard to what has been referred to as being the second affidavit of Detective Constable Edwards, it is clear that what was intended to be substituted was an affidavit of facts of Sergeant Johnson for one believed to have been served and sworn by Detective Constable Edwards. It is clear that the District Court was informed that the authorities were relying on the warrant of the 19th January, 1995 and the verifying affidavit of Detective Constable Edwards related to the verification of the signature which was not put in issue at any particular time. It is submitted in the circumstances that on the authority of The State Holmes v. Furlone. the District Court had to be satisfied (a) of the validity of the warrant and other documents prescribed by the Act, (b) that the person named in the warrant is the person arrested and (c) that the offence in respect of which the warrant has been issued is one in respect of which it can make an order under the Act, namely that there is correspondence between the offence alleged and offence under Irish law. Dealing with the corresponding offence aspect, it is submitted by counsel on behalf of the defendant that it cannot seriously be disputed that there is no difference between the ingredients of the offence in Ireland and that in England in relation to possession of heroin. It is submitted by counsel that for the purposes of deciding the correspondence point the court merely has to read the warrant and form a view as to whether the acts alleged constitute an offence in Irish law if committed in this jurisdiction. With regard to the affidavit as to the facts, it is submitted by counsel that this merely indicates the surrounding circumstances. It is submitted that on any reasonable interpretation of the warrant and the said facts conveyed in it, that this shows that the facts would be an offence in Ireland and that there is sufficient correspondence. It is submitted by counsel that the warrant is sufficient in its detail if it conveys the nature of the charge. The learned President of the District Court concluded that section 4(1) of the Misuse of Drugs Act, 1971 in England corresponded with section 15 of the Misuse of Drugs Act, 1977 as amended in this jurisdiction. It is submitted by counsel that the constituent elements of the offence in the United Kingdom and in this jurisdiction are on all fours. The warrant indicates the alleged offence, gives the date, the name of the accused and his address and sets out the nature of the alleged offence. In support of his submissions, counsel has referred this court to a number of authorities including in the first place the case oiHanlon v. Flemrne [1981] I.R. 489 where at page 495 of the report Henchy J. indicated that the relevant decisions of the Supreme Court showed that it is a question of looking at the factual components of the offence specified in the warrant, regardless of the name given to it, and seeing if those factual components, in their entirety or in near entirety, would constitute an offence which, if committed in the State, could be said to be a corresponding offence of the required gravity. Included in the cases referred to by Henchy J. is the case of The State (Furlong) v. Kelly [1971] I.R. at 132 where Walsh J. stated at page 143

“The function of the District Justice is to examine the documents set before him and to see whether there is a sufficient statement of the particulars of the ingredients of the offence alleged, to enable him to bear on them his knowledge of the law of this State so that he may determine whether the acts alleged would constitute an offence under the laws of this State.”
In the case of Wvatt v. McLouehlin [1974] I.R. 378 at page 395 of the report Walsh J. stated that the courts in this jurisdiction are not concerned with the construction of English law. In that particular case he indicated that it appeared to be quite clear that the wording of the charge as laid in the warrant identified it with the offence of simple larceny in this country. He further stated that whether such wording is contained in the warrant is or is not necessary in England is a matter the court need not concern itself with and it is quite irrelevant. He indicated that the District Court here has to be satisfied that the offence laid in a warrant was sent here and endorsed for execution is so stated as to be recognisable as corresponding with an offence under our law. He further stated:

“It must, therefore, contain such essential factual material as may be necessary to recognise whether or not the acts complained of are ones which, if committed in this country, would amount to a criminal offence”
He continued as follows

“Until there is some reason to believe the contrary, it is to be assumed that a statement of facts such as the one appearing on the warrant executed in this case, or any warrant sent here for execution, is a truthful statement of the facts of the case in respect of which the arrest is sought. If it should transpire in any case that the statement of facts set out in the charge were not supported by any evidence then, of course, a very serious situation would arise and the courts would be obliged to examine such warrants in a completely different light because to set out statements of fact on a warrant for the purpose of giving the charge the appearance of corresponding to an offence under Irish law, when those factual elements are not capable of being born out by evidence, would be to practice a fraud upon the courts of this country. It is not suggested that such is the position in the present case. Whether or not it is necessary to prove all the facts which appear on the warrant for the purpose of establishing the offence under English law is immaterial. What is material is that the facts as stated do amount to an offence in English law. Section 55 of the Act of 1965 deals with the proofs which are normally adequate to establish this point, and such proof has been established in the present case in accordance with that section.”
Walsh J. continued as follows in his judgment

“It is, however, worth drawing attention to the opening words of section 55 which qualify the sufficiency of the proof required by the statute by the words ‘… unless the court sees good reason to the contrary.’ That, for example if a point is raised by the plaintiff to the effect that the facts alleged do not constitute an offence under English law then the court may be forced to embark upon an enquiry as to whether they do or do not.”
Later at page 396 of his judgment Walsh J. stated as follows

“The court of the requested country is not normally expected to enter into an inquiry as to whether the acts alleged constitute an offence in the requesting country; that is the purpose of section 55 of our Act of 1965 but it has the saving qualification as I have already mentioned. What the court of the requested country is concerned with is to inquire as to whether the acts alleged constitute an offence under the law of the requested country.”
Section 15(1) of the Misuse of the Drugs Act 1977, as amended, reads as follows:-

(1) “Any person who has in his possession, whether lawfully or not, a controlled drug for the purpose of selling or otherwise supplying it to another in contravention of regulations under section 5 of this Act, shall be guilty of an offence.”
It is submitted by reference to the ingredients of the offence in this jurisdiction that the constituent elements of the offence in the United Kingdom and the offence within this jurisdiction are on all fours. Further reliance was placed upon the judgment of Denham J. in the case Stanton v. O’Toole (unreported Supreme Court 9th November, 2000) where it is indicated that the court must look at the factual elements of the offence to see if they would constitute an offence in Ireland. In that case Denham J. cited with approval the authority of The State (Furlong) v. Kelly, (supra)

The lapse of time

Counsel on behalf of the defendant acknowledges that there has been a lapse of time in the instant case but submits that the plaintiff has failed to establish any exceptional circumstances which existed. It is submitted by counsel that the provision under section 50(2) (bbb) is activated only if the plaintiff establishes both a loss of time, together with exceptional circumstances and the lapse of time itself may be a factor to be addressed. Counsel indicates that the burden of proof imposed upon a plaintiff in this regard is high and it is related to the gravity of the offence in issue.

With regard to the plaintiff’s assertion that he was assisting the RUC in the matter in respect of which his extradition is now sought, it is submitted by counsel for the defendant that this is a matter for the trial itself and is a matter of defence and that it is not a matter giving rise to exceptional circumstances within the terms of the section of the Extradition Act.

With regard to the proceedings in the District Court it is submitted by counsel that at all stages it was the intention of the State to proceed with those matters and no indication was ever given to the plaintiff to the contrary. It is submitted that part of the lapse of time that occurred in the course of those proceedings was partly the applicant’s problem and partly that of the State. It was submitted that the State was entitled to have the domestic proceedings out of the way before they sought to pursue the extradition proceedings themselves. It is accepted, however, that in the course of the extradition proceedings, insofar as a misunderstandings arose in relation to the affidavit of Sergeant Johnson and the belief that an earlier affidavit sworn in similar terms sworn by Detective Constable Edwards had been served on the plaintiff, it was incumbent on the court in those circumstances to grant an adjournment to the applicant and this is something that the applicant was entitled to, to ensure that fair procedures prevailed. With regard to the plaintiff living openly, it is submitted that this is not sufficient in itself to create exceptional circumstances. It is submitted that the passage of time is not accompanied by any exceptional circumstance.

In reply to submissions made by Mr.Carthy, Mr. McGuinness contrasts the apparent speed at which the authorities were able to deal with Mr. Sherry to the situation of the applicant and points out that it was not until 1994 that the authorities in this State were ultimately approached with a view to having the applicant extradited from the State to the United Kingdom. Counsel further reiterates that there is no explanation for the delay between the endorsement of the warrant on the 6th March, 1995 and its execution on the 12th of May, 1995. Mr. McGuinness further addressed this court in relation to the refusal to cross-examine Constable Edwards on his affidavit. He points out that the warrant was issued on the information of Detective Constable Edwards, he verified the signature and he swore his own affidavit. He points out that the detective constable was the case officer and that he had previously come to Ireland and gave evidence in the bail application and was well familiar with the case. He submits that the cross-examination goes to one issue which was alive which is the issue of correspondence. Counsel further submits that in relation to the absence of the transcript of the trial of Mr. Sherry that the facts disclosed in that transcript are facts which would be legitimate for the court to consider in relation to the issue of correspondence. It is further submitted by counsel that the warrant itself is insufficient insofar as it sets forth the relevant ingredients of the offence in assessing the issue of correspondence. It is submitted that insofar as the warrant uses the word ‘possession’ that it is insufficient because there is no evidence as to what the English law of possession embraces within the scope of its control, nor is there sufficient evidence that what is alleged was actually done by Mr. Armstrong.

With further reference to the issue of the passage of time or delay it is submitted by counsel for the plaintiff that the correct test in the instant case is not a test of estoppel.

Conclusions in relation to the Section 50 proceedings

In the first instance dealing with the issue of passage of time or delay I am satisfied that there has indeed been a significant passage of time in this case as indicated by counsel in opening this case. Some of this is clearly explained, other periods of time are not. In relation to the initial period from June of 1992 it appears that a deliberate decision was taken for police reasons in conjunction with the Crown Prosecution Office not to arrest the applicant at the outset at a stage when he was available to be arrested in relation to the matters, the subject matter of this extradition application. The applicant left the jurisdiction of United Kingdom and came to Ireland. It appears that from enquiries made that his whereabouts became known to be in this State and ultimately by September of 1993 his exact address was established. In the meantime by October 1992 a warrant was issued for his arrest. This indicates that it was the intention at an early stage to have the applicant arrested and tried for the offences for which his extradition is now sought.

Undoubtedly, if the police reasons advanced in the context of the protection of sources and identification of informants did not exist the applicant could have been arrested at a very earlier stage and brought to trial in the United Kingdom.

It is clear that the applicant left the United Kingdom believing that he had avoided any suspicion. He apparently lived openly in this jurisdiction at all relevant times. Circumstances prevailed whereby fresh warrants had to be sought, in the first instant arising from the extradition of Mr. Sherry, who was believed to have been involved in the criminal activity with the plaintiff. His extradition from France could only have been obtained after a change in the warrant in light of the fact that there was no corresponding offence in France to one of conspiracy initially laid in the warrant. A corresponding change was made in relation to the warrant pertaining to the plaintiff in circumstances where it was clear that the intention was that both the plaintiff and Mr. Sherry would be tried together. An incidental change was thereafter made to ensure that the warrant contained the necessary endorsement to have him extradited from this jurisdiction to the United Kingdom.

It appears that certain contact was maintained with the Garda Siochana in reference to the plaintiff in July of 1993. It appears, however, that the formal matter of extradition did not arise until late in 1994 when contact was made with the Office of the Attorney General resulting in a file being opened at that time. Ultimately the warrant at issue in these proceedings issued in January of 1995 and while this resulted in an application being made to the authorities in this State for its backing and execution, the provisions of the Extradition Act had to be complied with and the Attorney General had to be consulted. The evidence shows that he made a decision on the 14th of February but the warrant for the arrest of the applicant was not executed until the 12th of May, 1995. Since that time matters have been delayed in the initial stages by domestic criminal charges being preferred against the plaintiff which it was considered appropriate to determine before proceeding with the extradition application. It is clear that this approach was one that was urged upon the District Court by counsel on behalf of the applicant. Accordingly it cannot be submitted that this gave rise to any undue delay. However, those proceedings ultimately were only terminated in July, 1997 when a nolleprosequi was entered.

Thereafter the proceedings for the plaintiff’s extradition in the District Court came on for hearing but were themselves ultimately delayed in part by clear confusion in relation to the existence of an affidavit sworn by Detective Constable Edwards. It is clear that the confusion which existed as to whether that particular affidavit had been served on the plaintiff or his legal representatives gave rise to some confusion in the District Court and resulted in the application before the District Court having to be adjourned.

The relevant period of time on the basis of the authorities cited to this court is the time from the 29th of June, 1992, when the plaintiff is alleged to have committed the offence and when he might have been arrested, to the time when these proceedings were instituted on 29th September 1998 or alternatively when this matter came on before this court in December, 2001.

It is clear that time of itself is not sufficient to bring into application the provisions of section 50(2) (bbb) but there must be other exceptional circumstances such that it would be unjust, oppressive or invidious to deliver the plaintiff up under section 41 of the Act.

With regard to the exceptional circumstances alleged, I am satisfied that the fact that the plaintiff lived openly and left the United Kingdom in circumstances where no criminality exists or is alleged do not of themselves constitute exceptional circumstances. I am satisfied that there has been some want of reasonable expedition on the part of the United Kingdom authorities, especially a period of fourteen months since August of 1993 to November, 1994 which has not been explained. The circumstances whereby the plaintiff was not arrested at the outset, nor followed but was allowed to leave the United Kingdom are certainly unusual circumstances but these have been explained by the United Kingdom authorities and I am disposed to except this explanation in circumstances where no submission has been raised to suggest that these were unfounded. The confusion in the District Court has certainly given rise to some delay but of a fairly limited nature. I am satisfied that the circumstances relating to the existence of domestic charges which account for some period of time were not of themselves exceptional and certainly I believe that the time relating to those offences prior to the nolle prosequi being entered is a time for which no blame can attach to the respondent, though equally I am not inclined to apportion any blame to the plaintiff in respect of the same period.

I am prepared to except the plaintiff’s evidence that he did go to Northern Ireland on occasions since 1992 and was not arrested, but again these were in circumstances were his visits were apparently of a limited nature and he was generally residing in this jurisdiction. There is no suggestion that he was known to be in Northern Ireland when he was there at any time after the police in Northern Ireland were alerted to the fact that he was wanted and that he should be arrested, notwithstanding publicity attaching thereto.

With regard to the plaintiff’s version of events surrounding the 29th of June, 19921 am satisfied that these are essentially matters that must be addressed in the context of any proposed trial of the plaintiff and it is clear from the cross-examination of Detective Sergeant Johnson that the version of events that he had presented to the court is not one that is accepted as true by the police in England.

The fact that the plaintiff has remarried is of course a factor to be considered by the court, but I am particularly influenced by the fact that this remarriage took place at a time after the District Court had made an order for the plaintiff’s extradition. In conclusion, I am satisfied that while there has been a lapse of time and there are some circumstances which are somewhat unusual and might be described as exceptional, that it cannot be said that it would be either unjust, oppressive or invidious to deliver the plaintiff up under section 47 at this point of time.

With regard to the issue of the correspondence of offences I am satisfied that the offence as described in the warrant is one relating to possession of a controlled drug in circumstances were the same drug is prescribed in this jurisdiction and possession for the purpose of sale or supply of this drug in this jurisdiction is an offence well known to Irish law. I am satisfied that the warrant on its face sets forth sufficient material to establish correspondence with an offence known to Irish law. I am, furthermore, satisfied that it was not necessary for the District Court to receive evidence of foreign law, namely the law of the United Kingdom as that was not put in issue in the proceedings in the District Court, nor indeed in this court. I am also mindful of the fact that the District Court had additional evidence from Detective Sergeant Johnson, but essentially I am influenced by the terms of the warrant itself and, in circumstances while it has been submitted that the word ‘possession’ might have a different connotation under the law of the United Kingdom, no evidence has been put before this court in relation to English law calling for enquiry in this regard and on the facts set forth on the face of the warrant I am satisfied that the offence referred to there does correspond to an offence known to the law of this jurisdiction and accordingly I refuse the relief which the plaintiff seeks in these proceedings.

Attorney General v Dyer

, unreported, High Court, Finnegan P., March 26, 2003

Judgment of Finnegan P. delivered on the 26th day of March 2003

This is an application pursuant to the Extradition Act 1965 Part III as amended. A net issue arises on the application as to whether the Applicant has discharged the onus under the Extradition Act 1965 section 47(2) which provides –
“47(2) An order shall not be made under subsection (1) if it appears to the Court that the offence specified in the warrant does not correspond with any offence under the law of the State which is an indictable offence or is punishable on summary conviction by imprisonment for a maximum period of at least six months”.
Definitions for the purposes of the Extradition Act 1965 Part III are contained in section 42 thereof as amended by the Extradition (European Union Conventions) Act 2001 section 26. Section 42 as amended provides as follows –
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“42(2) For the purposes of this Part an offence under the law of a place to which this Part applies corresponds to an offence under the law of the State where the act constituting the offence under the law of that place would, if done in the State, constitute an offence under the law of the State punishable
(a) on indictment, or
(b) on summary conviction by imprisonment for a maximum term of not less than 6 months or by a more severe penalty.
(3) For the purposes of this Part, an offence specified in a warrant corresponds with an offence under the law of the State if –
(a) the act constituting an offence so specified would, if done in the State on the day the warrant is produced under section 43(1)(b), constitute an offence under the law of the State”.
The application is concerned with some 27 warrants issued by a judicial authority in Jersey. For the purposes of this application 24 of the warrants can be considered as being to the like effect so far as the offence specified in each case is concerned. The exceptions are warrants numbered 4, 26 and 27 and I propose dealing with these three warrants separately hereafter. In relation to the 24 warrants to the like effect I propose dealing with warrant number 1 and my determination in relation to that warrant will apply to the other 23 warrants with which I am now concerned.
Warrant No. 1 sets out the offence alleged to have been committed by the Respondent in Jersey in the following terms-
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“On or around December 1997, in the Island of Jersey obtained from Runamoke Limited payment for the total sum of £3,200, for the benefit of St. Bernard’s Garage and Car Hire Limited trading as Holiday Autos, by falsely pretending that a Cagiva Moke motor vehicle registration no. J72522, the property of G de Z Investments Limited, was the property of the said St. Bernard’s Garage and Hire Car Limited, trading as Holiday Autos. Contrary to common law”.
The Applicant submits that in this jurisdiction there are two corresponding offences namely –
1. An Offence under the Larceny Act 1916 section 32 as amended by the Larceny Act 1990 section 9 which provides as follows –
“32 Every person who by any false pretence –
(1) with intent to defraud, obtains from any other person any chattel, money, or valuable security, or causes or procures any money to be paid, or any chattel or valuable security to be delivered to himself or to any other person for the use or benefit or on account of himself or any other person; or
(2) with intent to defraud or injure any other person fraudulently causes or induces any other person
(a) to execute, make, accept, endorse or destroy the whole or any part of any valuable security; or
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(b) to write, impress, or affix his name or the name of any other person, or the seal of any body corporate or society, upon any paper or parchment in order that the same may be afterwards made or converted into, or used or dealt with as, a valuable security;
shall be guilty of a misdemeanour and on conviction thereof liable to imprisonment for any term not exceeding ten years.
2. An offence under the Criminal Justice Act 1951 section 10 which provides as follows-
“10.-A person who by any false pretence, with intent to defraud, obtains anything capable of being stolen or causes it to be delivered to himself or to any other person for the use or benefit or on account of himself or any other person, shall be guilty of a misdemeanour and on conviction shall be liable to penal servitude for a term not exceeding five years or to imprisonment for a term not exceeding two years”.
In each case the offence contains within its statutory definition the requirement of an intent to defraud whereas the offence alleged in the warrant does not in its terms contain such a requirement. The issue arises therefore as to whether the offence specified in the warrant corresponds with an offence under the law of the State.
The Applicant, as to the law of Jersey, relies upon an Affidavit of Michael St. John O’Connell, a Jersey Advocate. The Respondent objects that the competency of the
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Deponent is not shown on the Affidavit. In the Affidavit Mr. St. O’Connell deposes that he is an advocate of the Royal Court of the Island of Jersey, that he has held this qualification since 1987 and that he was appointed Crown Advocate in 1999. The objection to competency was raised at the conclusion of the proceedings before me no application to cross examine the Deponent on his Affidavit having been made. A witness is accepted as competent to prove foreign law if in his profession he is acquainted with such law: O’Callaghan v O’Sullivan 1925 1 I.R. 90 at 110.

“Advocate” is a word in ordinary use in the English language. The Deponent here deposes that he holds the qualification of Advocate of the Royal Court of the Island of Jersey. I am satisfied that this is sufficient, in the absence of any contrary evidence being adduced, to qualify the Deponent as an expert in the law of Jersey.
It is well settled that an expert giving evidence as to foreign law while he must give evidence of his opinion may refer inter alia to decisions of the court in the relevant jurisdiction: Thelwall v Yelverton 14 ICLR 188 at 235 – 6 and O’Callaghan v O’Sullivan 1925 1 I.R. 90.
In relation to the alleged offence under the law of Jersey Mr. St. O’Callaghan deposes that it is necessary to show that the Defendant had deliberately made a false representation with the intention and consequence of causing thereby actual prejudice to someone and actual benefit to himself or another and that Jersey law requires an
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intent to defraud. This proposition is borne out by the report of FOSTER V A.G. 1992 JLR 6 which is exhibited in the Affidavit. The issue between the parties however is whether having regard to reported decisions in this jurisdiction and on the identical provisions in United Kingdom legislation I am entitled to have regard to this Affidavit evidence in determining whether the alleged offence corresponds with an offence under the law of the State.

In the State (Furlong) v Kelly 1971 1 I.R. 132 the Supreme Court considered section 47(2) of the Act of 1965. O’Dalaigh C.J. dealt with the nature of the enquiry to be carried out by the court in the following terms –
“The basic enquiry is to discover whether the several ingredients which constitute the offence specified in the warrant, or one or more of such ingredients, constitute an offence under the law of the State and, if they do, whether that offence (“corresponding offence “) is an indictable offence or if not whether it is punishable on summary conviction by imprisonment for a maximum period of at least six months. As to the first limb of the enquiry, the position may be illustrated algebraically as follows. If the English offence consists of, say, four essential elements (a) + (b) + (c) + (d), then a corresponding Irish offence exists only if it contains either precisely the same four essential elements or a lesser number thereof. If the only Irish offence that can be pointed to has an additional essential ingredient (that is to say, if the Irish offence may be defined as (a) + (b) + (c) + (d) + (e)) then there is no corresponding Irish offence to satisfy the requirements of section 47(2) of the Act of 1965 for the simple reason that, ex hypothesi, conduct (a) + (b) + (c) + (d) falls short of being an offence under Irish law or, in plainer words, it is not an offence. It is fundamental to
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extradition that no one shall be extradited for acts or omissions (the offence alleged in the warrant) which if repeated within the State, would not offend against our law “.
Walsh J. however adopted a different approach –
“The next point which calls for consideration is how the District Justice is to ascertain and determine what is the corresponding offence under the law of this State. I do not for a moment think that the Act ever contemplated that a District Justice or indeed the High Court would be called upon in such cases to construe foreign law and indeed it would be manifestly impracticable to expect every District Justice in the country to undertake such a task even if he were competent to do so. There is a way of proving foreign law and that is by the expert testimony of a person who is qualified as a legal practitioner in the country whose law is in question. In the present case the offence appearing in the English warrant is an offence which is alleged to be a contravention of an English Act, namely, the Theft Act of 1968. It is to be borne in mind that the warrant in question, like all other warrants of this kind, is issued primarily for execution within the jurisdiction of the country wherein it is issued and a simple statement of the offence referring to the local statutory provision, if it be a statutory offence, is probably sufficient in respect of execution in that country. However, different considerations arise where the warrant is sent to this country for execution. The function of the District Justice is to examine the documents set before him and to see whether there is a sufficient statement of the particulars of the ingredients of the offence alleged to enable him to bring to bear on them his
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knowledge of the law of this State so that he may determine whether the acts alleged against the prisoner would constitute an offence under the laws of this State. It appears to me to be necessary that before a District Justice can enter upon his determination of this matter, either the warrant itself must contain sufficient particulars of a factual nature setting out the ingredients of the offence alleged or it should be accompanied by an Affidavit by the prosecuting authority, or a duly authorised officer of the prosecuting authority, setting out the particulars of the facts complained of – somewhat as the particulars of offences appear in a count on an indictment under our law. A statement of the offence as such may be quite uninformative. Undoubtedly it is true that in respect of statutory provisions or common law offences which were common to this country and other countries under identical statutory provisions or identical common law at the time of the setting up of the State, there may be little difficulty because the District Justice will be versed in the law. But in respect of any offence created outside this jurisdiction subsequent to the setting up of this State the position is entirely different and it becomes immediately a question of foreign law. For this reason I do not find it necessary to enter into any examination of the Theft Act in England as, for the reasons I have given, I do not believe that it would be the concern of the District Justice in this case “.
In Wyatt v McLoughlin 1974 I.R. 378 at 389 Finlay J. in the High Court dealt with the conflicting approaches of O’Dalaigh C.J. and Walsh J. in The State (Furlong) v Kelly in the following terms:
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“In this case, however, the warrant contains details of the facts and acts alleged, and it seems to me that the method of determining the issue propounded by Mr. Justice Walsh is the appropriate method for this case at least. I do not decide and it is not necessary for me to decide whether the approach contained in the Judgment of O’Dalaigh CJ may not be appropriate in some other case “.
The Judgments in that case on appeal explain the apparent differences between O’Dalaigh C.J. and Walsh J. At pages 397 – 398 Walsh J. said –
“Under such (extradition) arrangements it is not the legal qualification of the offence according to the foreign law concerned or the name it has in that law which is of importance but it is the facts underlying the offence as ascertainable from the warrant or conviction, as the case may be, or as may be ascertained from such other documents as may accompany the warrant. Therefore, the courts of this State when dealing with warrants endorsed for execution in accordance with Part III of the Act of 1965, must be satisfied that the acts constituting the particular offence for which extradition is sought are acts which, if committed within this jurisdiction would constitute a criminal offence. For the reasons stated in Furlong’s case it is necessary that either the warrant or some other document accompanying it should set out sufficient information as to these acts to enable the courts of the State to identify the corresponding offence, if any, in our law. It cannot be sufficient simply to use the name by which the crime is known, or alleged to be known, in the requesting country even though the same name may be used in this country as the name of a crime,
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because the acts complained of, although having identical names, may constitute quite different criminal offences in different countries or, indeed, no offence at all in one of them “.
Walsh J. I am satisfied in both Furlong’s case and Wyatt’s case was consistent in holding that expert testimony as to foreign law is admissible on an application under the Act of 1965. Again if the statement of the alleged foreign offence in the warrant is deficient in failing to set out the factual content of the alleged offence which would show that that offence corresponds with an offence under the law of the State the deficiency can be made good by an Affidavit as to such facts. The Affidavit of Mr. St. John O’Callaghan is sufficient to satisfy me that under the law of Jersey a necessary ingredient in the alleged offence is the intention of obtaining the benefit in question. To defraud is to deprive by deceit: see Criminal Law, Charlton McDermott and Bolger Para 10.120. However neither the warrant nor the Affidavit of Mr. St. O’ Callaghan state as a fact that the Respondent here had that necessary intention and having regard to this circumstance I must determine whether it is necessary that this is a requirement and, if it is, whether the Applicant has adduced evidence sufficient to satisfy me that the requirements of section 47(2) of the Act of 1965 are met.
In Wilson v Sheehan 1979 I.R. 429 Henchy J. said –
“When it comes to the words in the warrant by which the factual content of the specified offence is identified, the correct rule is that those words should prima
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facie be given their ordinary or popular meaning unless they are used in a context which suggests that they have a special signification. The reason for that rule is that, when statutes or other public or formal documents directed to the public at large, or to any member of the public at large, are being interpreted, it is to be assumed, in the absence of a counter-indication, that the words used in such document have been used in their popular rather than in any specialised or technical sense.
So also with the particulars of an offence in a formal written charge. The primary purpose of the particulars is to enable the member of the public who is being charged to identify the conduct that is being alleged against him as a criminal offence. Rule 4(3) of the rules in the first schedule to the Criminal Justice (Administration) Act, 1924, provides that the statement of offence in an indictment “shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence.”
In Hanlon v Fleming 1981 I.R. 495 Henchy J. dealt with the requirement of correspondence as follows –
“The relevant decisions of this Court, such as The State (Furlong) v. Kelly, Wyatt v. McLoughlin and Wilson v. Sheehan show that it is a question of looking at the factual components of the offence specified in the warrant, regardless of the name given to it, and seeing if those factual components, in their entirety or in
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their near-entirety, would constitute an offence which, if committed in this State, could be said to be a corresponding offence of the required gravity “.
The effect of this statement of the law is that it makes clear that the court must have regard to the factual components of the offence under foreign law in order to determine if it corresponds with an offence under the law of the State. It is clear from the dicta of Walsh J. quoted above that the court is not confined to the factual components stated in the warrant but can have regard to facts including foreign law proved on affidavit. In Wyatt v McLoughlin Finlay J. correctly characterises the objective of the court in analysing facts disclosed where at page 389 of his judgment he says –
“The approach of Mr. Justice Walsh, (in the State (Furlong) v Kelly) on the other hand, was that there simply was not a sufficient allegation of fact or detailed allegation to permit of a comparison of the offence charged with any indictable offence in Ireland”.
This is consonant with the judgment of Henchy J. in Wilson v Sheehan. Foreign law is a fact to be proved in evidence. I have before me the factual components of the alleged offence in the warrant coupled with the Affidavit of foreign law as to the ingredients of that offence and taking all this evidence together I am satisfied that there is disclosed the requisite correspondence. The focus of the comparison is the constituents of the offences in the requesting jurisdiction and this State: a specific statement in the warrant or accompanying documents that, in this case, the Respondent had the necessary mens rea is not necessary to
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enable the court to determine correspondence once that mens rea is shown to be a requirement of the offence in each jurisdiction as a matter of law.

The Court of Appeal in England in R v Governor of Belmarsh Prison Ex Parte Gilligan 2001 1 AC 84 dealt with the identical provisions contained in the Backing of Warrants (Republic of Ireland) Act 1965. The statement of law by May L.J. in the Divisional Court in that case was expressly approved by the Court of Appeal. May L.J. said –
“But however the warrant is drawn, that is what the court has to look at. No other material is admissible to determine the offence specified in the warrant, except that exceptionally evidence might be admissible for the strictly limited purpose of explaining technical language in the warrant or words which the English court would not otherwise understand. But such evidence would not extend to explaining the legal components in Irish law of any label given to the offence in the warrant. A warrant with short particulars will to that extent specify conduct. It is to that extent a conduct based enquiry. But the conduct is to be derived from the warrant not from external material or evidence “.
See also Judgment of Lord Steyn at page 93 of the Report. This it seems to me differs from the approach of Walsh J. and Henchy J. which I mention above which envisaged expert evidence being available to the court including evidence of foreign law. In Wilson v Sheehan at page 430 Henchy J. envisages expert evidence as to the effect of a section in a foreign statute.
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In the present case I am concerned not with a statute but with the common law of Jersey. It is quite clear from the report of Foster v Attorney General that the common law of Jersey is something quite distinct from the common law in Ireland or indeed England. Jersey law and in particular the law relating to fraud is derived from customary law with influence from French law although English categories and definitions from inter alia the Larceny Act 1916 have been adopted. It is clear from the evidence before me that the phrase in the warrant “contrary to common law” imports into the warrant the requirement of the same mental element as is required by the offences which the Applicant relies upon as corresponding offences. The dicta of May L. J. which I quote above acknowledges that exceptionally evidence might be admissible for the strictly limited purpose of explaining technical language in the warrant or words which an English court would not otherwise understand. The evidence on Affidavit which I have achieves just this purpose and so notwithstanding what I perceive as a difference in approach between the Supreme Court and the Court of Appeal such evidence would be admissible in both jurisdictions. The effect of the reference “contrary to common law” in the warrant is to import into the warrant an allegation against the Respondent of an intention to defraud.
Warrant No. 4 charges the Respondent with an attempt, the offence which it is alleged the Respondent attempted being a like offence to that in Warrant No. 1. It is not in dispute that in Irish law an attempt to commit either of the offences relied upon by the Applicant as corresponding offences is an offence at common law and otherwise meets the requirements of the Act of 1965.
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The Applicant did not pursue the offences alleged in Warrants No. 26 and 27 and did not seek to rely on any offence under the law of the State as a corresponding offence.
Having regard to the foregoing I order that the Respondent be delivered up on foot of the warrants 1 to 25 inclusive

The Attorney General -v- Pocevicius

[2013] IEHC 229 (09 April 2013)
URL: http://www.bailii.org/ie/cases/IEHC/2013/H229.html

JUDGMENT of Mr. Justice Edwards delivered on the 9th day of April 2013.
Introduction
In these proceedings the Kingdom of Norway (hereinafter Norway) seeks the extradition of the respondent with a view to prosecuting him in Norway for the offence of importing approximately 5 kilograms of methamphetamine to Norway from Lithuania on the 25th September, 2008, contrary to section 162(1) cf. subsection 3, first sentence of the Norwegian General Civil Penal Code, an Act of the 22nd May, 1902, No.10 with subsequent amendments, the latest made by Act of the 21st December, 2005m No.131 (hereafter “the Norwegian General Civil Penal Code”).

It is alleged that the respondent was due to receive this methamphetamine at Stavanger from a man called Michail Oleinik. He was the person who had physically brought the drugs into Norway via the Swedish frontier with Norway just before 4pm on the 24th September, 2008. Mr. Oleinik was arrested in Stavanger on the 25th September, 2008.
Legislation and international agreements
The application of Part II of the Extradition Act 1965 (hereinafter the Act of 1965) is governed by s.8 thereof.

S.8 (1) (as substituted by s. 57 of the Criminal Justice (Terrorist Offences) Act, 2005) provides:

“Where by any international agreement or convention to which the State is a party an arrangement (in this Act referred to as an extradition agreement) is made with another country for the surrender by each country to the other of persons wanted for prosecution or punishment or where the Minister is satisfied that reciprocal facilities to that effect will be afforded by another country, the Minister for Foreign Affairs may, after consultation with the Minister, by order apply this Part—

(a) in relation to that country, or
(b) in relation to a place or territory for whose external relations that country is (in whole or in part) responsible.”

Norway is a party to the European Convention on Extradition 1957 and the Minister for Foreign Affairs has applied Part II of the Act of 1965 to Norway by means of the Extradition Act 1965 (Application of Part II) Order, 2000 (S.I. No. 474 of 2000).
S.23 of the Act of 1965 provides that:
“…a request for the extradition of any person shall be made in writing and shall be communicated by (a) a diplomatic agent of the requesting country, accredited to the State, or (b) any other means provided in the relevant extradition provisions.”

Article 12 of the European Convention on Extradition 1957 provides:

“1. The request shall be in writing and shall be communicated through the diplomatic channel. Other means of communication may be arranged by direct agreement between two or more Parties.

2. The request shall be supported by:

a. the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting Party;
b. a statement of the offences for which extradition is requested. The time and place of their commission, their legal descriptions and a reference to the relevant legal provisions shall be set out as accurately as possible; and

c. a copy of the relevant enactments or, where this is not possible, a statement of the relevant law and as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality.”

Under s. 26(1) of the Act of 1965 (as amended by s. 7 of the Extradition (Amendment) Act 1994, and by s.20 of the Extradition (European Union Conventions) Act 2001):
“(a) If the Minister receives a request made in accordance with this Part for the extradition of any person, he shall, subject to the provisions of this section, certify that the request has been made.
(b) On production to a judge of the High Court of a certificate of the Minister under paragraph (a) stating that a request referred to in that paragraph has been made, the judge shall issue a warrant for the arrest of the person concerned unless a warrant for his arrest has been issued under section 27.”

In this context s. 3 of the Act of 1965 provides that “Minister” means the Minister for Justice.
The circumstances in which an order under Part II of the Act of 1965 can be made are set out in s. 29(1) of that Act, as amended by s. 20 of the Extradition (European Union Conventions) Act 2001, which (to the extent relevant) is in the following terms:

“29—(1) Where a person is before the High Court under section 26 …. and the Court is satisfied that—
(a) the extradition of that person has been duly requested, and

(b) this Part applies in relation to the requesting country, and

(d) the documents required to support a request for extradition under section 25 have been produced,

the Court shall make an order committing that person to a prison ….. there to await the order of the Minister for his extradition.”

As regards the documents required to support a request for extradition, s. 25 of the Act of 1965 as amended provides:
“25—(1) A request for extradition shall be supported by the following documents—

(a) the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or, as the case may be, of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting country;
(b) a statement of each offence for which extradition is requested specifying, as accurately as possible, the time and place of commission, its legal description and a reference to the relevant provisions of the law of the requesting country;

(c) a copy or reproduction of the relevant enactments of the requesting country or, where this is not possible, a statement of the relevant law;

(d) as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality, including, where available, any fingerprint, palmprint or photograph, and

(e) any other document required under the relevant extradition provisions.

(2) For the purposes of a request for extradition from a Convention country, a document shall be deemed to be an authenticated copy if it has been certified as a true copy by the judicial authority that issued the original or by an officer of the Central Authority of the Convention country concerned duly authorised to so do.”

The request for extradition in this case – legal formalities
The Court is satisfied on the evidence before it that the respondent’s extradition has been duly requested, by means of a Rogatory Commission addressed to the Competent Legal Authorities in Ireland, dated the 12th October, 2010, (hereinafter called “the Rogatory Commission”) and communicated to the Irish Department of Foreign Affairs by the Royal Norwegian Embassy in Dublin on the 13th July, 2011, later supplemented by a document entitled “Supplement to the Rogatory Commission addressed to the Competent Legal Authorities in Ireland”, dated the 7th June, 2012, (hereinafter called “the supplement of the 7th June, 2012”) and communicated to the Irish Department of Foreign Affairs by the Royal Norwegian Embassy in Dublin on the 11th July, 2012. The supplement of the 7th June, 2012, constitutes an addendum to the initial request for the respondent’s extradition. The court is satisfied that the Rogatory Commission and the supplement of the 7th June, 2012, are to be considered together as a single request, and that that request has been made properly and in accordance both with s. 23 of the Act of 1965 and with Article 12 of the European Convention on Extradition 1957.
The Court is further satisfied that Part II of the Act of 1965 applies to the requesting country.

The Court has had produced to it a certificate of the Minister for Justice and Equality, dated the 3rd September, 2011, and made under s. 26(1)(a) of the Act of 1965 as amended, which certificate is in the following terms:

“WHEREAS by the European Convention done at Paris on 13 December 1957, to which the State is a party, an arrangement was made with the other countries who are parties to the Convention for the surrender of persons wanted for prosecution or punishment for an offence specified in Article 2 thereof,
AND WHEREAS the said Convention was ratified on behalf of Ireland on 12 July 1988,

AND WHEREAS the Convention has also been ratified or acceded to on behalf of Norway,

AND WHEREAS on 19 December 2000 the Government made an Order being the Extradition Act 1965 (Application of Part II) Order 2000 applying Part II of the Extradition Act 1965, in relation to a number of countries including Norway,

AND WHEREAS I have on 15 July 2011 received a request duly made by Norway in accordance with Part II of the Extradition Act 1965 and the said Convention for the extradition of Renaldas Pocevicius which has been duly communicated by its Embassy,

NOW I, Alan Shatter, Minister for Justice and Equality hereby certify that the aforesaid request has been duly made by and on behalf of and received by me in accordance with Part II of the Extradition Act 1965.”

On the 14th September, 2011, the High Court issued a warrant for the arrest of the respondent and the respondent was duly arrested on the 17th September, 2011. He was granted bail and has been remanded in that status from time to time pending the conclusion of these proceedings.
I am satisfied that in the present case that the Court has had produced to it in respect of each offence for which the respondent’s extradition to Norway is sought the original or an authenticated copy of the relevant warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the Kingdom of Norway. The documents in question consist of an initial domestic arrest warrant issued by Stavanger District Court on the 25th November, 2008, and which remained in force until the 30th January, 2009; a subsequent arrest order of Stavanger District Court dated the 12th January, 2010, ordering that he “may continue to be wanted by the police with a view to his arrest and extradition, and prosecution in Norway” until the 1st September, 2010 ; a subsequent arrest order of Stavanger District Court dated the 1st September, 2010, extending the previous order until the 1st March, 2011; a subsequent arrest order of Stavanger District Court dated the 1st March, 2011, extending the previous order until the 1st March, 2012; a further order of Stavanger District Court dated the 22nd February, 2012, extending the previous order until the 1st March, 2013, and a further order of Stavanger District Court dated the 19th February, 2013, extending the previous order until the 1st July, 2013.

Authentication is provided in the following circumstances. The Court has a certificate dated the 8th July, 2011, from the Norwegian Minister for Justice, a Mr. Knut Storberget, who has certified that the documents accompanying the (initial) request were prepared in support of the request, are issued by the appropriate authority according to Norwegian law, and have been signed by an officer of the Norwegian Ministry of Justice and Police. The Court understands that in Norway the Minister for Justice is the Central Authority for the purposes of Council Act of the 27th September, 1996, adopted on the basis of Article K.3 of the Treaty on European Union, drawing up the Convention relating to extradition between the Member States of the European Union. In addition, the documents accompanying the initial request are all notarised by a Notary Public. The Court further has a certificate dated the 5th July, 2012, from a Deputy Director General at the Norwegian Ministry of Justice, a Ms. Torunn Marie Bolstad, who has certified that the addendum to the request for the extradition of the respondent, i.e. the supplement of the 7th June, 2012, and the documents accompanying it, should be considered as part of the documentation supporting the request, and that these documents “are issued by the competent Norwegian authorities, and duly certified by an Officer of State.” Counsel for the respondent has confirmed that no issue is being taken as to the sufficiency of the authentication provided, and I am satisfied in any event that it is sufficient.

I am further satisfied that the Court has had produced to it a statement of each offence for which extradition is requested specifying, as accurately as possible, the time and place of commission, its legal description and a reference to the relevant provisions of the law of the Kingdom of Norway. I consider that the charge sheet dated the 18th November, 2008, accompanying the request for extradition is sufficient for that purpose. (The English translation incorrectly dates it as the 11th November, 2008, but no point is taken on this).

I am further satisfied that in the present case the Court has had produced to it a copy or reproduction of the relevant enactments of the Kingdom of Norway, and in particular relevant extracts from sections 67 and 162, respectively, of the Norwegian General Civil Penal Code, and sections 171 to 175, inclusive, of the Norwegian Criminal Procedure Act of the 22nd May, 1981, No.25 with subsequent amendments, the latest made by Act of 30th June 2006 No. 53 (hereafter “the Norwegian Criminal Procedure Act”).

The request for extradition in this case was accompanied by a description of the person concerned with two photographs annexed, one taken from the side and one taken from the front. In the circumstances I am satisfied that the requirements of s. 25(1)(d) were fulfilled.

Finally, I am satisfied that there are no other documents required under the relevant extradition provisions, and s. 25(1)(e) has no application in the circumstances of this case.
The substance of the request:
The Rogatory Commission is in the following terms:

“With reference to Article 12 and Art. Nos. 1 and 2 of the European Convention of 13 December 1957 on the extradition of criminals, the Norwegian authorities request the assistance of the Irish authorities for the extradition of the Lithuanian national
Renaldas Pocevicius, date of birth 7 February 1973

Address: 12, The Belfry, Clonakilty Co. Cork, Ireland in that he is charged with offences outlined in a separate charge sheet dated 18 November 2008 (Attachment 1).

The tariff for this offence is a term of imprisonment not exceeding 21 years. The limitation period is 25 years, cf. Section 67 of the Norwegian General Civil Penal Code (Attachment 7).

The background to the case – reasonable grounds for suspicion:

On Thursday, 25 September 2008 at approximately 5 pm, the Lithuanian national Michail Oleinik, date of birth 24 July 1981, was stopped by the police in the city centre of Stavanger, Norway. Following a further examination of the vehicle he used when driving to Stavanger, 4.9kg of methamphetamine were found hidden in a “made up” room in the petrol tank of the car.

Prior to the trip to Norway, the car, an Audi 80 sedan with registration number ECT 799, had been registered in the name of Michail Oleinik in Klaipeda in Lithuania. Michail Oleinik drove to Norway from Klaipeda in Lithuania on Tuesday 23 September 2008 via Sweden. On Wednesday 24 September just before 4 pm, he drove to Norway via the Ørje customs station, which is a frontier post between Norway and Sweden. Thereafter, he drove more or less straight to Stavanger, and arrived in Stavanger the evening or night before Thursday 25 September 2008.

Along the way, after crossing the Norwegian border, Michail Oleinik received two SMS messages from Maksim Popov in Klaipeda in Lithuania, containing a telephone number (+xx xxxxxxxx), which he was to call when he arrived in Stavanger. It did not appear from the SMS messages who was operating this telephone number, but it was clear that it was the person who was responsible for meeting Michail Oleinik and receiving the drugs. This was the only point of contact Oleinik had to go by before he came to Stavanger. During the taking of evidence in Lithuania, Maksim Popov admitted to the Norwegian prosecution authorities that he was one of the people behind the transporting of the drugs. Popov has been arrested and is being prosecuted for the offence in Lithuania.

After his arrival in Stavanger, Michail Oleinik repeatedly attempted to call the telephone number he had been given, but failed to make contact as he entered the +47 before the mobile number (the Norwegian country code for calls from abroad), and as a result of this, he unintentionally dialled a children’s day nursery in Trøndelag, Norway. Michail Oleinik was apprehended by the police before he was able to establish contact with the recipient and hand over the drugs.

As far as the basis for suspicion against Renaldas Pocevicius is concerned, police investigations have found that the telephone number +xx xxxxxxxx was established by Renaldas Pocevicius at a petrol station in Klepp, Norway, on 22 August 2008. Renaldas Pocevicius used his own driver’s licence (drivers licence number xxxxxxxx) as a means of identification in connection with the establishment of this [telephone] number. The arrangement and procedure appears to be typical for this type of import where a courier is used to bring the drugs into the country, who subsequently contacts a recipient who he necessarily does not know. The fact that new cash cards / mobile telephones are used also appears as typical in order to keep the activity as concealed from the police as possible. The same applies to the courier not knowing which telephone number to contact in order to reach the recipient of the drugs until after he had passed the frontier post.

In the opinion of the Norwegian prosecution authority, these matters indicate that a direct link exists between the supplier element represented by Maksim Popov, and Renaldas Pocevicius, who was supposed to receive the drugs in Stavanger.

Renaldas Pocevicius arrived in Stavanger on 21 August 2008 and returned to Ireland a few days after the arrest of Michail Oleinik. After the arrest of Michail Oleinik, it was decided to initiate telephone interception of Renaldas Pocevicius’ mobile telephone number (xxxxxxxx). The telephone interception revealed that it was Renaldas Pocevicius who was using the telephone number at the time in question. There was activity on this number up until 27 August 2008, which corresponds to his leaving Norway to return to Ireland. In the opinion of the prosecution authority, the fret that the suspect Renaldas Pocevicius arrived in Norway immediately prior to the import and left the country immediately after the arrest, supports the grounds for suspicion.

Renaldas Pocevicius stayed with Dainius Perminas, Markveien 1, Klepp (approximately 20km south of Stavanger) while he was in Norway. Dainius Perminas was subsequently arrested, remanded in custody and indicted on charges of conducting another import of approximately 10kg of methamphetamine from Lithuania to Norway.

******
By an order issued on 25 November 2008, Stavanger District Court found that the conditions for arresting the suspect were present, cf. Attachment 2. Stavanger District Court subsequently extended the arrest warrant by an order issued on 12 January 2010 (see Attachment 3) and by order issued on 1 September 2010 (Attachment 9).
An international wanted notice/Schengen territory wanted notice was issued on 28 November 2008 for the suspect Renaldas Pocevicius.

It should also be noted that the suspect Renaldas Pocevicius was deported from Norway in 2002 due to criminal offences.

******
As a consequence of the discovery made in his car, Michail Oleinik was arrested and remanded in custody. On September 2009, Stavanger District Court sentenced Oleinik for offences contrary to Section 162(1) cf. subsection 3, first sentence of the Norwegian General Civil Penal Code to a term of imprisonment of 4 years and 6 months. Michail Oleinik appealed the sentence to the Gulating Court of Appeal, which on 10 February 2010 sentenced him to a term of imprisonment of 3 years for offences contrary to Section 162(1) cf. subsection 2, first sentence of the Norwegian General Civil Penal Code. The judgment is now final and legally enforceable and Oleinik is currently serving his sentence in a Norwegian prison.
In 2009, the Norwegian police have taken evidence from several persons in Lithuania, including Lithuanian national Maksim Popov, who stated that he was one of the people behind the transporting of the drugs.

******
In respect of the question about the personal details of the suspect, reference is made to Attachment 4. In some of the Attachments and previous correspondence, the suspect’s name has occasionally been misspelled.
A separate report has been prepared of the SMS contact between Michail Oleinik and Maksim Popov (see Attachment 5).

Kripos, which is the Norwegian body that undertakes analyses of all drugs, has explained the difference between the narcotic substances methamphetamine and amphetamine (see Attachment 6).

It can also be confirmed that, at the time of the import, the offence was and continues to be a criminal offence under Section 162 of the Norwegian General Civil Penal Code.”

The narrative above apparently misstated a date and this was corrected by means of additional information from the Rogaland Public Prosecution Service dated the 8th May, 2012, which asserted:
“In the Rogatory Commission of 7 July 2010, the date of the termination of the interception of communications of subscription no. +xx xx xx xx xx, Renaldas Pocevicius, was stated as 27 August 2008.
The correct date is 27 September 2008.”

The following attachments, all of which have been scrutinised and considered by this Court, accompanied the request:
“Attachments:
….

2. Charge sheet 18 November 2008

3. Arrest Warrant issued by Stavanger District Court 25 November 2008

4. Arrest Warrant issued by Stavanger District Court 12 January 2008

5. Overview of Renaldas Pocevicious’ personal details

6. Report concerning the SMS contact between Michail Oleinik and Maksim Popov

7. Report from Kripos (National Bureau of Crime Investigation) on methamphetamine

8. Extract from Sections 162 and 67 of the Norwegian General Civil Penal Code

9. Extract from Sections 171 – 175 of the Norwegian Criminal Procedure Act

10. Stavanger District Court’s arrest warrant 1 September 2010

….”

Points of Objection
The respondent objects to his proposed extradition on the following basis:
“1. The warrant for the arrest of the respondent was not issued for the purpose of his prosecution. Rather it would appear to have been issued for the purpose of bringing him before the relevant police authority. In the circumstances the warrant has been issued for the purposes of investigation rather than prosecution. As such his surrender would not be for the purpose of proceedings for an offence within the meaning of Section 9 of the Extradition Act, 1965 as amended.
2. The fact that the warrant was issued for the purpose of investigation is underlined by the failure of the requesting state to furnish the information required by Article 12(2)(b) of the European Convention on Extradition, 1957 and Section 25(b) of the Extradition Act, 1965. In particular the warrant fails to recite where the alleged offence took place. In the circumstances, and having regard to cogent evidence to the effect that the respondent was in Ireland at the time of the alleged offence it is pleaded that the absence of such information in the warrant renders same defective and as such surrender ought be refused. In the alternative it is pleaded that the surrender of the respondent is precluded by reason of Section 15 of the said Act.

3. The warrant on foot of which surrender is sought is not immediately enforceable and as such surrender ought be refused.

4. Having regard to the primary purpose of the warrant issued by the requesting state, namely for the purpose of seeking the return of the respondent for the purpose of questioning, the respondent hereby notifies his willingness to be interviewed by the Norwegian Police and to co-operate in the exercise of any mutual legal assistance procedures considered appropriate by the requesting state. In the premises the surrender of the respondent for a like purpose would be entirely disproportionate and would amount to a breach of his rights pursuant to the Constitution.

5. The requesting state has delayed unduly in seeking the surrender of the respondent or of notifying the respondent of the existence of allegations of serious criminal offences against him. The respondent was not present in the requesting state and would, in the normal course of events, have been in a position to adduce cogent alibi evidence in relation to the alleged offence the subject of these proceedings. The delay on the part of the requesting state in seeking the surrender of the respondent has irremediably prejudiced the respondent in seeking out and preserving such evidence. As such it would amount to a breach of the respondent’s constitutional right to a fair trial were he to be surrendered.”

The Order of Stavanger District Court for the respondent’s arrest
As there is an issue in the case concerning the purpose for which the respondent’s extradition is being sought, it may be helpful to recite the terms of the order of Stavanger District Court dated the 12th January, 2010, which, as stated earlier, has been renewed and continued from time to time. The order of the 12th January, 2010, was in the following terms:

“COURT ORDER
The Rogaland Chief of Police, represented by Police Inspector Pål Jaeger-Pedersen, has by transfer letter dated 10 January 2010 transferred the case to Stavanger District Court, requesting that the warrant for the arrest of Lithuanian national Renaldas Pocevicius, date of birth 7 February 1973, be maintained pursuant to Section 175(2) Nos. 1 and 2 of the Norwegian Criminal Procedure Act, in that, on 18 November 2008, he was charged with offences contrary to Section 162(1), cf. subsection 3, first sentence of the Norwegian General Civil Penal Code, in that, on Thursday 25 September 2008, he imported approximately 5kg of methamphetamine to Norway from Lithuania.
It has been stated that the suspect is of no fixed abode and that he is most probably residing abroad. The prosecution authority intends to issue an international wanted notice with a view to his arrest and extradition. The Rogaland Prosecution Service supports this course of action. The suspect was deported from Norway in 2002. He arrived at Stavanger Airport Sola on 21 August 2008. Further information concerning these facts is provided in the police reports, included in doc. 02.

There are reasonable grounds for suspecting the charged person of having committed offences contrary to Section 162(1), cf. subsection 3, first sentence of the General Civil Penal Code, as described in the grounds for the charge. Reference is also made to the charge against Michail Oleinik. In particular, the court refers to the information provided in Doc. Nos. 02 and 10. The confiscated material is identified as consisting of 4,99l g of a methamphetamine sulphate containing composition of substances. The methamphetamine sulphate content is determined at 40% on average. Methamphetamine is included on the list of narcotics.

There are clear reasons to fear that the suspect will seek to avoid prosecution, cf. Section 171(1) of the Norwegian Criminal Procedure Act. There is also a very real possibility that he will destroy evidence in the case, cf. Section 171(1) No. 2 of the Criminal Procedure Act. The petition is sustained. A wanted notice issued in the Schengen area and an arrest with a view to his extradition are clearly not disproportionate interventions given the serious nature of the case and the information provided about the suspect This order remains in force until 1 September 2010.

CONCLUSION
Renaldas Pocevicius, date of birth 7 February 1973, Lithuanian national, may continue to be wanted by the police with a view to his arrest and extradition, and prosecution in Norway. This order remains in force until 1 September 2010.”
Various provisions of the Norwegian General Civil Penal Code, and also of the Norwegian Civil Procedure Act are referred to in the said order, and it is also appropriate to set them out for a full understanding of the import of the order of the 12th January, 2010.
There is a reference to section 162 of the Norwegian General Civil Penal Code and it provides:

“Section 162. Any person who unlawfully manufactures, imports, exports, acquires, stores, sends or conveys any substance that pursuant to statutory provision is deemed to be a drug shall be guilty of a drug felony and liable to fines or imprisonment for a term not exceeding two years.
An aggravated drug felony shall be punishable by imprisonment for a term not exceeding 10 years. In deciding whether the offence is aggravated particular importance shall be attached to what sort of substance is involved, its quantity, and the nature of the offence.

If a very considerable quantity is involved in the offence, the penalty shall be imprisonment for a term of not less than three years and not exceeding 15 years. Under especially aggravating circumstances a sentence of imprisonment for a term not exceeding 21 years may be imposed.

A drug felony committed negligently shall be punishable by fines or imprisonment for a term not exceeding two years.

Any person who aids and abets a drug felony shall be liable to the same penalty. Fines may be imposed in addition to imprisonment.”

There are also references in the Court’s Order to sections 171 and 175 respectively of the Norwegian Criminal Procedure Act, and these are in the following terms:
“§ 171. Any person who with just cause is suspected of one or more acts punishable pursuant to statute with imprisonment for a term exceeding 6 months, may be arrested when:

1) there is reason to fear that he will evade prosecution or the execution of a sentence or other precautions,
2) there is an immediate risk that he will interfere with any evidence in the case, e.g. by removing clues or influencing witnesses or accomplices,

3) it is deemed to be necessary in order to prevent him from again committing a criminal act punishable by imprisonment for a term exceeding 6 months,

4) he himself requests it for reasons that are found to be satisfactory.

When proceedings relating to preventive supervision have been instituted, or it is probable that such proceedings will be instituted, an arrest may be made regardless of whether a penalty may be imposed, as long as the conditions in the first paragraph are otherwise fulfilled. The same applies when a judgement in favour of preventive supervision has been pronounced or the question of extending the maximum period for preventive supervision arises.”
“§ 175. A decision to arrest is made by the prosecuting authority. The decision shall be in writing and shall contain a description of the suspect, a short account of the criminal act, and the reason for the arrest. If delay entails any risk, the decision may be made orally, but shall then be written down as soon as possible.

A decision to arrest may be made by the court if the suspect is staying abroad and the prosecuting authority wishes to apply for his extradition, or if the circumstances otherwise so indicate.

The decision shall be executed by the police or by some person who has been so requested by the prosecuting authority.”

Correspondence and minimum gravity
The relevant statutory provisions as those contained within s. 10 of the Act of 1965 as amended by s. 11 of the Extradition (European Union Conventions) Act 2001. Counsel for the applicant has invited the Court to find correspondence with the offence in Irish law of possession of a controlled drug contrary to s. 3 of the Misuse of Drugs Act 1977 on the basis that it is clearly alleged that the respondent had control over the drug in question at the material time. It was also suggested that, having regard to the quantity involved, the Court could also readily find correspondence with an offence of possession of a controlled drug for sale or supply contrary to s. 15 of the Misuse of Drugs Act 1977. The suggested correspondences were not challenged by counsel for the respondent who confirmed that he was “raising no issue on correspondence”. The Court, having considered the totality of the information placed before it by the applicant, and the provisions of s. 10(3) of the Act of 1965 as amended, is satisfied to find correspondence with the offence in Irish law of possession of a controlled drug contrary to s. 3 of the Misuse of Drugs Act 1977, and also with the offence of possession of a controlled drug for sale or supply contrary to s. 15 of the Misuse of Drugs Act 1977 (though this second finding is superfluous in circumstances where correspondence with any one offence will suffice).
In so far as minimum gravity is concerned, there was again no controversy. The offences charged under Norwegian law carry a potential penalty of imprisonment for up to twenty one years, and the corresponding offences under Irish law, namely, possession of a controlled drug contrary to s. 3 of the Misuse of Drugs Act 1977, or possession of a controlled drug for sale or supply contrary to s. 15 of the Misuse of Drugs Act 1977, carry potential penalties of up to seven years imprisonment, and fifteen years imprisonment, respectively. In those circumstances it can be stated that the minimum gravity requirements of s. 10 of the Act of 1965 are comfortably met.
Principal evidence adduced on behalf of the respondent
The respondent sought to rely in the first instance upon an affidavit sworn by his solicitor, a Ms. Patricia Byrne, on the 3rd May, 2012, and the documents therein exhibited. One of those documents was a letter from a Norwegian lawyer expressing an opinion as to how Norwegian law would apply to the respondent in the circumstances of the case. The applicant objected to the respondent adducing evidence in that way, and insisted that the respondent himself ought to have deposed to the matters contained in Ms. Byrne’s affidavit, and that in so far as the letter from the Norwegian lawyer was concerned it was a mere exhibit and there was no evidence as to the truth of its contents. It was suggested that if the respondent wanted to put evidence as to how Norwegian law would apply in the circumstances of the applicant’s case it was incumbent upon him to put an affidavit from a Norwegian lawyer before the Court.

In the Court’s view the objections raised were valid ones. First of all, under the procedure initially adopted the respondent had in effect insulated himself against possible cross-examination as to key matters of fact. Secondly, the solicitor’s affidavit was, as a result of being based in large measure on instructions that she had received from her client as to matters of fact, predominantly hearsay. In circumstances where Ms. Byrne’s affidavit was predominantly hearsay it contravened the rules relating to affidavits as contained in the Rules of the Superior Courts 1985-2013 and the applicant was entitled to object to its admissibility on that account. Moreover, even if Ms. Byrne’s affidavit had not been objected to, the Court would be disinclined to attach much weight to the evidence of a deponent testifying through his solicitor as to controversial matters of fact where he was not prepared to subject himself to at least the possibility of being cross-examined. Thirdly, the applicant was correct in asserting that merely exhibiting the letter from the Norwegian lawyer serves only to prove that such a letter exists, it does not prove the truth of its contents. What was required if the respondent wished to put before the Court opinion evidence as to Norwegian law, and/or the application of that law, was sworn testimony from a properly credentialed expert in Norwegian law. The letter exhibited in the manner in which it was exhibited by Ms. Byrne was not evidence on which the Court could act.

Having indicated the legal approach the Court would adopt if required to formally rule on these issues, the respondent requested to be allowed to proceed de bene esse on the basis that they might not ultimately trouble the Court, and the Court acceded to this.

It indeed proved unnecessary for the Court to make a formal ruling as to the admissibility of Ms. Byrne’s affidavit in the following circumstances. The case did not in fact finish on the first day of hearing and in the circumstances it was adjourned part heard to a later date to be resumed and concluded. During the adjournment, the respondent swore an affidavit himself covering the ground that was contained in his solicitor’s affidavit. The respondent’s own affidavit was then filed with the leave of the Court rendering it unnecessary for the Court to formally rule Ms. Byrne’s affidavit inadmissible on the grounds of hearsay.

In so far as the Norwegian lawyer’s letter was concerned it subsequently emerged that the respondent was unable to secure an affidavit from the said lawyer in circumstances that are described in a supplementary affidavit of Ms. Byrne and which are not relevant to the central issue.

The respondent’s affidavit was sworn by him on the 11th September, 2012, and in it he deposes to the following:

3. I say that I am a Lithuanian national presently unemployed and residing with my partner and 3 children at Clogheen Cross, Clogheen, Clonakilty, County Cork. My children are aged 11 years, 3 years, and 1 years. The two youngest were born in Ireland. My partner and I like Ireland and made a decision to reside in Cork to raise and educate our children. Ireland is now our home and I am concerned for my family if I am extradited to Norway. I say that lama printer by trade and was employed as a printer until 2008. Due to the economic circumstances in Ireland I lost my job at Walsh Printers, Bridge House, Rossa Street, Clonakilty, County Cork. I have been unsuccessful in getting employment and this situation has been aggravated since my arrest. I find it difficult to approach employers now because of these proceedings and my frequent attendance at the High Court in Dublin.
4. I say that I was arrested on the 17 September 2011 on foot of a Warrant issued by the High Court in these proceedings dated the 14th of September, 2011. I say that this was the first notice I had of an intention to charge me with the offence the subject of the application herein. I say that I was remanded in custody with consent to bail to Cloverhill Prison and that I have taken up bail.

5. I beg to refer to the papers comprised the request for extradition for Renaldas Pocevicius when produced.

6. I say and believe that a charge sheet dated the 18th November 2008 appears to have been prepared by the Norwegian Police. The charge alleged that I unlawfully imported approximately 5 kg of Methamphetamine to Norway from Lithuania on Thursday the 25 September 2008. I say that it appears that it is alleged that the I (sic.) participated in the said offence by way of joint enterprise with another person who appears to have been arrested in Norway in possession of the said drugs on that date having entered Norway on the 24th of September, 2008; and that I entered Stavanger in Norway on the 21st of August, 2008 and left Norway “a few days after” the date of that arrest.

7. I say that I deny the alleged offence. I say and believe that it appears that a warrant was issued in Norway for my arrest and that this warrant was renewed or re-issued on a number of occasions. I say and believe that it appears that a previous request for my extradition was not pursued since the authorities of this State indicated that certain steps should be taken by the Norwegian authorities before an extradition request could be pursued properly.

8. I say that that I was in Norway in September 2008 but left Norway on the 21st of September, 2008 on a flight from Stavanger to Copenhagen from where I flew to Dublin on the same date. In this regard I beg to refer to my Visa credit card statement which indicates that the I paid for a flight on the 20th of September, 2008 upon which marked with the letter “A” I have signed my name prior to the swearing hereof.

9. In this regard further I beg to refer to a copy of a letter which has been furnished to me and which appears to be signed by Ms Cathy Robert, Customer Service Executive of SAS Scandinavian Airlines which appears to indicate that the I (sic.) booked and flew on the said flights, upon which marked with the letter “B” I have signed my name prior to the swearing hereof.

10. I say that I paid for a train ticket in Ireland, for myself on the 21st of September, 2008 by using my Visa card to pay Iarnrod Eireann and in this regard I beg to refer to exhibit “A” referred to above.

11. I say that the I signed at the Social Welfare office in Clonakilty on the 24th September 2008. In this regard I beg to refer to a copy of a handwritten document from the Social Welfare Branch Office dated the 22nd September 2011 and upon which and marked with the letter “C” I have signed my name prior to swearing hereof.

12.1 say that I have been advised to, and I have been instructed to a) seek further evidence to establish that I was not in Norway at the time when it is alleged that I participated in the said offence; and b) seek to ascertain whether further, and perhaps definitive evidence to support my assertions is not now available but would have been available to me had I been charged earlier. In this regard I am particularly concerned as to the real possibility that CCTV or security images from various airports might have been of crucial assistance to me.

13. I say and believe that it appears likely that having regard to the passage of time between the date of the alleged offence and this application for my extradition, potentially exculpatory evidence has been lost or destroyed following a delay in initiating these proceedings; and that arising from this there is a real risk that I cannot receive a fair trial in Norway on the said charge.

14. In this regard, I say that I have been advised by counsel that the opinion of a Norwegian lawyer is necessary as to the question of whether the Norwegian legal system permits what is regarded in this jurisdiction as a sufficient remedy to protect minimum constitutionally protected fair trial rights.

15. I say that my Solicitor has been in contact with Ms. Maren Ostend a Norwegian lawyer who has given her opinion on this matter. I beg to refer to a copy of the opinion dated the 27th March 2012 and upon which and marked with the letter “D” I have signed my name prior to swearing hereof.

16. I say that it appears from the said opinion that there is no comparable remedy under Norwegian law where missing evidence arising from delay might result in a not guilty verdict by direction or prohibition.

17. I say that correspondence from Scandinavian airlines indicates that I flew on the 21st September 2008 from Stavanger to Copenhagen and Copenhagen to Dublin. My ticket number is 117-2336348838 and flight numbers are SK1871 and SK0537.

18. I say that my Solicitor sent an email on the 20th of April 2012 to the Manager of Access Control and Security Systems at Dublin Airport wherein she sought delivery of copies of CCTV footage for the period 21st September 2008 and 22nd September 2008. I say that via an email in reply Mr Vincent McGrath for Dublin Airport advised that no such footage was now in existence. I beg to refer to a copy of the emailed correspondence to Dublin Airport and from Dublin Airport dated 20th April 2012 and marked with the letter “E” I have signed my name prior to the swearing hereof.

19. I say that my Solicitor sent emails on the 20th of April 2012 to Copenhagen Airport and Stavanger Airport seeking delivery of copies of CCTV footage for the period 21st September 2008 and 22nd September 2008. By an email dated 23rd April 2012 the Security Manager at Stavanger Airport replied to say that the footage for the period requested was not available. I beg to refer to a copy of the emailed correspondence to Copenhagen Airport and Stavanger Airport dated 20th April 2012 together with the email in reply dated 23rd April 2012 and marked with the letter “F” I have signed my name prior to the swearing hereof.

20. I say that my Solicitor sent an email on the 27th of April 2012 to the Danish Police seeking the availability of copies of CCTV footage for the period 21st September 2008 and 22nd September 2008 for Copenhagen Airport. My Solicitor further enquired if CCTV footage for that period was no longer available, whether it had been destroyed and the length of time CCTV footage is retained. My Solicitor has not received a reply to this enquiry. I beg to refer to a copy of the emailed correspondence to the Danish Police dated 27th of April 2012 and marked with the letter “G” I have signed my name prior to the swearing hereof.

21. I say that having regard to the primary purpose of the warrant issued by the requesting state, namely for the purpose of seeking my return to Norway for the purpose of questioning, I am willing to be interviewed in Ireland by the Norwegian Police and to co-operate in the exercise of any mutual legal assistance procedures considered appropriate by the requesting state.

22. I say that I will suffer significant adverse consequences if I am surrendered to Norway. Firstly, I will face a deprivation of my right to liberty. Further, I believe I will be kept in custody during the investigation, as I do not have any address in Norway at which to stay or use for bail purposes. Secondly, my right to private and family life will be disproportionately infringed as all of my family are now based in Ireland.”

The Court has carefully scrutinised and considered the documents exhibited “A” to “G”, respectively, with the respondent’s said affidavit. Although extradition proceedings are civil proceedings and not criminal proceedings and, being neither fully adversarial nor fully inquisitorial in character are sui generis, it is generally considered that the rules of evidence apply save where legislation expressly provides otherwise. That of course begs the question as to whether the applicable rules of evidence are those appropriate to criminal proceedings or civil proceedings.
Guidance in regard to this in is to be found in Minister for Justice, Equality and Law Reform v Sliczynski [2008] IESC 73 (Unreported Supreme Court, the 19th December, 2008). In that regard, the following passages are contained witin the judgment of Murray C.J. (as he then was):

“Counsel for the appellant properly acknowledged that extradition proceedings are neither strictly criminal nor civil in nature but the ordinary rules of evidence apply. It was submitted, citing Minister for Justice, Equality & Law Reform –v- Abimbola [2006] IEHC 325 which in turn relied on R (Levin) -v- Governor of Brixton Prison [1997] AC 741 that while not strictly criminal proceedings, in extradition matters criminal procedure and rules of evidence should apply. Suffice it to say that the latter case, the United Kingdom case, referred to a particular form of extradition proceedings in the context of arrangements for extradition between the United Kingdom and the United States which involved a wholly different procedure for extradition than that which arises under the system of surrender provided for in the Act of 2003 as amended. Section 10 of the Act of 2003 provides “Where a Judicial Authority in an issuing State duly issues a European Arrest Warrant in respect of a person …that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision be arrested and surrendered to the issuing State.” For the purpose of making an Order pursuant to s. 10 the trial Judge has to be satisfied that the requirements of the Act, and where specified, the Framework Decision, have been complied with. Once so satisfied he or she is bound to make the Order for surrender.
As I pointed out in Attorney General –v- Park (Unreported) Supreme Court 6th December 2004 which concerned extradition under the Act of 1965, as amended, “The burden of proof of facts which may rest on the applicant in these proceedings is not that of a criminal trial. I hasten to add that the learned High Court Judge did not approach this matter on such a basis and it is just that I consider it appropriate at this point to distinguish between extradition proceedings and other forms of proceedings, criminal and civil. An extradition proceeding pursuant to the relevant Acts has its own special features which in a certain sense makes it sui generis.” Later in the judgment it was stated “The role of the requested State, indeed its duty, is to give effect to a lawful request from a requesting State once it is determined that the request fulfils the criteria laid down by the relevant legislation …. The responsibility for bringing a person named in a warrant before the High Court clearly rests with authorities in the State. Once that is done the task in determining whether all legal requirements for the making of an Order pursuant to s. 47 are fulfilled rests with the High Court Judge. That is an inherently inquisitorial function.” It seems to me that the same considerations apply to applications for surrender pursuant to the Act of 2003 and indeed s. 20 of the Act, as cited above, highlights the inquisitorial dimension of the proceedings. The rules of evidence which apply are not those of a criminal trial. In carrying out its function as aforesaid the Court ensures that no one in this jurisdiction shall be surrendered pursuant to the Act unless the Court is satisfied that all criteria laid down by the Act and, where specified, in the Framework Decision, have been satisfied and that there is no other lawful bar to the making of the Order.”

This Court’s understanding of the law, on the basis of this quotation, is that the rules of evidence do apply, but they are not those of a criminal trial. In many instances the same rules of evidence are applicable in both criminal and civil proceedings. However, if with respect to any particular rule of evidence that is not the case, then it is the rule as applicable to civil proceedings that must be applied. Any rule of evidence that is intended to apply solely in criminal proceedings, or that operates more restrictively in criminal proceedings, is not to be applied in an extradition case.
All of that being said, it seems to me that for the purposes of the present case the rule against hearsay applies in the same way in both civil and criminal proceedings. It might be more strictly relied applied in criminal proceedings but that is not the same thing as saying that it operates differently. It doesn’t. Furthermore, the rules relating to whether a document may be relied upon as real evidence, or as original evidence, or as testimonial evidence are also the same in both types of proceedings.

The strict legal position in terms of proper application of the rules of evidence to exhibit D, i.e., the letter (described in the affidavit as “the opinion”) of the Norwegian lawyer, Ms. Maren Ostend, remains as I have indicated above. It is admissible as a piece of real or original evidence. However, it’s contents are not testimonial. By exhibiting it in the manner in which it has been exhibited, no more is established than the fact that there is in existence a document that purports to contain the opinion(s) of a Ms. Maren Ostend who claims to be a lawyer expert in Norwegian law. It establishes nothing with respect to the truth or otherwise of the document’s contents. The applicant is not objecting to its admissibility as such, because being an exhibit it is admissible (for what it is worth) as real or original evidence. It does not fall foul of the hearsay rule in that context, rather it speaks for itself in terms of proving its existence and obvious physical characteristics. However, in circumstances where the applicant correctly identifies that the exhibit in question is not legally testimonial, and strenuously objects to the Court having any regard to its contents, the Court must apply the rules of evidence and decline to treat the contents of the said exhibit as having testimonial value.

As it subsequently transpired, the ruling out of the content of Ms. Ostend’s opinion on the grounds just indicated is rendered somewhat academic in the following circumstances. The applicant at a relatively late stage of the case, and in response to a request from the Court, adduced additional information before the Court concerning Norwegian criminal law and procedure. Counsel for the respondent subsequently stated that this was consistent with the evidence that he had wished to adduce from his expert.
Additional evidence adduced on behalf of the applicant.
The applicant has put forward as additional information an unsworn document dated the 19th April, 2012, in which the Rogaland Public Prosecution Service purports to comment upon what is stated in the affidavit of Ms. Byrne previously mentioned in this judgment. As the respondent subsequently repeated the contents of Ms. Byrne’s said affidavit in his own affidavit the commentary offered can be regarded as applying equally to that. The Court would not have been prepared to receive this additional information in unsworn form but for the fact that counsel for the respondent indicated that, not only was he not objecting to its introduction, he was most desirous that the Court would receive it and take account of it. The additional information states:

“We have not had any previous information that Pocevicius is said to have left Norway on 21 September 2008 and that he stayed in Ireland for a few days. Basically, we assume that Pocevicius left Norway for Ireland as stated.
This provides two alternative chains of events. One is that Pocevicius left Norway on 21 September 2008 and never returned, and the other is that he may have returned to Norway after a few days.

Michael Oleinik and Maksim Popov have never given the names of those who were to receive the drugs or who were to meet Oleinik on behalf of the recipients to take over the car with the drugs. Pocevicius may have accomplices to handle the actual receipt of the drugs. These may have been given the mobile telephone subscription that both Oleinik and Popov have stated that Oleinik was going to use to contact the recipient / the recipient’s accomplices with. But even if he was in Ireland (or at other places), Pocevicius would have been able to receive calls (spoken or text messages) via this subscription with which he would have been able to communicate with his accomplices.

Due to the information provided by Advocate Byrne’s affidavit, we have reviewed the other information in the case. According to the traffic data of number +xx xx xx xx xx (which was established by and registered to Pocevicius) there is a gap between 21 September 2008 at 02.00 (when Pocevicius states that he left Norway) and 25 September 2008 at 00.47 (the night before the carrier was apprehended with the drugs). Only calls on the Norwegian network have been registered. This information is consistent with Pocevicius having left Norway, which he also claims to have done, but that he returned to Norway a few days afterwards and was in Norway on 25 September 2008 when Oleinik was apprehended and the drugs seized.

Investigations have been made with airlines etc. as to whether it is now possible to find Pocevicius on passenger lists that prove / disprove that he has returned to Norway. It is difficult at this time to obtain definite information about this. We are not certain as to how he has travelled back to Norway (by air, boat, train, car or by combinations of these). There are grounds for believing that parts of the journey (perhaps the entire journey, but also including ferries) took place by car. This is because the police (after Oleinik was apprehended and the police found out about this subscription) tapped this mobile phone subscription +xx xx xx xx xx and it appears inter alia that on 27 September 2008 at 20.23, a person who we assume to be Pocevicius spoke with an unidentified woman and says, among other things: “All right, I got lost. I had to drive more than 1000 kilometres.” Later during the same call he says: “All right, but you know that when I drove to England I was caught in a check at once. The car was dismantled.” Later in the same conversation he states that the police found nothing and that he arrived two hours late due to this check. He goes on to say that “it is raining here in Norway”.

This telephone call indicates that, before 27 September 2008, Pocevicius has had an extensive car journey of more than 1000 kilometres, a journey that included England. It is likely that he has driven from Ireland to Norway. The information about weather conditions (“here in Norway”) confirms that, at the time of making the call, he was in Norway, which is also confirmed by the base station for this call.

On the basis of the above, there are grounds for assuming that Pocevicius has returned to Norway and was on the Norwegian cell phone network on 25 September at 00.47 am and that he certainly was in Norway on 28 September 2008 at 15.15 (last telephone call on no. +xx xx xx xx.xx, through a base station in Norway).

Advocate Byrne referred to printouts from a Visa credit card account belonging to Pocevicius, which indicates movements in Ireland on 21 September 2008. The enclosed printout extends to 23 September 2008 and is marked as page 1 of 2. 1 assume that there is no use of this credit card during the period between 24 and 28 September 2008, which is a more interesting period, as in that event it would have been enclosed with the affidavit.

Furthermore, a copy has been presented of a handwritten document dated 22 September 2011 from The Social Welfare Branch Office, confirming that Pocevicius “signed on in this office on 24 September 2008”. It is fully possible to be in contact with an office in Irland (sic) on 24 September 2008 and thereafter be within the Norwegian borders at 00.47 on the following day. On the other hand, in Norway we would hardly accept a handwritten letter as evidence in this event as it is highly unusual for public authorities to issue certificates in this manner. We cannot be certain that the letter is genuine or not forged in cases of this nature. It is a simple matter to change or remove a digit in a date or make similar undesired changes to the document.

I see from the mail dated 22 March 2012 that our Irish cooperating partners have made an attempt to further clarify this matter, but the reply from the Social Welfare Department hardly confirms that Pocevicius has met up at this office on 24 September 2008. On the other hand, the above office confirms that Pocevicius “signed on… in person” on the 27 August 2008. We find this interesting. Pocevicius arrived in Norway on 20 August 2008 and was checked by the customs service on arrival. On 22 August 2008, he bought the mobile telephone subscription +xx xx xx xx xx at Klepp (presenting his driver’s licence as documentary proof of identity). On 23 August 2008, this subscription is used several times. The next call is on 27 September 2008 at 20.22. According to Dairius Perminas, Pocevicius lived with him during this period. Nonetheless, Perminas and his wife stayed in Oslo during the period 25 to 29 August 2008 due to hospital treatment of a seriously sick child and are therefore unable personally to confirm where Perminas (sic.) was during these days. But if Pocevicius had “signed on” with the Social Welfare Department on 27 August 2008 and thereafter been in Norway on the same day at 20.22, he may without problems have done the same on 24 September 2008 and been in Norway on the following day at 00.47.

It is also noted that, despite Pocevicius having been in Norway from 20 August 2008 to 28 September 2008 (he claims that he returned on 21 September 2008), he has made no transactions that would have been registered in the Norwegian foreign currency register (for example used his Visa card in his name, exchanged currency). The only explanation must be that he used cash (NOK) throughout, or that he has credit cards issued in other peoples’ names. It is extraordinary that despite his extended stay in Norway, he leaves no such traces. This does not weaken the suspicion against him.”

The applicant also relies upon the following further details which are contained in the Supplement of the 7th June, 2012. That document states (inter alia):
“Correspondence has subsequently been exchanged in relation to the request for extradition. We have now received a mail dated 1 June 2012 in which the Irish authorities desire further clarification of a few questions. At the time of writing, the formal transfer from Ireland has not been received.
As regards the first question, the extradition is requested to enable Norwegian authorities to institute criminal proceedings against Renaldas Pocevicius and bring the case before the court. However, after his extradition Pocevicius will be able to make a statement to the police, and this statement will form a part of the total evidentiary basis when it is finally decided whether or not to file charges. Due to the degree of seriousness in this case (the quantity of the substance), the final decision relating to the question of prosecution will be made by the Director General of Public Prosecutions.

Regarding the question as to exactly where the crime took place, it is clearly stated in the charge sheet dated 18 November 2008 that it concerns import to Norway from Lithuania. Import means crossing the border during which the substance in this case was imported to Norway. Clearly, Norway has jurisdiction to prosecute the case as the crime was committed on Norwegian territory. The same applies to Lithuania (for the export) and Sweden (for the transport across Swedish territory). The actual transport from Lithuania was carried out by a courier. Renaldas Pocevicius is charged with complicity in the import as he did not in fact personally transport the substance during the import. This is because the substance was imported according to an agreement with Pocevicius and it is him the courier was told to contact over the telephone when he had crossed the Norwegian border, to enable the recipients to take possession of the substance. Under Norwegian law, an accomplice does not need to be at the place where the actual crime is being committed. It is quite common for those who pull the strings (those behind the crime) to stay away from the substance in order to avoid detection. Therefore, whether Renaldas Pocevicius was in Norway, Ireland or at another place when the courier crossed the border into Norway, and was to contact him via telephone at a later point in time, has no bearing on his liability as an accomplice in Norway.

The substance was imported into Norway on 25 September 2008. As previously stated, it can be proven that Renaldas Pocevicius was in Norway from the end of August 2008 to 28 September 2008. It is on the basis of information given by Pocevicius to Irish authorities we have reason to believe that he travelled to Ireland during this period, but that he returned to Norway. As his mobile telephone subscription has been used in Norway on 25 September 2008 at 47 minutes past midnight, and that all calls on this subscription terminated on 28 September 2008, we assume that Renaldas Pocevicius has been in Norway (in Stavanger or the adjacent area) during the days 25 – 28 September 2008, i.e. the period immediately before the substance was imported. In this connection, we note that the courier drove the substance to Stavanger, made several attempts at contacting Pocevicius on the stated telephone number (but failed as he kept dialling the Norwegian country code before the number), he was apprehended there and the substance was seized in the courier’s car in Stavanger.”

At the end of the first day of hearing of this case the Court expressed the view that the document just quoted from, far from clarifying the situation as to the respondent’s status in Norwegian law, created greater uncertainty. On the one hand it suggests that the respondent has not yet been charged in as much as it states “the extradition is requested to enable Norwegian authorities to institute criminal proceedings against Renaldas Pocevicius and bring the case before the court. However, after his extradition Pocevicius will be able to make a statement to the police, and this statement will form a part of the total evidentiary basis when it is finally decided whether or not to file charges. Due to the degree of seriousness in this case (the quantity of the substance), the final decision relating to the question of prosecution will be made by the Director General of Public Prosecutions.” On the other hand it refers to the “charge sheet dated 18 November 2008”, and expressly states that “Renaldas Pocevicius is charged with complicity in the import (etc. etc)”. It is therefore seemingly contradictory.
While the Court was readily prepared to accept that words such as “charge” and “charged” may have different meanings under Norwegian law to the meanings they have under Irish law, and that it would be wrong to view the statements made by Norwegian authorities through a lens polarised by Irish criminal law and procedure, the Court considered that it still needed to be able to understand precisely what is meant by those terms when used in the context of Norwegian criminal law and procedure. Regrettably, up to that point, there was no clear explanation as to what was meant. The Court therefore directed the applicant to obtain and file a comprehensive affidavit of laws, or equivalent attested or notarised document, from a Norwegian lawyer concerning those aspects of Norwegian criminal law and procedure with which this Court was concerned in the present case, and adjourned the matter part heard to a subsequent date to facilitate that.

When the case was resumed, counsel for the applicant sought to put before the Court a further supplement to the original Rogatory Commission, dated the 12th September, 2012, and duly notarised by a notary public on the 26th September, 2012, consisting of a statement as to Norwegian law by a Mr. Tormod Haugnes who is a Public Prosecutor in Rogaland County, Norway.

This further supplement (hereinafter the supplement of the 12th September, 2012) was transmitted to the Irish Department of Foreign Affairs by the Royal Norwegian Embassy, Dublin under cover of a letter dated the 1st October 2012, and was accompanied by a certificate dated the 26th September, 2012, from an acting Deputy Director General at the Norwegian Ministry of Justice, a Ms. Liv Christina Houck Egseth, who has certified that the supplement of the 12th September, 2012, and the documents accompanying it, should be considered as part of the documentation supporting the request, and that these documents “are issued by the competent Norwegian authorities, and duly certified by an Officer of State.” Counsel for the respondent confirmed that no issue was being taken as to the sufficiency of the authentication provided, and I am satisfied in any event that it is sufficient.

The supplement dated the 12th September, 2012, states:

“I. the undersigned Tormod Haugnes have worked as a prosecutor in criminal cases since 1986, initially as a police prosecutor and thereafter, from January 1990, as a public prosecutor in Rogaland County.
So far, the processing of the case has uncovered significant differences between the Irish and the Norwegian legal systems. These apply to the organisation of the public prosecution service, the actual criminal procedure and the rules governing the extradition of persons for prosecution in another country. My experience of sending extradition requests to several countries in Europe was not, therefore, effective as the Irish legal system and practice in this area differs somewhat from that of countries with which 1 have had similar cases previously. In this instance, this has led to misunderstandings, and to replies previously having been given not having been satisfactory in the eyes of the recipient country. With a correct knowledge of the requirements imposed by Ireland for extradition, it could with hindsight have been more appropriate to choose a different course, for example requesting at an early stage that Pocevicius be questioned by police and an indictment brought against him. In similar cases we have had with other countries in Europe, this is deferred until the charged person has been extradited.

I will start by giving a brief account of the structure of the [Norwegian] prosecution authority and who is competent to charge and/or indict persons for criminal offences. I believe this account will provide answers to the questions posed in the letter dated 8 August 2012.

The Norwegian prosecution system has three levels. At the top is the Director General of Public Prosecutions, followed by, at regional level, the regional public prosecution services (the level at which I am employed), and at the lowest level is the prosecuting authority in the police. It is particular to Norway that this lowest level prosecuting authority is also part of the police. The police prosecuting authority consists of graduate lawyers (not trained police officers). In everyday speech or writing, there is often no distinction drawn between the police prosecuting authority and ordinary police officers. For example, it is often said that the police have brought charges or an indictment against someone even though it is only the police prosecuting authority that is able to do this.

The duties of the police prosecuting authority comprise leading investigations, including giving orders to investigate, and it may charge persons with criminal offences by issuing arrest orders, orders for searches and ordering court appearances for remand hearings. It may also initiate investigations for the court (for example by requesting out-of-court judicial examinations of minors in sexual abuse cases) or by issuing charge documents against the person in question.

The police prosecuting authority may in less serious cases lay an information against an accused, issue fines in lieu of prosecution which the person in question may accept, or refer cases to the court for adjudication on the basis of a confession. They also attend court as prosecutors in respect of these cases. According to further rules, the police prosecuting authority may also discontinue prosecution in criminal cases, for example because they find the evidence insufficient to secure conviction.

The public prosecutors (the regional public prosecution services) receive the cases when they are fully investigated from the police prosecuting authority, complete with a recommendation for further action. The public prosecutors (and the Director General of Public Prosecutions) have no investigators of their own. but have the authority to order the police to undertake further investigations if considered necessary. The public prosecutors may bring indictments (with the exception of cases where the Director General of Public Prosecutions has the prosecuting competence) and themselves prosecute the most serious criminal cases before the courts, while other cases are returned to the police prosecuting authority for prosecution. If district court judgments are appealed to the Court of Appeal, the appeals are for the most part prosecuted by the public prosecutors, although a few of these cases are returned to the police prosecuting authority for prosecution. With a few exceptions that are handled by the Director General of Public Prosecutions, the public prosecutors prosecute appeal cases before the Norwegian Supreme Court.

The Director General of Public Prosecutions brings indictments in the most serious criminal cases following a recommendation by the public prosecutors. The office of the Director General of Public Prosecutions do not handle the cases themselves, apart from a few test cases before the Supreme Court.

The competence relating to which of these three levels of the prosecution service should decide the question of indictment is linked to the maximum sentence for the criminal offence that has been investigated. The higher the sentence, the higher the level where the decision as to the indictment in taken. Pocevicius is charged with the most serious degree of drugs offence, where the maximum sentence is 21 years’ imprisonment. All cases with a maximum sentence of 21 years shall be decided by the Director General of Public Prosecutions. It is for this reason that it is the Director General of Public Prosecutions who will take the final decision as to whether or not to indict Pocevicius for this criminal offence.

In Norway a distinction is made between a charge and an indictment. The decision to bring an indictment is a decision to bring the case before the court. A charge is a preliminary accusation during an investigation in connection with inter alia arrests, searches or other investigative steps. A charge also gives the suspect stronger procedural rights. As it is the police who investigate all criminal cases in Norway, it is also the police prosecuting authority which formally charges all suspects, regardless of the minimum or maximum sentence for the offence that he/she is suspected of having committed. When the investigation is considered to have been completed, the police prosecuting authority makes decisions relating to the prosecution either by discontinuing the case or by bringing an indictment where the police are competent to prosecute. Where the other cases are concerned, the police prosecuting authority makes a recommendation to the public prosecutors in respect of prosecution.

If the police prosecuting authority discontinues a case, the charged person has no claim for the case to be brought before the court to obtain an acquittal. A charged person whose case is discontinued by the police prosecuting authority is regarded as having been acquitted. A discontinued case may be appealed, for instance by the aggrieved party, to a superior prosecuting authority, or it may be reviewed later if new information becomes available. I see no reason to go into the rules governing this in any greater detail.

The police may investigate the case also after an indictment has been brought. Further investigative steps may also be taken after judgment has been passed, for example prior to an appeal hearing or during the main hearing due to information that has emerged during the accused person’s statement to the court. There is also nothing to prevent further investigations being conducted after the judgment is final and legally enforceable. Should the police receive information indicating that someone may have been unjustly convicted, the police shall naturally seek to clarify this. The police are obliged to act with objectivity from the start of an investigation and until the case is concluded, and shall attempt to uncover issues that are both in the accused person’s favour and disfavour, regardless of whether his procedural position is as a suspect, charged person, indicted person or convicted person.

When an indictment has been brought, it is forwarded to the court for the case to be listed. As previously stated, investigations may still be undertaken and an additional indictment may be brought for new offences that may be heard concurrently with the offences in the indictment. An indictment may be amended, replaced with a new indictment or also be withdrawn. The latter may also take place after the main hearing has started but not after judgment has been passed.

With specific reference to Pocevicius’s case, he has been charged by the police prosecuting authority with our most serious drugs offence. As we are seeking to extradite him from another country, the case was brought before the local district court, which issued an arrest order. Since the rogatory commission was brought by the public prosecutors, we have presented a provisional assessment that, on the basis of the existing evidence, grounds exist for issuing an indictment. This means that if no information subsequently emerges which would place the case in a different light, a request for extradition will have the clear intention of bringing the case before the court when the charged person has been extradited. However, as already mentioned, it is the Director General of Public Prosecutions who in a case like the present, has the competence to issue an indictment, which will not be done until the investigation of the case is considered to have been completed.

The investigation that remains in the present case is primarily to question the accused. Naturally, as a charged person in the case he is entitled to refuse to answer questions from the police and the court. Should he decide to make a statement, it may be relevant to undertake supplementary investigations in order to disprove or confirm his statement. For example, he has already told the Irish authorities that he was in Ireland on specific days during the period in question and substantiated this by means of statements from his Visa card account. For this reason, we request that statements be obtained for the above account for the entire period in question in order to see whether there were any movements on the said account to indicate his movements throughout this period. If corresponding information emerges in a potential police interview, we will seek to disprove or confirm this. Consequently, the investigation is not yet complete and no indictment has been issued.

Should Pocevicius elect to claim his right not to make a statement (which we have no reason to assume) the case will have to be presented to the Director General of Public Prosecutions on the existing basis. If it is a requirement under Irish law that an indictment must have been issued in order for extradition to be effected, we will seek to conduct a police questioning in Ireland and terminate the investigation.

However, the investigation may also be continued after an indictment has been issued if information emerges to give grounds for so doing. We cannot forego our right not to continue the investigation, not least owing to the duty of objectivity that rests with the police and the police prosecuting authority to seek for information that may benefit the charged/indicted person.

In closing, I would like to mention that while reviewing previous documents, 1 noticed that there is an obvious translation error in our supplement to the rogatory commission dated 7 June 2012 on page two, last paragraph. The Norwegian text reads: “25-28. september 2008, det vil si i tiden for innførselen”. This has been translated as “25-28 September 2008. i.e. the period immediately before the substance was imported.” (The correct English translation is: “25-28 September 2008, i.e. the period when the substance was imported”.)

Arising out of this the applicant raised two additional queries with the Norwegian authorities by means of a letter dated the 16th October, 2012. The letter asked:
“Please clarify the following issues:
Is there an intention to prosecute/ charge/indict Mr. Pocevicius if he is returned to Norway?

Does the Norwegian legal system require that you must first speak to a person before an indictment can issue?”

This yielded yet another supplement to the original Rotary Commission, dated the 19th October, 2012 (hereinafter “the supplement of the 19th October, 2012), containing a short further statement from Tormod Haugnes. Once again, no issue has been taken as to proper communication and authentication of this document but, in any event, and without going into the necessary particulars, the Court is again satisfied on the evidence before it that these issues have been properly addressed.
The supplement of the 19th October, 2013, states:
“The original rogatory commission has subsequently had several supplementary documents added. By letter dated 16 October, the Irish judicial authorities request further information relating to two issues, to which we provide the following reply:

“If I were to make a recommendation today to the Norwegian Director General of Public Prosecutions on the basis of the existing evidence. I would obviously recommend that an indictment be brought against Pocevicius. On this basis, it could safely be said that it is our clear intention to bring the case against Pocevicius before the court if he is extradited to Norway.

It is not a requirement under Norwegian law for a suspect to be questioned before bringing an indictment against him. No-one is obliged to make a statement to the police in Norway, and the suspect/charged person (and his/her next of kin and close family) are also not obliged to make a statement to any court of justice. Consequently, an indictment may be brought without the indicted person having made a statement. However, the charged person’s statement is considered so important to the total evidential situation that it would contravene best prosecution practice not to question a suspect if he/she is willing to make a statement.”

Further evidence adduced by the respondent
After the first day of hearing, and in the course of the adjournment, the respondent filed two further affidavits. These were sworn by Ms. Byrne on the 10th October, 2012, and on the 26th October, 2012, respectively.
The purpose of the affidavit of the 10th October, 2012, was, to the extent now relevant, to exhibit certain correspondence between her, as solicitor for the respondent, and the Chief State Solicitor, seeking confirmation that her client’s offer to be interviewed here in Ireland, by the Norwegian police and to provide forensic samples, including a sample of his voice, had been communicated to the Norwegian authorities by the applicant. Moreover, in circumstances asserted in the affidavit, namely that such confirmation was not forthcoming, the affidavit goes on to exhibit another letter addressed directly to the Rogaland Chief of Police and dated the 9th August, 2012, reiterating the offers in question.

The affidavit of the 26th October, 2012, purports to address and dispute various pieces of circumstantial evidence upon which the Norwegian police purport to rely. The disputes in regard to these matters are not centrally relevant to the issues that I have to determine in this judgment, and in the circumstances it is unnecessary to review the affidavit in any detail. I have nonetheless considered the contents of this affidavit and have taken account of them to the extent that they may be relevant (specifically in the context of the s.15 objection).
Submissions on behalf of the respondent
It is contended that the respondent is wanted for the purposes of investigation rather than prosecution.

In support of this contention counsel for the respondent first points to the covering letter from the Royal Norwegian Embassy, Dublin to the Department of Foreign Affairs, dated the 13th July, 2011, which accompanied the request and supporting documentation. This letter states (inter alia): “The Embassy would greatly appreciate the assistance of Irish authorities in following up on this matter, as the said person is the suspect in a serious drug crime now under investigation in Norway.” Counsel asks the Court to note that the respondent is described at that point as a “suspect” in respect of a crime that is “now under investigation in Norway”.

Secondly, counsel for the respondent points out that there is a lack of the specificity required under Article 12 of the European Convention on Extradition 1957. He does so not to suggest that his client is prejudiced in any respect but rather to suggest that the lack of specificity in relation to the charge very much points to the fact that the proceedings are only at the investigative stage. In this context he points to the bold heading above the summary of the facts of the case within the request itself, and asks the Court to note that it refers to “reasonable grounds for suspicion”, and suggests that this in itself is a matter of some significance. He further suggests that those grounds may be summarised as follows: the Norwegian authorities clearly have evidence in relation to an importation of drugs. The suggestion is that a person involved in the importation attempted to dial the number of a telephone which was set up or registered in the name of the respondent, but that that person unintentionally mis-dials the number and gets through to a children’s day nursery instead. Counsel submits that the stated basis for suspecting the respondent’s involvement is so tenuous that the only reasonable inference is that at this stage the Norwegian authorities cannot have decided already, and indeed are nowhere near being ready to decide upon, whether or not to prosecute the respondent.

The plea in point of objection number two that the warrant is defective for lack of specificity was not proceeded with, or maintained, at the hearing.

Counsel for the respondent also points to the charge sheet, and in particular the portion thereof entitled “Grounds for the charge (etc.)”, and submits it is significant that the allegation is framed in the most general terms, namely, that “On Thursday, 25 September 2008, he imported approximately 5kg of methamphetamine to Norway from Lithuania” . This is then immediately followed by the arrest order of the 25th November, 2008 issued by Stavanger District Court which directs that the respondent “be arrested and made to appear before Rogaland Police District pursuant to Section 175(2) cf. Section 171 Nos 1 and 2 of the Norwegian Criminal Procedure Act and Article 95 of the Schengen Convention” In counsel for the respondent’s submission it is noteworthy that he was to be brought before Rogaland Police District and not before a court.

Thirdly, counsel for the respondent then referred the Court to the specific terms of s.171 (1) and (2) of the Norwegian Criminal Procedure Act, and sought to draw to the Court’s attention that these provisions contain a power of arrest based upon suspicion. Moving then to s.175 of the same instrument, counsel submitted that the first paragraph thereof provides that the decision to arrest is made by the prosecuting authority. However, the second paragraph goes on to require that such a decision be made by a court “if the suspect is staying abroad and the prosecuting authority wishes to apply for his extradition”, which is what happened in this case. Nevertheless, it was urged, the decision to arrest is still for the purpose of having the arrestee brought before the police in connection with their ongoing investigations and not for the purpose of bringing him before any court.

The Court’s attention was then drawn to the court order of 12th January, 2010, which states: “There are reasonable grounds for suspecting the charged person of having committed offences contrary to Section 162(1), cf. subsection 3, first sentence of the General Civil Penal Code, as described in the grounds for the charge.” It was submitted that again one can see that the extent of what the court has decided in issuing a warrant is to decide that there is a reasonable basis for a suspicion, and no more than that.

Fourthly, addressing the point that the respondent is stated to have been actually “charged”, counsel for the respondent urged upon this Court that it would be in error to assume that to be “charged” in Norwegian law means the same thing as it means to be charged under Irish law. He referred to the judgment of O’Donnell J., giving judgment for the Supreme Court in Minister for Justice, Equality and Law Reform v. Olsson [2011] 1 IR 384 where, at paragraph 28, he cited with approval the following passage from the judgment of Lord Steyn in the United Kingdom House of Lords case of Re Ismail [1999] 1 AC 320 at pp. 326 to 327:-

“Given the divergent systems of law involved, and notably the differences between criminal procedures in the United Kingdom and in civil law jurisdictions, it is not surprising that the legislature has not attempted a definition [of the word ‘accused’]… It is, however, possible to state in outline the approach to be adopted. The starting point is that ‘accused’ in s.1 of the Act of 1989 is not a term of art. It is a question of fact in each case whether the person passes the threshold test of being an ‘accused’ person. Next there is the reality that one is concerned with the contextual meaning of ‘accused’ in a statute intended to serve the purpose of bringing to justice those accused of serious crimes. There is a transnational interest in the achievement of this aim. Extradition treaties, and extradition statutes ought, therefore, to be accorded a broad and generous construction so far as the texts permits it in order to facilitate extradition: Reg v. Governor of Ashford Remand Centre, Ex parte Postlethwaite [1988] A.C. 924, 946-947. That approach has been applied by the Privy Council to the meaning of ‘accused’ in an extradition treaty: Rey v Government of Switzerland [1999] AC 54, 62G. It follows that it would be wrong to approach the problem of construction solely from the perspective of English criminal procedure, and in particular from the point of view of the formal acts of the laying of an information or the preferring of an indictment …
It is not always easy for an English court to decide when in a civil law jurisdiction a suspect becomes an ‘accused’ person. All one can say with confidence is that a purposive interpretation of ‘accused’ ought to be adopted in order to accommodate the differences between legal systems. In other words, it is necessary for our courts to adopt a cosmopolitan approach to the question whether as a matter of substance rather than form the requirement of there being an ‘accused’ person is satisfied.”

Counsel for the respondent submitted, on the authority of Olsson and In re Ismail, that in considering a word like “charged” and the concept of a charge in a case such as the present, and what these things in fact mean in the Norwegian context, it will be necessary for this Court to adopt a sophisticated, broad and indeed a “cosmopolitan” approach, as was commended by Lord Steyn. The Court should not assume that the charging of a person under the Norwegian system is the same as the charging of a person here in Ireland. It was urged that a closer analogy with what happens in Norway is the procedure under s. 42 of the Criminal Justice Act 1999, and the somewhat similar provisions providing for rearrest under s. 10 of the Criminal Justice Act 1984. It was urged that in this case you have a judge’s warrant for producing a person before a police authority, and a prosecutor who cannot say for certain as to whether or not the matter will proceed to trial, and that is by definition an extradition where a person is being sought for investigative purposes and not for the purposes of prosecution.
In terms of relevant case law the Court was referred to Brien v King and others [1997] 1 I.L.R.M. 338. The case concerned a challenge by way of judicial review to an Order of the first named respondent, a judge of the District Court, approving the proposed extradition of the applicant to the United Kingdom under Part III of the Act of 1965 (since repealed). The judgment commences with a lengthy quotation from the grounding affidavit of the applicant’s solicitors which sets out the facts. For the purposes of the present case the relevant paragraphs were:

“9. The second witness to be called to support the application was D/Constable Robert Tonge of the Greater Manchester Police Force. He said he was investigating two charges of robbery on the 2 June 1993 and the 9 June 1993 at the West Bromwich Building Society, Manchester. He gave evidence that he was seeking David Brien in relation to those offences. He identified David Brien in the dock and stated that he was sought on foot of warrants A and B.
10. Upon cross-examination by counsel for the applicant he was asked if he was the investigating officer and he replied that he was one of the investigating officers. He was asked if David Brien had ever been arrested, questioned or charged with these alleged 1993 offences, to which he replied ‘No’. He was then asked was it his intention to question the accused to which he replied ‘Certainly it will be our intention to question him when he returns to the UK’.

11. I say that he was then re-examined by the representative of the Attorney General’s office. He was asked, ‘Is there enough evidence to prosecute should he not answer your questions’. In reply he said ‘It is difficult to comment on that; it depends; it is not my decision’. He was asked was he aware of the existence of the warrants. To which he replied ‘Yes’. He was asked ‘What do they disclose an intention to do?’ He did not answer. He was taken through the warrants, affidavits and various documentation but he failed to answer the question. Finally, it was put to him, ‘it is intended to prosecute David Brien for the offences of robbery’. To which he answered ‘Oh, Yes’.”

At page 342 et seq of his judgment, Barr J. said:
“Mr. Leahy for the respondents fairly conceded that an order for extradition ought not to be made if the evidence establishes that a decision to prosecute a particular accused in respect of a crime or crimes referred to in the warrant on which extradition is sought had yet to be made at the time of the application to a court in this jurisdiction for extradition in respect of the alleged crime or crimes in question. However, he submitted that D/Constable Tonge’s evidence taken as a whole does establish the requisite intention to prosecute and, therefore, the learned district judge was entitled to make the extradition order which it is now sought to impugn.
The duty of the District Court in the matter of considering applications for the extradition of a citizen to another jurisdiction to be tried for alleged crimes committed there was specified by Walsh J. in course of his judgment in Ellis v. O’Dea(No.1) [1989] I.R. 530 at p.537; [1990] I.L.R.M. 87 at p.91 as follows:-

‘What is involved in the present case is the undoubted residual jurisdiction of the District Court to protect the constitutional rights of any person appearing before it. All persons appearing before the courts of Ireland are entitled to protection against all unfair or unjust procedures or practices. It goes without saying therefore that no person within this jurisdiction may be removed by order of a court or otherwise out of this jurisdiction, where these rights must be protected, to another jurisdiction if to do so would be to expose him to practices or procedures which if exercised within this State would amount to infringements of his constitutional right to fair and just procedures. The obligation of the State to save its citizens from such procedures extends to all acts done within this jurisdiction and that includes proceedings taken under the Extradition Act 1965. As the Extradition Act 1965 is a post-constitutional statute. It must be construed as not permitting persons appearing before our courts to be by order of our courts subjected to or exposed to any judicial process or procedure inside or outside this jurisdiction, which in this jurisdiction would amount to a denial or an infringement of the constitutional right to fair procedures. Any statute which would expressly seek to do so, or which by necessary implication would give rise to such an interpretation must necessarily be unconstitutional. There is nothing in the Act of 1965 which could be construed as purporting to permit to be exposed any person, the subject of extradition proceedings, to procedures which the Constitution would not tolerate. In other words there must be not only a correspondence of offences but also a correspondence of fair procedures. No procedure to which the extradited person could be exposed may be one which, if followed in this State, would be condemned as being unconstitutional.’

This dictum makes it clear that the duty of the district judge on such application is not restricted to an enquiry as to whether the requirements contained in the Extradition Act 1965 have been complied with, but also includes a duty to protect the constitutional rights of the person against whom extradition has been sought. This includes an obligation, where the evidence raises a reasonable doubt in the matter, to enquire into whether, if the order is granted, the police authorities who sought it have a real intention to bring the person named in the warrant forthwith before the court which issued it for the purpose of prosecuting the extraditee in respect of the offence or offences specified in the warrant.
The net issue for consideration by me is whether the evidence before the first named respondent when she made the extradition order raised a reasonable doubt as to the intention at that time of the Manchester police to prosecute the applicant in respect of the offences specified in the warrants. If the evidence gave rise to such a doubt then she ought not to have made the order, because in Irish law a warrant, such as those in the present case, ought not to be applied for or issued by a court unless the investigating police, on whose behalf the application is made, have decided on sufficient evidence to prosecute the person in respect of whom the warrant is sought. Such warrants ought not to be applied for by the police on a speculative basis in the hope that when a suspect is interrogated after arrest on foot of the warrant he will furnish information which is sufficient to justify his prosecution for the offence alleged.”

Counsel urges that even making allowances for the historical context the underlying principle for which he submits this case is authority remains intact, i.e., that extradition shall not be ordered where it is effectively for the purposes of investigation. This remains the position in Ireland, even under the European Arrest Warrant system which now operates in lieu of extradition in respect of those countries that are members of the EU (which Norway is not), as is clear from various judgments of members of the Supreme Court in the case of Minister for Justice, Equality and Law Reform v Bailey [2012] IESC 16; [2012] 3 JIC 0101(Unreported, Supreme Court, 1st March, 2012).
That the said principle remains a matter of Irish State policy is reflected in the reservation entered to the Framework Decision 2002, as recorded in the document of 6/7 December 2001 entitled “Corrigendum to the Outcome of Proceedings concerning the Proposal for a Council Framework Decision on the European arrest warrant and the surrender procedures between Member States” (which forms part of the relevant travaux préparatoire on the Framework Decision ); and is further reflected in the terms in which s. 21A of the European Arrest Warrant Act 2003 (hereinafter the Act of 2003) was enacted.

Counsel submits that the policy, thus reflected, is based upon a long standing view that it would be unconstitutional to surrender somebody in circumstances where they would possibly, and indeed probably, face incarceration for a substantial period of time while an investigation, which might or might not lead to them being put on trial, is carried out. It was urged that so seriously do we take this principle, which counsel characterises as being a constitutional sine qua non, that even in the Irish domestic context, under the Criminal Justice Act 1984 (as amended), detention for the purposes of investigation is limited to an absolute maximum of seven days, and after just three days it requires to be authorised by a court.

It was also urged that the fact that the respondent might be entitled to apply for bail in Norway is neither here nor there in terms of the applicability of the fundamental and underlying principle, because he would be applying for bail in the context of his detention for investigation and not his detention for the purposes of prosecution. It would be fundamentally wrong for the Irish State to put him in the position of having to do so. It was urged that applying the rationale of the decision People (Attorney General) v. O’Callaghan [1966] I.R. 501 the state could not be complicit in surrendering the respondent solely for the purposes of investigation in circumstances where he would be detained, if only pending the making of a bail application (the outcome of which would be at best uncertain), because to do so would be an action inconsistent with, and disrespectful of, the respondent’s presumption of innocence.

Counsel further roots his objection in section 9 of the Act of 1965 which states:

“Where a country in relation to which this Part applies duly requests the surrender of a person who is being proceeded against in that country for an offence or who is wanted by that country for the carrying out of a sentence, that person shall, subject to and in accordance with the provisions of this Part, be surrendered to that country.”
Counsel argues that surrender is only possible where a respondent is being “proceeded against” (although he concedes that the matter is not as clear as he would like it to be in the absence of a definition of what “proceeded against” means.) It was submitted that proceedings connotes court proceedings and that a person who is being proceeded against is a person in respect of whom court proceedings are being taken and not a person who is wanted principally for the purpose of assisting with enquiries. Counsel stated that he was not saying that the seeking of a person’s assistance with enquiries could not be a part of proceedings (in the sense of the word “proceedings” that he was contending for) taken against such a person, as indeed was the situation in Olsson. However, the seeking of a person’s assistance with enquiries cannot of itself, and without more, be deemed to be proceedings taken against that person.
Counsel points out that because the European Convention on Extradition of 1957 predates the Act of 1965, it is unsurprising that many of its provisions are mirrored in the Act of 1965. Accordingly, the terms of s. 9 of the Act of 1965 largely reflect those of Article 1 of the Convention.

Counsel for the respondent referred again to the case of Minister for Justice, Equality and Law Reform v. Olsson [2011] 1 IR 384 and drew attention to the facts as summarised:

“The respondent was a citizen of Sweden in this jurisdiction against whom the Swedish authorities had issued a European arrest warrant in relation to four offences for which they intended to prosecute him. The Swedish police were required to interview the plaintiff in order to formally conclude their criminal investigation, after which the final decision on whether or not to prosecute him would be taken.”
Counsel submitted that the evidence was very clear that this was really a formal procedural step and that it was going to result in Mr. Olsson being charged. It therefore seemed to be a peculiar artefact of Swedish law that the police were not allowed to conclude their investigation and move matters to the next stage until the step of interviewing the suspected person had been taken. It was suggested that the evidence in the present case does not go that far.
Moreover, in so far as it is suggested that the respondent may have been in Ireland during at least part of the material timeframe, the respondent further relies upon the territoriality exception contained in s. 15 of the Act of 1965 which states:

“Extradition shall not be granted where the offence for which it is requested is regarded under the law of the State as having been committed in the State.”
In this context counsel for the respondent points to upon s. 20 of the Misuse of Drugs Act 1977 which states:
“20.—(1) Any person who aids, abets, counsels or induces the commission in a place outside the State of an offence punishable under a corresponding law in force in that place shall be guilty of an offence.
(2) In this section “a corresponding law” means a law stated in a certificate purporting to be issued by or on behalf of the government of a country outside the State to be a law providing for the control or regulation in that country of the manufacture, production, supply, use, exportation or importation of dangerous or otherwise harmful drugs in pursuance of any treaty, convention, protocol or other agreement between states and prepared or implemented by, or under the auspices of, the League of Nations or the United Nations Organisation and which for the time being is in force.

(3) Any statement in a certificate mentioned in subsection (2) of this section as to the effect of the law mentioned in the certificate or any such statement that any facts constitute an offence against the law so mentioned shall, for the purposes of any proceedings under this Act, be evidence of the matters stated.”

It is the respondent’s case that by virtue of s.20 of the Misuse of Drugs Act 1977 the crimes being attributed to him are to be regarded for jurisdictional purposes as having been committed within the Irish State, regardless of whether his participation was wholly within the territory of Norway, or partly in Ireland and partly in Norway, and that in those circumstances s.15 of the Act of 1965 applies and he cannot be extradited to Norway.
The respondent further submits that it would constitute a disproportionate interference with the respondent’s rights, including his right to liberty, to surrender him in circumstances where he has volunteered to make himself available here in Ireland for the purpose of being interviewed by the Norwegian police. It was submitted that in circumstances where he is consenting to being interviewed the Norwegian authorities have no need to have resort to any legal measures in order to facilitate such an interview, and certainly they have no need to have recourse to extradition. It is not even necessary for them to invoke or seek to avail of the Mutual Assistance Convention, and the legislation implementing it. Members of the Norwegian police can either travel to this country to conduct the interview, or alternatively interview the respondent from Norway utilising a video link.

In support of his proportionality argument counsel for the respondent relies upon a judgment of the High Court of England and Wales sitting as a Divisional Court in case of Assange v. Swedish Prosecution Authority [2011] EWHC 2849 (Admin). The judgment of the Divisional High Court was delivered by the President of the Queens Bench Division, Sir John Thomas who stated, inter alia:

“155. Mr Assange submitted that even if under the EAW he was technically a person accused of offences, it was disproportionate to seek his surrender under the EAW. That was because, as he had to be questioned before a decision was made on prosecution, he had offered to be questioned over a video link. It would therefore have been proportionate to question him in that way and have reached a decision on whether to charge him before issuing the EAW.
156. It is clear from the report of the European Commission on the Implementation of the Framework Decision (COM(2011)175, Final, 11 April 2011), that there was general agreement between the member states, as a result of the use of the EAW for minor offences technically within the Framework Decision, that a proportionality check was necessary before a judicial authority in a Member State issued an EAW. This statement was a strong reminder to judicial authorities in a Member State contemplating the issue of an EAW of the need to ensure that the EAW was not used for minor offences. It is not a legal requirement. There is, however, almost universal agreement among prosecutors and judges across Europe that this reminder to conduct a proportionality check should be heeded before an EAW is issued.

157. It was submitted on behalf of Mr Assange that proportionality was also a requirement of the law on the following basis. The Framework Decision as an EU instrument is subject to the principle of proportionality; reliance was placed on the effect of the Charter of Fundamental Rights, R(NS) v SSHD [2010] EWCA Civ 990 and the decision of the Higher Regional Court in Stuttgart in General Public Prosecution Service v C (25 February 2010), as reported at [2010] Crim LR 474 by Professors Vogel and Spencer. We will assume that Mr Assange’s argument that an EAW can only be used where proportionate, complex as it is, is well founded without lengthening the judgment still further to express a view on it.

158. However, the argument fails on the facts. First, in this case the challenge to the issue of the warrant for the arrest of Mr Assange failed before the Court of Appeal of Svea. In those circumstances, taking into account the respect this court should accord the decision of the Court of Appeal of Svea in relation to proceedings governed by Swedish procedural law, we do not consider the decision to issue the EAW could be said to be disproportionate

159. Second and in any event, this is self-evidently not a case relating to a trivial offence, but to serious sexual offences. Assuming proportionality is a requirement, it is difficult to see what real scope there is for the argument in circumstances where a Swedish Court of Appeal has taken the view, as part of Swedish procedure, that an arrest is necessary.

160. We would add that although some criticism was made of Ms Ny in this case, it is difficult to say, irrespective of the decision of the Court of Appeal of Svea, that her failure to take up the offer of a video link for questioning was so unreasonable as to make it disproportionate to seek Mr Assange’s surrender, given all the other matters raised by Mr Assange in the course of proceedings before the Senior District Judge. The prosecutor must be entitled to seek to apply the provisions of Swedish law to the procedure once it has been determined that Mr Assange is an accused and is required for the purposes of prosecution. Under the law of Sweden the final stage occurs shortly before trial. Those procedural provisions must be respected by us given the mutual recognition and confidence required by the Framework Decision; to do otherwise would be to undermine the effectiveness of the principles on which the Framework Decision is based. In any event, we were far from persuaded that other procedures suggested on behalf of Mr Assange would have proved practicable or would not have been the subject of lengthy dispute.”

While accepting that a proportionality argument failed in the particular circumstances of Mr. Assange’s case, counsel for the respondent contends that the important point is that the Divisional Court was prepared to accept the underlying proposition advanced on his behalf, namely that a European arrest warrant could only be used where it was proportionate to do so. He argues that, there is no reason in principle why the same should not apply to traditional extradition requests.
The Court is also asked to take into account in considering the question of proportionality that there has been a certain amount of delay in this case. It is pointed out that the letter from the Norwegian Embassy dated the 13th July, 2011, accompanying the request refers to earlier correspondence between the Embassy and the Irish Department of Foreign Affairs dated the 14th July, 2009.
Submissions on behalf of the applicant
Counsel for applicant asks the Court to note that the objection to the effect that the request for extradition is a disproportionate measure in the light of the respondent’s offer to submit to questioning is premised on the correctness of his contention that the Norwegian authorities’ primary purpose in seeking his extradition is to question him. However, counsel submits, there is a fundamental disagreement between the applicant and the respondent as to what is the primary purpose of the request. Without conceding that the proportionality of a proposed extradition measure could ever arise for consideration, it most certainly could not arise unless the respondent is correct in his basic premise.

Turning to the issue of the purpose for which extradition is being sought, and counsel for the respondent’s reliance on the reference to “being proceeded against” in s. 9 of the Act of 1965, counsel for the applicant points out that somewhat similar language appears in Article 1 of the European Convention on Extradition 1957 (which deals with the obligation to extradite), and she submits that the wording of s.9 of the 1965 Act obviously reflects that.

Article 1 provides:

“The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order.”
However, s. 9 of the Act of 1965 is not to be read in isolation. It is to be construed in the context of the Act of 1965 read as a whole. It is preceded in the same Act by s. 8 dealing with the application of Part II and which refers to “persons wanted for prosecution or punishment”. Both s.8 and s.9 appear within Part II of the Act of 1965, and they are clearly intended to be read together. Accordingly, the reference to “a person who is being proceeded against” in s. 9 must mean, in so far as unconvicted persons are concerned, a person who is being, or is to be, prosecuted. That understanding does not mean, however, that a restriction as narrow as that imposed in the European arrest warrant context by s. 21A of the Act of 2003 applies in the extradition context.
Counsel contends that s.21A is very differently framed provision, and in support of this cites the following passage from the judgment of Fennelly J. in Minister for Justice, Equality and Law Reform v. Bailey [2012] IESC 16 (Unreported, Supreme Court, 1st March, 2012) where, having in previous paragraphs considered the requirement in s. 21A of a decision to “try”, he states at para 114:

“I am, therefore, compelled to agree that the section prohibits the surrender of the appellant. If this section were not in such terms, it could be plausibly argued that, looking at the French criminal procedure in its entirety, and even accepting that it is still only at the stage of instruction, the surrender of the appellant is sought “for the purposes of conducting a criminal prosecution…” A broad, purposive and conforming interpretation could well lead to that result. But the section is quite explicit. It is not open to the Court, by means of conforming interpretation, to circumvent the clear terms of s. 21A.”
However, it is conceded by the applicant that a person’s extradition cannot be legitimately sought solely in connection with progressing an investigation, and in that regard counsel for the applicant points to the following passage from the judgment of Murray J. in the Bailey case, where the learned judge stated:
“It is a long established principle of extradition law that persons are not extradited for the purposes of questioning them as suspects but for the purpose of charging and prosecuting them with a criminal offence so that they may be brought to trial in a Court of law.”
That statement mirrors and is wholly consistent with the earlier observation of Murray C.J. (as he then was) in Minister for Justice, Equality and Law Reform v. McArdle [2005] 4 IR 260 where he stated, at pp 266 to 267 :-
“[19] …. The surrender of a person for the purpose of prosecution and trying him or her on a criminal offence means that the decision taken by the relevant authority to prosecute and try that person is not contingent on the outcome of further factual investigation. That requirement does not of course preclude the pursuit of any continuing or parallel investigation into the circumstances of the offence. It means that the decision to prosecute is not dependant on such further investigation producing sufficient evidence to justify putting a person on trial.”
All of that being said, counsel for the applicant has strongly urged upon the Court that in the present case, though some investigative steps remain to be taken, Mr. Pocevicius is the subject of a process that will ultimately lead to him being put on trial, barring some unanticipated or unseen development. Mr. Tormod Haugnes has stated in the supplement of the 12th September, 2012, that “[s]ince the rogatory commission was brought by the public prosecutors, we have presented a provisional assessment that, on the basis of the existing evidence, grounds exist for issuing an indictment. This means that if no information subsequently emerges which would place the case in a different light, a request for extradition will have the clear intention of bringing the case before the court when the charged person has been extradited.” While only the Director General of Public Prosecutions can make the formal decision to indict Mr. Pocevicius that is a procedural requirement. The reality is that the Director General acts upon the recommendations of the public prosecutor, and Mr. Haugnes, the public prosecutor in this case, has further stated in the supplement of the 19th October, 2013, that “If I were to make a recommendation today to the Norwegian Director General of Public Prosecutions on the basis of the existing evidence. I would obviously recommend that an indictment be brought against Pocevicius. On this basis, it could safely be said that it is our clear intention to bring the case against Pocevicius before the court if he is extradited to Norway.”
Counsel for the applicant contends that in the light of the above the Court can be satisfied that Mr Pocevicius is being proceeded against in Norway, and that there is a clear present intention that he will be brought before a Court and tried for the offence with which he is charged and which remains under investigation. However, the critical point is that a final decision in that regard will not be dependent on such further investigation producing sufficient evidence to put him on trial.

Counsel for the applicant also relies heavily on those passages from the Supreme Court’s decision in Minister for Justice, Equality and Law Reform v Olsson [2011] 1. I.R. 384 cited by the respondent, as well as the following additional passages at p.399-400:

[34] The requirement of the relevant decision, intention or purpose can best be understood by identifying what is intended to be insufficient for the issuance and execution of a European arrest warrant. A warrant issued for the purposes of investigation of an offence alone, in circumstances where that investigation might or might not result in a prosecution, would be insufficient. Here it is clear that the requested person is required for the purposes of conducting a criminal prosecution (in the words of the Framework Decision) and that the Kingdom of Sweden intends to bring proceedings against him, (in the words of s. 10 of the Act of 2003) Consequently it follows that the existence of any such intention is virtually coterminous with a decision to bring proceedings sufficient for the purposes of s. 21A. As Murray C.J. pointed out in Minister for Justice v. McArdle [2005] IESC 76, [2005] 4 IR 260, that result is not altered by the fact that there may be a continuing investigation, or indeed that such investigation will be assisted by the return of the requested person.
[35] It would be entirely within the Framework Decision and the Act of 2003 if, after further investigation, the prosecution authorities decided not to prosecute because, for example, they had become convinced of the requested person’s innocence. There would still have been an “intention” to prosecute, and a decision to do so at the time the warrant was issued and executed. Accordingly, the warrant would have been issued for the purposes of conducting a criminal prosecution. What is impermissible is that a decision to prosecute should be dependent on such further investigation producing sufficient evidence to put a person on trial. In such a situation there is in truth no present “decision” to prosecute, and no present “intention” to bring proceedings. Such a decision and intention would only crystallise if the investigation reached a certain point in the future. In such a case any warrant could not be said to be for the purposes of conducting a criminal prosecution: instead it could only properly be described as a warrant for the purposes of conducting a criminal investigation. In such circumstances, a court would be satisfied under s. 21A of the Act of 2003, as amended that no decision had been made to charge or try the requested person.

[36] It is noteworthy, that on the evidence in this case, the position in relation to the respondent is not by any means unusual in the Swedish system, and indeed represents the norm in a number of European countries. …”

Counsel for the applicant submitted that while Norway is not a European Arrest Warrant country the system as described in evidence is not far removed from that in the neighbouring jurisdiction of Sweden as described in Olsson, and so the remark made by O’Donnell J. in paragraph 36 of his judgment and quoted above is apposite in the case of Norway as well. Counsel for the applicant’s core argument is that in extradition, as is the case under the European arrest warrant system, “[w]hat is impermissible is that a decision to prosecute should be dependent on … further investigation producing sufficient evidence to put a person on trial.” She further urges that that is not the situation in the present case. On the contrary, at the time of the extradition request in this case the Norwegian public prosecutor considered, and still considers, that he has sufficient evidence to recommend to the Director General of Public Prosecutions that an indictment should be issued against Mr. Pocevicius, and indeed, it may be inferred, he is confident that if sought an indictment would indeed issue. However, in accordance with what is regarded as best practice, it is not usual in Norway to seek an indictment until the investigation, including interviewing the suspect, is complete and that is the only reason why he has not done so to date.
The Court’s Decision
Having carefully considered the arguments presented by both sides I find that I am persuaded by those of the applicant, and I am satisfied that Mr. Pocevicius’s extradition is not being sought, solely, or even primarily, for the purposes of progressing the investigation in this case. The Court is satisfied that he is in fact wanted with a view to his prosecution although a final decision that he should be indicted has not yet been made by the competent authority. He is at present a suspect, but a suspect whose prosecution is intended. The fact that further investigations still have to be carried out does not affect this.

The fact that he has been “charged” is not determinative of matters. Indeed, I believe that counsel for the respondent is correct in his characterisation of the Norwegian charging process as being for the facilitation of police investigations rather than for the purpose of bringing a person before any court. However, as was explained by Mr. Tormod Haugnes, the public prosecutors have received the file in Mr. Pocevicius’s case from the police prosecuting authority with a recommendation in respect of prosecution, and so it has moved to the next phase. The public prosecutors have in turn considered the file and agree that there should be a prosecution.

It is considered that on present evidence there is sufficient to recommend to the Director General of Public Prosecutions that an indictment should issue. This Court, being completely unfamiliar with Norwegian criminal law, criminal procedure and laws of evidence, must take that assessment at face value in the absence of any expert evidence to the contrary.

There is therefore a present intention by the party with what might be characterised as “carriage of the case” to prosecute Mr. Pocevicius. I have given deep consideration to whether, as was urged by counsel for the respondent in rejoinder, the fact that only the Director General of Public Prosecutions is competent to issue an indictment is fatal to the applicant’s case. In other words is it necessary that there should be evidence that the only party competent to issue an indictment against Mr. Pocevicius should have a present intention to prosecute. On balance, I do not believe that it is.

As the Court understands it from the evidence of Mr. Haugnes the Director General of Public Prosecutions and the public prosecutor are part of the same service, i.e., the Norwegian Prosecution Service, albeit operating at different levels. They would therefore share a common approach to the assessment of evidence, rendering it likely that a recommendation would be followed in most cases. The public prosecutor has carriage of the case (as I have characterised it), and will retain carriage of the case if or when an indictment is issued. While one must assume that the Director General of Public Prosecutions will make his own assessment of the evidence, and will not just rubber stamp the recommendation of the public prosecutor, and possibly could refuse to issue an indictment, the reality is that refusal to issue an indictment would be an unlikely eventuality if there are no unforeseen developments in the case.

The situation in Norway, in which the Director General of Public Prosecution receives a file with a recommendation for the issuing of an indictment from the public prosecutor, is not therefore analogous to the situation in Ireland where the Director of Public Prosecutions receives a file from An Garda Siochana with a recommendation (as was submitted by counsel for the respondent in rejoinder).

I am satisfied that notwithstanding that aspects of the investigation remain to be addressed, including the interviewing of Mr. Pocevicius, he is being proceeded against at the present time, within the meaning of s. 9 of the Act of 1965 and Article 1 of the European Convention on Extradition 1957, in as much as the public prosecutor has a present intention to recommend that an indictment be preferred against him and to seek to bring him to trial for the offence referred to in the Rogatory Commission. Moreover, while the preferment of a formal indictment is only within the competence of the Director General of Public Prosecutions, a decision by that officer to do so will not be dependent on further investigation producing sufficient evidence to put Mr. Pocevicius on trial.

The Court therefore rejects the objection to the effect that the respondent is wanted solely, or primarily, for the purposes of investigation. In the Court’s view Mr. Pocevicius’s extradition would not contravene his rights, including his right to liberty, under the Constitution of Ireland or be contrary to the legislative and public policy of this country.

Further, I am of the view that counsel for the applicant is correct in her submission that no issue of proportionality can arise in circumstances where there is an intention to prosecute the respondent and he is being proceeded against in that connection.

Turning then to the objection based upon s. 15 of the Act of 1965, I have previously expressed the view obiter dictum in a case of Minister for Justice and Equality v. Connolly [2012] IEHC 575 (Unreported, High Court, Edwards J., 6th December, 2012) that s. 20 of the Misuse of Drugs Act 1977 is both territorial and extra territorial in its application. While it is extra territorial in that it allows a person to be tried in Ireland for aiding, abetting, counselling or inducing the commission in a place outside the state of an offence punishable under a corresponding law in force in that place, it is territorial in as much as the act constituting that aiding, abetting, counselling or inducing must be an act done within the territory of Ireland. While the respondent has sought to suggest in his affidavit that he may have been in Ireland on the 25th September, 2008, the act or conduct alleged against him is possession (in the sense of exercising control) of drugs in Stavanger on that date. Whether or not Mr. Pocevicius was in Norway or in Ireland, or in both places, on the date in question is not determinative of whether the offence to which the extradition request relates could be tried in Ireland. In order for the offence to be triable in Ireland it would have to be established that some act or conduct amounting to aiding, abetting, counselling or inducing the commission of the drugs offence charged against him in Norway was committed by the respondent while he was in Ireland. There is, however, nothing in the evidence capable of establishing as a matter of probability that any act or conduct of that sort was committed in Ireland. At most there is a suggestion, which is still being examined, that Mr. Pocevicius may have been in Ireland on the date in question. The evidence, such as it is, does not establish that anything specific was done in Ireland to exercise control over drugs imported, or to be imported, into Norway on that date. Accordingly, the Court is not satisfied that the offence in question is regarded under the law of Ireland as having been committed in this state. I therefore reject the objection based upon s. 15 of the Act of 1965.

Point number four in the points of objection was not maintained or pursued at the hearing. Moreover, delay as pleaded in point of objection number six was not pursued as a stand alone ground of objection, but rather was relied upon solely as an additional factor to be taken into account in the event of the Court having to consider the proportionality argument. As previously indicated, proportionality does not fall for consideration in the circumstances of this case. Finally, the further claim at point of objection number six that to surrender the respondent would breach his constitutional right to a fair trial was also not maintained or pursued at the hearing.

The Court is disposed in all the circumstances to make an order pursuant to s. 29 (1) of the Act of 1965 as amended committing the respondent.

Sey v Johnson

[1989] IR 516

O’Hanlon J.
20th September 1989

The respondent made an order in the District Court sitting in Kilkenny on the 7th June, 1988, pursuant to Part III of the Extradition Act, 1965, for the extradition of the applicant from the jurisdiction for the purpose of having him brought before a court in Scotland to face charges of obtaining money by false pretences and larceny.
The validity of that order is now challenged in these proceedings for judicial review on a number of different grounds. These are referred to in the order of Blayney J. dated the 20th June, 1988, giving leave to apply for judicial review, and are as follows:
“The said order and determination of the District Court was wrong in that
(a) it did not state if or which corresponding offences in the State were summary or indictable;
(b) it specified offences within the State not corresponding to offences in the said warrant;
(c) it specified offences within the State in multiplicity; and
(d) it did not specify or sufficiently specify statutory sources of offences within the State and was thereby without or in excess of jurisdiction.”
Section 47, sub-s. 1 of the Extradition Act, 1965, deals with the making of an extradition order by the District Court under Part III of the Act (which deals with extradition to Northern Ireland, England and Wales, Scotland, the Isle of Man and the Channel Islands), and sub-s. 2 of s. 47 provides as follows:
“(2) An order shall not be made under subsection (1) if it appears to the Court that the offence specified in the warrant does not correspond with any offence under the law of the State which is an indictable offence or is punishable on summary conviction by imprisonment for a maximum period of at least six months.”
Where an order has been made under s. 47, an application may be made by the person to whom the order relates, or on his behalf, for an order of habeas corpus or for his release under s. 50 and, in the event of an application being made under section 50 of the Act, the High Court may direct the release of the person concerned inter alia where the court is of opinion that
“the offence specified in the warrant does not correspond with any offence under the law of the State which is an indictable offence or is punishable on summary conviction by imprisonment for a maximum period of at least six months.” (Section 50, sub-section 2 (c)).
In the present case, however, the applicant has by-passed the procedures contemplated by the Act, namely, the application for relief by way of habeas corpus or the application for relief under the provisions of s. 50 of the Act, and has elected instead to apply for judicial review of the order made in the District Court for the purpose of seeking an order of certiorari to quash the said order. There are, however, concurrent proceedings in being under s. 50 of the Act initiated by special summons (Record number 1988 No. 520 Sp. Ct. 6), and those proceedings appear to have been left in abeyance pending the outcome of the present application.
The order made in the District Court for the extradition of the applicant recites the particulars of the offences charged against the applicant as contained in the warrant dated the 23rd February, 1987, which had to be considered by the court.
Two charges are referred to in the warrant. The first charge, which is set out in considerable detail, charges the applicant with falsely representing to police officers in Dunfermline in Scotland that his house had been broken into and jewellery and money stolen, and making similar false representations to a firm of insurance brokers, as a result of which he induced two insurance companies topay him compensation for the loss of that jewellery and money. The second charge is that “having between the 19th September, 1982, and the 9th February, 1985, both dates inclusive, at the Metro Bar, Queensferry Road, Rosyth, received a cigarette lighter for safekeeping from Ronald Mathie, 31 Cromwell Road, Rosyth, he did between the said dates at said Metro Bar or elsewhere in Scotland, appropriate said cigarette lighter to his own use and did steal same.”
The particulars given in relation to the first charge are, in my opinion, clearly adequate for the purpose of establishing (if proved in due course), the offence of obtaining money by false pretences as known to our law. The offence is dealt with by s. 32 of the Larceny Act, 1916, where it is made a misdemeanour punishable on indictment with penal servitude for any term not exceeding five years, and again by s. 10 of the Criminal Justice Act, 1951, where it is made a misdemeanour carrying a maximum penalty of five years penal servitude or imprisonment for a term not exceeding two years.
The order of the learned respondent, however, as well as referring to the corresponding offence under s. 10 of the Criminal Justice Act, 1951, also referred to other corresponding offences under our criminal law, which, in his opinion, were disclosed by the particulars given in relation to the first charge. For example, he took the view (in my opinion, incorrectly) that a charge would lie under s. 6 of the Forgery Act, 1913, based on the submission by the applicant to his insurance brokers of a list of jewellery and money claimed to have been stolen, at a time when the applicant knew that they had not been stolen. However, the reference to these additional offences which he regarded as “corresponding offences” under our law, even if incorrect, does not in my opinion, invalidate the warrant for extradition. In The State (Furlong) v. Kelly [1971] I.R. 132, the following passage appears in the judgment of Ã“ DÃ¡laigh C.J. at p. 141 of the report:
“The basic inquiry is to discover whether the several ingredients which constitute the offence specified in the warrant, or one or more of such ingredients, constitute an offence under the law of the State and, if they do, whether that offence (the “corresponding offence”) is an indictable offence or, if not, whether it is punishable on summary conviction by imprisonment for a maximum period of at least six months.”
This would indicate that the learned respondent was entitled, as he did, to refer in his order not only to the corresponding offence in our law disclosed by the description given in count one of the warrant taken as a whole, but also to other offences which, in his opinion, should be regarded as corresponding offences in our law, even if one were to take only some of the ingredients referred to in the warrant as making up count one of the charge against the applicant. Even if he were in error in relation to some one or more of the offences considered by him to be corresponding offences in our law disclosed by the details of the charges made against the applicant, that would not, in my opinion, invalidate his order provided it could be shown that the details given in the warrant did, in fact, constitute an offence in our law, of the character referred to in ss. 47 and 50 of the Act of 1965. Walsh J., in his judgment in The State (Furlong) v. Kelly [1971] I.R. 132 said, at p. 142 of the report:

“If it should appear, on application to the High Court for an order of habeas corpus, that the offence under the law of this State found by the District Justice is not in fact a corresponding offence under the law of this State, I do not think that such a position would be fatal to the validity of his order provided that it could be shown in the High Court or on appeal in this Court, as the case may be, that the offence in the warrant did correspond with some offence under the law of this State.”
In my opinion, the same approach should be adopted by the High Court in an application, such as the present one, where the challenge to the validity of the order is brought, not by way of application for relief by way of habeas corpus but by application for judicial review seeking an order of certiorari to quash the order of the District Court.
The same consideration applies in relation to the complaint made on behalf of the applicant that the learned respondent did not spell out in detail the nature of the offences considered by him to be corresponding offences under our law but contented himself merely by referring to offences arising under particular sections of particular statutes. In one case the section in question created a number of different offences. It is correct to say that the effect of judgments of the High Court and the Supreme Court is to indicate that a district justice in a case such as the present should designate with some particularity the offence which he regards as a corresponding offence under our law with that detailed in the warrant which he has to consider. However, a failure on his part to do so adequately has not been regarded as fatal to the application, if the High Court, or Supreme Court on appeal, finds that a corresponding offence has been in fact disclosed. This point is dealt with in the judgment of Walsh J. in Wyatt v. McLoughlin [1974] I.R. 378, at p. 401 of the report, as follows:
“The only other matter I wish to deal with is the fact that the District Justice, while correct in deciding that there was a corresponding offence under the Act of 1916, did not say which offence. He should have done so, but the order is not bad because he did not do so fully. In the course of my judgment in Furlong’s Case [1971] I.R. 132 at p. 142 of the report, I expressed the view that if a District Justice erroneously designated a particular offence under our law as being the corresponding offence it would not be fatal to his order provided it could be shown in the High Court or, on appeal, in this Court that the offence in the warrant did correspond with some offence under the law of this State.”
The second charge referred to in the warrant could present more difficulty if it stood alone. Counsel for the applicant claims that by reason of the apparently trivial nature of the offence alleged, the vagueness of the particulars as to the time when the offence was committed, and the long delay which has occurred in bringing the charge, it should be regarded as no more than a make-weight for the purpose of ensuring that the applicant would be extradited on one charge or another.
However, as was pointed out by Henchy J. in his judgment in Hanlon v. Fleming [1981] I.R. 489 at p. 494 of the report:
“. . . The scheme of reciprocal extradition between Ireland and the United Kingdom, represented on the Irish side by the Extradition Act, 1965, does not recognise delay as a ground for refusing extradition. For the Courts in this State to recognise delay as such a ground, it would be necessary to read into the statute something that has been omitted, presumably on purpose.”
In relation to this charge the learned respondent considered that the corresponding offence under our law would be the offence of fraudulent conversion as described in s. 10 of the Larceny Act, 1916. However, the word”fraudulently” is a key element in the offences created by that section, and is not used in the description of the charge in the warrant, so that we seem to have here an extra ingredient required by our law, as referred to in the judgment of Ã“ Dalaigh C.J. in The State (Furlong) v. Kelly [1971] I.R. 132 which may prevent the offence being regarded as a corresponding offence for the purposes of the Extradition Act.
A more obvious charge would be that of larceny by a bailee, as described in s. 1, sub-s. 1 of the Larceny Act, 1916, but if this is to be regarded as a corresponding offence it would involve giving the word “steal” the same meaning in Scottish law as it has in our own law. Having regard to what was said in The State (Furlong) v. Kelly [1971] I.R. 132 and in Hanlon v. Fleming [1981] I.R. 489, it might be thought necessary to spell out in detail what was involved in the act of stealing for the purposes of Scottish law before it could be said that a charge of larceny by a bailee as known to our law was a corresponding offence. In Wilson v. Sheehan [1979] I.R. 423, however, the Supreme Court took the view that the descriptive words in a warrant, (and in that case the word “rob”) should be given their ordinary meaning in layman’s language, unless qualified (as happened in Furlong’s Case ) by a reference to terminology as used in a particular statutory context.
I do not consider it necessary to reach a final decision on this point, as to whether there is a corresponding offence within the meaning of s. 47 and s. 50 of the Act of 1965 in the law of the State with that described in the second charge referred to in the warrant, having regard to the conclusion already reached in relation to the first charge in the warrant. Kenny J., when delivering the judgment of the Supreme Court in Molloy v. Sheehan [1978] I.R. 438, confirmed, if confirmation were necessary, that it was sufficient to validate the warrant if any one of the offences therein referred to corresponded with offences of the necessary character under Irish law. The following passage appears at p. 444 of the report:
“In my opinion the fact that a warrant is issued under Part III of the Act of 1965 in respect of a number of offences, some of which do not correspond with offences under our law, does not invalidate the warrant for extradition purposes provided that one of the offences corresponds with an offence under our law which is an indictable offence or is punishable on summary conviction by imprisonment for a maximum period of at least six months, and provided that none of the offences is a political offence or an offence connected with a political offence or an offence under military law which is not an offence under ordinary criminal law or a revenue offence. Therefore, I reject the whole of the argument based on the misleading head of “severability”.”
The endorsement of the warrant as required by s. 43 of the Act of 1965 by the Deputy Commissioner of the Garda Siochana, was made, apparently through oversight, at the foot of the petition for the warrant, instead of following on the warrant itself, but as the entire document is a single document I feel that the endorsement should be treated as valid for the purposes of the Act. It is not a matter which was relied on in the application for leave to apply for judicial review, nor did it form one of the grounds referred to in the order of Blayney J. giving leave to apply for judicial review.
I hold that the order of the learned respondent justice was validly made in the present case, and refuse the present application for relief by way of certiorari to quash the said order.

Aamand v Smithwick

, High Court, 21 December 1993; [1995] 1 ILRM 61

Finlay CJ
This is an appeal by the applicant against the order made by Lavan J in the High Court on 21 December 1993 upon completion of an enquiry pursuant to Article 40.4.2° of the Constitution determining that the applicant was being detained in accordance with law and refusing to order his release from custody.

The applicant is detained pursuant to an order dated 19 May 1993 made by the President of the District Court, Judge Peter Smithwick, pursuant to s. 29(1) of the Extradition Act 1965 (the 1965 Act) his extradition having been requested by the Kingdom of Denmark in relation to two offences of smuggling quantities of cocaine on dates in June and November 1988 which said offences were alleged to have been committed on the high seas.

A number of issues were raised both at the hearing in the District Court as a result of which the order under s. 29(1) of the 1965 Act was made and also upon the hearing of the application under Article 40 in the High Court.

Upon the hearing of this appeal however the issues submitted on behalf of the applicant were confined to two net points. They are:

1. It was submitted that having regard to the provisions of article 7.2 of the European Convention on Extradition of 1957 (the convention) the extradition of the applicant was prohibited by reason of the fact that the offences in respect of which the request for extradition had been made were alleged to have been committed outside the territory of the Kingdom of Denmark and the law of this State does not allow prosecution for that category of offence when committed outside the territory of this State.

2. In the alternative and quite apart from the provisions of article 7.2 of the convention it was submitted that by reason of the fact that no offence was known to Irish law of the smuggling or handling of prohibited drugs if committed by an Irish citizen outside the territory of Ireland the offences in respect of which extradition was requested were not offences which were punishable under the laws of the State and the extradition of the applicant was accordingly prohibited by virtue of the provisions of s. 10 of the 1965 Act.

Relevant statutory provisions
The statutory provisions of particular importance to the issues which have been raised in this case are as follows. S. 8(1) of the Act of 1965 provides as follows:

Where by any international agreement or convention to which the State is a party an arrangement (in this Act referred to as an extradition agreement) is made with another country for the surrender by each country to the other of persons wanted for prosecution or punishment or where the government are satisfied that reciprocal facilities to that effect will be afforded by another country, the government may by order apply this part in relation to that country.

S. 8(3) provides as follows:

An order relating to an extradition agreement or an amendment thereof shall recite or embody the terms of the agreement or amendment and shall be evidence of the making of the agreement or amendment and of its terms.

S. 8(4) provides as follows:

An order applying this part in relation to any country otherwise than in pursuance of an extradition agreement may be made subject to such conditions, exceptions and qualifications as may be specified in the order.

S. 8(5) provides as follows:

Every extradition agreement and every order applying this part otherwise than in pursuance of an extradition agreement shall, subject to the provisions of this part, have the force of law in accordance with its terms.

S. 10 of the Act of 1965 provides as follows:

(1) Subject to subs. (2), extradition shall be granted only in respect of an offence which is punishable under the laws of the requesting country and of the State by imprisonment for a maximum period of at least one year or by a more severe penalty and for which, if there has been a conviction and sentence in the requesting country, imprisonment for a period of at least four months or a more severe penalty has been imposed.

(2) If a request is made for extradition in respect of an offence to which subs. (1) applies and the request includes also any other offence which is punishable under the laws of the requesting country and of the State but does not comply with the conditions as to the period of imprisonment which may be, or has been, imposed, then extradition may, subject to the provisions of this part, be granted also in respect of the latter offence.

(3) In this section references to an offence punishable under the laws of the State shall be construed as including references to an act which, if it had been committed in the State, would constitute such an offence.

By virtue of the Extradition Act 1965 (Part II) (No. 23) Order 1989 being SI No. 9 of 1989 having recited that the European Convention on Extradition the terms of which are set out in Part I of the Schedule to that order was done at Paris on 13 December 1957 and was ratified on behalf of Ireland on 12 July 1988 the government in exercise of the powers conferred on them by s. 8 of the Extradition Act 1965 made an order providing that Part II of the Act of 1965 should apply in relation to inter alia the Kingdom of Denmark.

Article 7 of the convention reads as follows:

Place of Commission

1. The requested party may refuse to extradite a person claimed for an offence which is regarded by its law as having been committed in whole or in part in its territory or in a place treated as its territory.

2. When the offence for which extradition is requested has been committed outside the territory of the requesting party, extradition may only be refused if the law of the requested party does not allow prosecution for the same category of offence when committed outside the latter party’s territory or does not allow extradition for the offence concerned.

Decision of the High Court
In the course of a reserved judgment Lavan J in the High Court concluded that the provisions of article 7.2 of the convention which he described in the judgment as the test of equivalent assumption of jurisdiction was specifically rejected by virtue of the provisions of the Act of 1965 and in particular by virtue of the provisions of s. 10(3) of that Act.

Submissions on the appeal
On behalf of the appellant the following submissions were made.

1. The Act of 1965 being an Act which subjects individuals to criminal procedures and provides for a power of arrest and detention pending extradition must be strictly construed in the sense that its provisions should not be construed so as to justify that detention and extradition unless they unambiguously so provide.

2. The combined effect of s. 8(1) and s. 8(5) of the 1965 Act was to incorporate into domestic law the terms of the convention and accordingly the provisions of article 7.2 of the convention can be relied upon by the applicant unless either expressly or by necessary implication they have been avoided by virtue of one or other of the provisions of Part II of the Act of 1965 subject to which the terms of the convention have the force of law.

3. It was contended that neither the provisions of s. 10(3) nor any other provision of the Act in any way expressly avoided the provisions of article 7.2 of the convention and was further submitted that there was no necessary implication from any of the provisions of the Act to exclude it.

With regard to s. 10(3) of the Act which was particularly relied on by the respondent the submission was that there is absolutely no reference to the question of extra territorial offences in that subsection. Further it was said that there is in general on the authorities a presumption against provisions concerning extra territorial criminal offences unless they are very explicitly set out in a statute. The purpose of s. 10(3) was said clearly to be to avoid what might otherwise be an unduly narrow definition of offence in general as contained in subs. (1) of the section.

Upon the assumption that article 7.2 does apply to this extradition, it was urged that even though expressed in a negative form it should be construed as mandatory and that once a court was satisfied as is not disputed in this case that the offence for which extradition was requested had been committed outside the territory of the Kingdom of Denmark and that the law in Ireland does not allow prosecution for such an offence when committed outside Ireland’s territory that a refusal of extradition was mandatory. In this context, reliance was placed upon the fact that in regard to s. 50 of the Act of 1965 the courts have consistently construed the provisions of subs. (2) providing that a direction under this section may be given by the High Court where the court is of opinion that certain matters have been established as being mandatory and not discretionary.

In the alternative to the last submission it was urged that even if article 7.2 did not apply to this extradition that the terms of s. 10(3) did not permit of the court concluding that the offence of smuggling drugs on the high seas which is the offence in this case was punishable under the law of this State, when clearly it was not.

The submissions made on behalf of the respondent were as follows:

1. The true interpretation of article 7.2 was that it was provided in the convention merely to give a choice to the State and in this context the organs of state which it was suggested were given the choice were the executive and the legislature as to whether or not to include such a provision in the application of the convention. The absence therefore of a repetition in Part II of the Act of 1965 of the terms of article 7.2 it was argued constituted an avoidance or decision not to accept that part of the convention. In this submission reliance was placed in particular upon the fact that the terms of article 7.1 are repeated in s. 15 of the Act of 1965 but no similar repetition occurs with regard to article 7.2.

2. In the alternative it was submitted that even if the provisions of article 7.2 assumed the force of law as a result of the order made by the government in SI No. 9 of 1989 it had such force subject only to the provisions of the Act of 1965 and that it was plainly inconsistent with the provisions of s. 10(3) and as such does not in effect come into or assume the force of law in this country.

3. The respondents did not contest the general fact that the combined operation of s. 8(1) and s. 8(5) of the Act of 1965 upon the making of the order contained in SI No. 9 of 1989 was to bring in the convention in general so as to have the force of law subject to the provisions of Part II of the Act of 1965.

The decision
I have come to the conclusion that the submissions made on behalf of the applicant are correct and must be accepted.

It is clear and of importance in this case that the Act of 1965 and the statutory instrument made pursuant to it incorporating the convention is a penal statutory code involving penal sanctions on an individual and must therefore be construed strictly as is contended in the sense that not by anything other than unambiguous provision should a person be subjected to detention and extradition. Viewed in this light, I must reject the contention that the existence in Part II of the Act of 1965 not only of s. 15 repeating the provisions of article 7.1 but of a number of other sections expressly repeating the provisions of other articles must be taken as an indication that the legislature intended to exclude articles which were not expressly repeated. Such a contention seems to me to set at naught the specific provisions of s. 8(5). If the only provisions of the convention which were in force in Ireland were those which are repeated in Part II of the Act of 1965 then the specific and express provision that the convention which is an extradition agreement within the definition contained in s. 8(1) should have the force of law subject to the provisions of Part II of the Act of 1965 would be meaningless and superfluous.

Furthermore, it is of importance with regard to this contention to emphasise that the provisions of Part II of the Act of 1965 not only apply as being as it were the dominant statutory provisions where they are inconsistent with the terms of an extradition agreement but also serve the second purpose of being a set of what might be described as basic requirements and guidelines for cases where the government being satisfied that appropriate reciprocal facilities will be afforded by another country apply Part II of the Act of 1965 to a request for extradition in a case where no convention or extradition treaty or agreement exists.

I reject the contention that s. 10(3) of the Act of 1965 is clearly or plainly inconsistent with the provisions of article 7.2. The first matter which is, in my view, of importance on this issue is the fact that if it were intended by this subsection to avoid or repeal the provisions of article 7.2 one would expect to find in it some reference to extra territorial offences in the requesting country which are not extra territorial offences in this State. It is of some significance that in the terms of the subsection the phrase used is committed ‘in the State’ whereas the matter which it is meant to be repealing speaks of territory of the requesting party and the territory of the requested party.

If as is contended on behalf of the respondent this subsection by necessary implication sets aside the provisions of article 7.2 one would expect that support for such a contention would at least be based on a conclusion that it could have no other apparent purpose. I am satisfied however that it has got a very clear and plausible apparent purpose which is to ensure that the provisions of s. 10(1) which speak of an offence punishable under the laws of the requesting country and of the State could not be too narrowly construed where for example, the offence named in the request from the requesting country could not be matched by any offence of a similar name in Ireland but the acts constituting the named offence would constitute an offence punishable by the laws of Ireland.

I am therefore quite satisfied that the provisions of article 7.2 of the convention are applicable to this case. I accept the submission that although expressed in a negative form they must be construed as being mandatory in effect. There are no grounds on which it is possible in the provisions of this sub-article of the convention to ascertain any basis consistent with justice in which a court would have as it were a discretion to refuse extradition under the circumstances provided for in article 7.2 in one case and to grant it in another. A decision of such a kind would it seems to me of necessity be arbitrary and having regard again to the fact that this is a penal statute and that the article of the convention concerned affords a clear protection in certain circumstances to an individual against the detention and extradition which is provided for in the scheme, I am satisfied that the court must grant that protection and would have no grounds consistent with justice to refuse it.

In these circumstances, I conclude that by virtue of the provisions of article 7.2 the extradition of the applicant is prohibited and that being so his present detention is not in accordance with law and that he should be discharged from custody.

It is not necessary for me to determine the alternative issue submitted on behalf of the applicant that even apart from article 7.2 of the convention, s. 10(3) would not be apt to make the offence in respect of which a request for his extradition was made one punishable by the laws of Ireland and in those circumstances I should not express any opinion on it.

O’Shea v Conroy

[1995] 2 ILRM 527 Flood J
This is a claim brought by the plaintiff on a special summons for an order for his release pursuant to s. 50 of the Extradition Act 1965 on the grounds that the offences named in two warrants issued in respect of him do not correspond with any offences under the laws of this State which are indictable offences or an offence or offences for which he is punishable on summary conviction by imprisonment for a maximum period of at least six months.

On 4 August 1994 a warrant (hereinafter referred to as warrant A) was issued by the Crown Court at Newington Causeway, London, SE1 6AZ, England to arrest the plaintiff on the following charge, namely, that Edward O’Shea also known as Edward Ned O’Shea, also known as Edward Joseph O’Shea stands indicted in the Inner London Crown Court on a charge of:

On a day between the 15 November 1992 and 15 December 1992 at 228 Wightman Road, London N8, England stole a Lloyds bank cheque book belonging to Eyodele Omozefe Omole

contrary to s. 1(1) of the Theft Act 1968.

The defendant was at all material times an assistant commissioner of the Garda Síochána. On 26 September 1994 he authorised the execution of the warrant in the State by any member of the Garda Síochána pursuant to Part III of the Extradition Act 1965 and in particular pursuant to s. 43 of the said Act. On 26 October 1994 by order of the Dublin Metropolitan District Court it was ordered that pursuant to s. 47(1) of the said Act substituted by s. 12 of the Extradition (Amendment) Act 1994 that the plaintiff be delivered into the custody of a member of the Metropolitan Police Force for the Inner City of London for subsequent conveyance for the Inner London Crown Court Sessions House, Newington Causeway, London SE1 6AZ.

In that order it was recited that it appeared to the district judge that the offence specified in the warrant corresponded with an offence under the law of this State which is an indictable offence to wit namely s. 2 of the Larcency Act 1916 as amended (simple larceny).

On 4 August 1994 another warrant was issued by the Crown Court for Inner London at Newington Causeway, London SE1 6AZ to arrest the plaintiff who then stood indicted before the said Inner London Crown Court on a charge of:

On 22 October 1993 at Morning Lane, London E9, England robbed [the plaintiff] Keith William Judd of a Ford transit van, registration number H797 CKJ and its contents including carpenter’s tools, a generator, an electric planer, an electric jig saw, a transformer, a skill saw, two drills, timber and door locks

contrary to s. 8 (1) of the Theft Act 1968.

The defendant who was Assistant Commissioner as aforesaid at the time authorised the execution of the said warrant in the State by any member of the Garda Síochána. And on 26 October 1994 the learned President of the District Court sitting in Dublin in the Dublin Metropolitan District Court made an order pursuant to s. 47(1) of the said Act substituted by s. 12 of the Extradition (Amendment) Act 1994 for the delivery of the plaintiff into the custody of a member of the Metropolitan Police Force for the city of London for conveyance to the Inner London Crown Court, Sessions House, Newington Causeway, London SE1 6AZ.

The plaintiff’s counsel relied upon the following authorities which were cited in court.

(1) State (Furlong) v. Kelly [1971] IR 132;
(2) Whyte v. Sheehan, High Court 1977 No. 75 Sp (Finlay P) 26 May 1977;
(3) Wyatt v. McLoughlin [1974] IR 378 and
(4) Wilson v. Sheehan [1979] IR 423.
The basic submission of the plaintiff’s counsel was that the meaning of the words ‘steal’ and ‘rob’ are not such as to establish the existence of any corresponding offences under Irish law where no further particulars whatsoever are given in relation to the offences alleged to have been committed by the plaintiff.

Walsh J in Wyatt v. McLoughlin [1974] IR 378 says (at p. 398):

For the reasons stated in Furlong’s case it is necessary that either the warrant or some other document accompanying it should set out sufficient information as to these acts to enable the courts of the State to identify the corresponding offence, if any, in our law. It cannot be sufficient simply to use the name by which the crime is known, or alleged to be known, in the requesting country even though that same name may be used in this country as the name of the crime, because the acts complained of, although having identical names, may constitute quite different criminal offences in different countries or, indeed, no offence at all in one of them.

Henchy J in Wilson v. Sheehan [1979] IR 423 (at p. 428) dealing with this particular passage says:

What was being stressed in that passage was that the required correspondence of offences is not shown by the mere proof that the offence specified in the warrant has the same name as that of an offence in this State. It is the essential factual ingredients that determine whether two offences have the necessary correspondence. If an offence is specified in the warrant merely by the name by which it is known in the requesting State, it does not follow that because there is an offence in this State which goes by the same name, the two offences correspond with each other. They may be crucially different in essence. To show the necessary correspondence — as was held in State (Furlong) v. Kelly [1971] IR 132 and in England in R. v. Metropolitan Police Commissioner, ex parte Arkins [1966] 1 WLR 1593 dealing with the corresponding provisions in the Backing of Warrants (Republic of Ireland Act 1965) — it is necessary for the specification of the offence in the warrant (or in the warrant and its attendant documentation) to go further and identify the offence by reference to the factual components relied on; it is only by looking at those components that a court in this State can decide whether the offence so specified (regardless of what name is attached to it) would constitute, if committed in this State, a corresponding criminal offence of the required gravity.

When it comes to the words in the warrant by which the factual content of the specified offence is identified, the correct rule is that those words should prima facie be given their ordinary or popular meaning unless they are used in a context which suggests that they have a special significance. The reason for that rule is that, when statutes or other public or formal documents directed to the public at large, or to any member of the public at large, are being interpreted, it is to be assumed, in the absence of counter indication, that the words used in such document are being used in their popular rather than any specialised or technical sense.

So also with the particulars of an offence in a formal written charge. The primary purpose of the particulars is to enable the member of the public who is being charged to identify the conduct that is being alleged against him as a criminal offence.

Turning to the warrants in this case.

(1) Warrant A in its particulars says the plaintiff stands indicted on a charge of ‘theft on a day between 15 November 1992 and 15 December 1992 … London … England, stole a Lloyds bank cheque book belonging to …’

Stole is the past tense of the verb to steal. The Oxford concise dictionary says:

(a) take another person’s property illegally

(b) take property without right or permission with the intention of not returning it.

In my opinion in the ordinary meaning of the word ‘stole’ it conveys that someone took another person’s property without right or permission with intention of not returning it. In my opinion a district judge taking the ordinary meaning of the words ‘stole’ or ‘to steal’ could inform himself that it involved factual particulars which would constitute simple larceny under s. 2 of the Larceny Act 1916 as amended. And that there accordingly was a correspondence of offence in this country as with the requesting country.

In the circumstances I refuse the relief sought in respect of this warrant.

In relation to warrant B the particulars therein that the plaintiff ‘on 22 October 1993 at … London, E9, England robbed Keith William Judd of a Ford transit van registration number H797 CKJ and its contents including … timber and door locks’. Henchy J in Wilson v. Sheehan at p. 430 says:

since the word ‘rob’ in ordinary usage means deprive a person of property unjustifiably by force.

In my opinion a district judge could inform himself from the words used in their ordinary meaning that it was intended to convey to an ordinary member of the public that the plaintiff had deprived a person of property unjustifiably by force. In my opinion that would be an adequate description to see a corresponding offence in this jurisdiction of robbery with violence. Accordingly, I would refuse the plaintiff the relief sought in these proceedings and confirm the order of the learned President of the District Court in both instances.

Casey v. Assistant Garda Commissioner

[1997] IEHC 67 (19th April, 1997)
THE HIGH COURT
1996 No. 355 S.P.
IN THE MATTER OF SECTION 50 OF THE EXTRADITION ACTS 1965/1994
BETWEEN
MICHAEL CASEY
APPLICANT
AND
ASSISTANT COMMISSIONER OF AN GARDA SIOCHANA, NOEL CONROY
RESPONDENT

Judgment of Mr. Justice Morris delivered on the 19th day of April, 1997.

1. This matter comes before the Court by way of a special summons in which the Plaintiff claims an Order for his release pursuant to Section 50 of the Extradition Acts, 1965/1994.

2. The uncontested facts of the case are that the Applicant was arrested on foot of a request for his extradition to England on foot of a warrant for his arrest issued on the 9th February, 1996 by Glenys Game, a Justice of the North East London area. The Applicant was brought before the Dublin Metropolitan District Court on 22nd May, 1996 and was remanded by the Court in custody until the 29th May, 1996. Bail was set by Order of the High Court on 29th May, 1996.

3. The matter came before the District Court on 12th June, 1996 and following a hearing of evidence and legal submissions the learned District Judge ordered the extradition of the Applicant.

4. The Applicant claims that this Order was bad on the grounds that the offence concerned in the extradition proceedings does not correspond with any offence under the law in this jurisdiction.

5. The warrant details the alleged offence on which extradition is sought in the following terms:-

“Between the 12th day of June, 1994 and the 16th June, 1994 at Dagenham, Essex, England and elsewhere attempted dishonestly to obtain from Douglas Burchell £10,000 with the intention of permanently depriving Douglas Burchell thereof by deception, namely by falsely representing that a fair and reasonable price for tarmac work at 50 Butler Road, Dagenham, Essex, England was £10,000 or thereabouts contrary to Section 1(1) of the Criminal Attempts Act, 1981”.

6. Counsel for the Respondent submits that the corresponding offence in this jurisdiction is the offence of attempting to obtain money by false pretences.

7. I accept as the law that part of the Judgment of Walsh J. in Wyatt -v- McLoughlin 1974 I.R. 378 where at p.395 he says:-

“The District Court here has to be satisfied that an offence laid in a warrant sent here and endorsed for execution is so stated as to be recognisable as corresponding with an offence under our law. It must, therefore, contain such essential factual material as may be necessary to recognise whether or not the Acts complained of are ones which, if committed in this country, would amount to a criminal offence”.

8. It is clear from the Judgment of Walsh J. that a Court in Ireland in considering extradition cases is not concerned with the construction of English Law and its sole concern is to be “satisfied that the Acts constituting the particular offence for which extradition is sought are Acts which, if committed within this jurisdiction, would constitute a criminal offence”.

9. In my view, therefore, an appropriate way in which to carry out this examination is to identify the elements of the offence in this jurisdiction with which it is alleged the offence in England corresponds and having done so ascertain if these ingredients are reflected in the Acts identified in the alleged offence.

10. The Irish offence which, it is alleged, corresponds to Section 1(1) of the Criminal Attempts Act, 1981 in England is attempting to obtain money by false pretences contrary to Common Law.

11. The substantive offence of obtaining money by false pretences is created by Section 32 of the Larceny Act, 1916 which, paraphrased, reads:-

“Every person who by any false pretence (a) with intent to defraud obtains from any other person…..money…..shall be guilty of a misdemeanour and on conviction thereof shall be liable to imprisonment for a term not exceeding five years”.
12. Accordingly, it appears to me that the offence of attempting to obtain money by false pretences contrary to Common Law has as its ingredients:-

(a) the use of false pretences;
(b) an intent to defraud another of money;
(c) the obtaining, or attempt to obtain the payment of money to him or to his use.
13. Comparing these ingredients with the alleged facts in the warrant there is:-

(a) the element of deception;
(b) the element of false representation;
(c) the element of dishonesty;
(d) the intention to permanently deprive Douglas Burchell of the money.
14. In my view, all the ingredients of the offence in this jurisdiction exist and are to be found in fact alleged in the offence alleged in the warrant. In the words of Mr. Justice Walsh in Wyatt -v- McLoughlin I find that:-

“The offence laid in the warrant sent here and endorsed for execution is so stated as to be recognisable as corresponding with an offence under our law (and) it contains such essential factual material as is necessary to recognise whether or not the Acts complained of are ones which, if committed in this country, would amount to a criminal offence”.

15. I find that the crime alleged does contain these facts.

16. It is proper that I should refer to the Affidavit filed in this matter sworn by Detective Sergeant Clive Ingram on 19th February, 1996 as significant argument as been addressed to me in relation to this Affidavit. In my view, this Affidavit relates entirely to the strength of the case against the Accused and does not assist the Court in determining whether the offence alleged in the warrant corresponds to an offence in this jurisdiction.

17. I accordingly refuse the relief sought in the summons.

The State (Furlong) v. Kelly

O’Dalaigh C.J.[1971] IR 132
Supreme Court

O’DALAIGHC.J. :
29 July

In respect of offences alleged to have been committed in England, extradition is governed by the provisions of Part III of the Extradition Act, 1965. The proceedings are conducted in the District Court, and the order which the District Justice makes under s. 47, sub-s. 1, of the Act of 1965 is for the delivery of the accused at some convenient point of departure from the State into the custody of the police force of the place in which the warrant has been issued for his delivery to that place, and for his remand until so delivered. Sub-section 2 of s. 47 provides, however, that an order shall not be made under sub-s. 1 if it appears to the court that the offence specified in the warrant does not correspond with any offence under the law of the State which is an indictable offence or is punishable on summary conviction by imprisonment for a maximum period of at least six months.
In the present case the offence specified in the warrant is that the prosecutor, Michael Furlong, between the 20th and 21st day of November, 1969, at St. Ives in the County of Huntingdon and Petersborough “did, having entered the office of A.R.C. (Concrete)
Ltd. as a trespasser, steal therein an Autorite ticket machine of the value of Â£39, the property of the said A.R.C. (Concrete) Ltd., contrary to section 9 of the Theft Act, 1968.” Counsel for the Attorney General has contended that the offence under the law of the State which corresponds with the offence specified in the warrant is simple larceny, which is an indictable offence. This contention has been challenged by counsel for the prosecutor, chiefly on the ground that there is no offence under the law of the State corresponding to the offence alleged in the warrant.
It is unnecessary to set out here how the prosecutor’s case came before the President; that appears from the judgment in this matter which I delivered on the 9th March, 1970. In that judgment, with which Mr. Justice Budd and Mr. Justice FitzGerald agreed, I called attention to the Attorney General’s assurance5 that he will undertake to be responsible for the fees of counsel and solicitor assigned by the Court where an applicant is appearing in person in a habeas corpus matter and the Court considers that a question of law requires to be argued. The learned President, however, did not consider it necessary to assign counsel to the prosecutor; according to the latter, the judge stated that he would not waste money on a solicitor.
The substantive part of the President’s report of his judgment was that the question to which this Court called attention (as arising for consideration in the High Court), arose for consideration in the District Court; that s. 47 of the Act of 1965 had entrusted the decision thereon to the District Justice; and that he must be presumed to have decided it so far as it was necessary to decide it. The President added that he did not think that the High Court had any right to decide the question for itself or to review any decision of the District Justice except, perhaps, in a case where his decision was manifestly not capable of being upheld. This, in my opinion, is a wholly unacceptable view of the duty of the High Court in this matter.
The application before the President was for an order of habeas corpus pursuant to s. 48 of the Act of 1965. The duty of the court in such a case is no less than in any other habeas corpus application: it is forthwith to enquire into the complaint and to order the release of the person detained unless satisfied that he is being detained in accordance with law.6 Whether there is under the law of the State any offence corresponding to the offence specified in the warrant is not a matter upon which the District Justice could make a determination binding on the High Court, as should have been apparent from the judgment of this Court of the 9th March, 1970. That question is a question of law, and the correctness or otherwise of the District Justice’s determination thereon is clearly open to review in the High Court and, on appeal, in this Court.
To ascertain whether simple larceny corresponds with the offence under s. 9 of the Theft Act, 1968, which is specified in the warrant (as is asserted by counsel on behalf of the Attorney General) requires a careful analysis of both offences. Let us take these offences in inverse order. Larceny, or simple larceny as it is sometimes called, is a common-law offence. Section 2 of the Larceny Act, 1916, says that stealing for which no special punishment is provided under that Act, or any other Act for the time being in force, shall be simple larceny and a felony punishable with penal servitude for any term not exceeding five years. On this account it is customary (though not strictly accurate) to charge larceny on indictment as”contrary to section 2 of the Larceny Act, 1916.” This question was discussed in my judgment in The State (Simmonds) v. Governor of Portlaoise Prison (Supreme Court25th June, 1968). It is for present purposes of no importance as to whether larceny is regarded as a common-law offence or as a statutory offence. The statutory definition which we find in s. 1 of the Act of 1916 makes no change in the law but merely harmonises the accepted definitions of larceny at common law with certain statutory provisions relating to bailees and part owners: see Archbold’s Practice in Criminal Cases, 28th ed. at page 528.
It will be convenient to take the definition contained in s. 1, sub-s. 1, of the Act of 1916:”A person steals who, (i) without the consent of the owner, (ii) fraudulently and (iii) without a claim of right made in good faith, (a) takes and (b) carries away (c) anything capable of being stolen (iv) with intent, (v) at the time of such taking, (vi) permanently to deprive the owner thereof.” I need not advert to the proviso with regard to bailees and part owners. Paragraph (i) of s. 1, sub-s. 2, of the Act of 1916 provides that the expression “takes” includes obtaining the possession by trick, intimidation, mistake and by finding; taking by finding occurs where the finder at the time of finding believes that the owner can be discovered by taking reasonable steps. Paragraph 2 of the sub-section provides that the expression “carries away” includes any removal of anything from the place which it occupies but, in the case of a thing attached, only if it has been completely detached. I may pass over the definition of “owner.” Sub-section 3 provides that everything that has value and is the property of any person, and if adhering to the realty then after severance therefrom, shall be capable of being stolen. There follows a proviso which provides (inter alia) that growing things attached to the realty shall not be capable of being stolen by the person who severs the same from the realty unless after severance he has abandoned possession thereof.
I turn next to s. 9 of the English Act of 1968. Sub-section 1 of that section states that “A person is guilty of burglary if . . . (b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.” Stealing is defined in the Act of 1968 by reference to theft. Section 1, sub-s. 1, provides that a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and that “thief” and “steal” shall be construed accordingly. Section 1, sub-s. 3, adds that the five following sections (ss. 2-6) shall have effect as regards the interpretation and operation of s. 1 and, except as otherwise stated, shall apply only for the purposes of section 1.
Section 2 of the Act of 1968 limits the meaning of the term “dishonestly.”Sub-section 1 of that section provides that a person’s appropriation of property belonging to another is not to be regarded as dishonest (a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or (b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or (c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
Section 3, sub-s. 1, provides that any assumption by a person of the rights of an owner amounts to an appropriation and that this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as an owner. It is unnecessary, in the context of this case, to say anything about the modification introduced by s. 4, sub-s. 3, in respect of mushrooms growing wild, or flowers, fruit or foliage growing wild, when picked for reward, sale or other commercial purpose. Sections 4 and 5 are not relevant.
Lastly, there are the provisions of s. 6, as follows:
“6.(1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.
(2) Without prejudice to the generality of sub-section (1) above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other’s authority) amounts to treating the property as his own to dispose of regardless of the other’s rights.”
I now propose to examine the ingredients of the English offence by reference to the several ingredients of simple larceny as defined in our law.
(i) . . . without the consent of the owner:Under this head the English Act is less exacting, in that in certain cases where in England there would be an acquittal (i.e., no offence) there would be a conviction (i.e., an offence) in Ireland: see s. 2, sub-s. 1 (b), of the Theft Act, 1968.
(ii) . . . fraudulently:The word “dishonestly” is an equivalent.
(iii) . . . without a claim of right made in good faith:The observation made under (i), supra, applies here also: see s. 2, sub-s. 1 (a) of the Act of 1968.
(iv) . . . with intent . . . permanently to deprive the owner thereof:Under this head the English Act is more exacting, in that in certain cases where in England there would be a conviction (i.e., an offence) there would be an acquittal (i.e., no offence) in Ireland: see s. 6 of the Act of 1968.
(v) The intent permanently to deprive the owner of the property being formed “at the time of such taking”:The observation made under (iv), supra, applies here also: see s. 3, sub-s. 1, of the Act of 1968.
Under heads (iv) and (v) stealing under the Act of 1968 may diver from larceny, with the result that certain acts which in England would constitute “stealing” would not be regarded as constituting larcenies in Ireland; that is to say, they would not be offences in Ireland. The differences appearing under heads (iv) and (v) are relevant in the present case. The warrant which the District Justice ordered to be executed, for anything which the warrant itself or any accompanying document shows, may be in respect of acts which would not constitute larceny or any other offence under the law of the State.
A District Justice cannot order extradition unless the offence specified in the warrant is demonstrated to correspond with an offence under the law of the State. The position in this case is that we do not know, and the District Justice did not know, whether the offence in question here is or is not an offence under the law of the State. In this instance the determination of that matter must depend on the evidence against the accused. It may well be that the evidence in the hands of the English police (if accepted) would establish that there was an intent permanently to deprive the owner of the property and that such intent was formed at the time of the taking. The District Justice may not act on such a possibility or even probability; he must know that such is the case. His jurisdiction to make an order for delivery depends upon this being shown. It was not shown in this instance. In my opinion his order was therefore made without jurisdiction. In consequence the prosecutor’s detention is unlawful and he should forthwith be set at liberty. In Rex v. Governor of Holloway Prison, ex parte Siletti 7 Darling J. said:”. . . in these extradition cases the Court has to ascertain that the offence charged is an offence not only by the law of Scotland, but also by the law of the foreign country which applies for the extradition; but in such a case the question would really be one of jurisdiction.” The case arose under the Extradition Act, 1870, and s. 10 of that Act is in these terms:”In the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorising the arrest of such criminal is duly authenticated, and such evidence is produced as (subject to the provisions of this Act)would, according to the law of England, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England, the police magistrate shall commit him to prison, but otherwise shall order him to be discharged.”
The purpose of s. 47 of the Extradition Act, 1965, is to ensure that no one in this jurisdiction shall be ordered to be delivered up to be extradited in respect of an offence alleged to have been committed in England etc. unless it is shown that the offence in question corresponds to an offence under the law of the State, that is to say that he could, if he had committed the same acts in this jurisdiction, have been charged in respect thereof. One may usefully compare the parallel provision in Part II of the Act of 1965. Section 10, sub-s. 1, provides:”(1) Subject to subsection (2), extradition shall be granted only in respect of an offence which is punishable under the laws of the requesting country and of the State by imprisonment for a maximum period of at least one year or by a more severe penalty . . .” Sub-section 3 states:”(3) In this section references to an offence punishable under the laws of the State shall be construed as including references to an act which, if it had been committed in the State, would constitute such an offence.”Attention may also be called to the language of Article 2 of the European Convention on Extradition upon which Part II of our Act of 1965 is based; paragraph 1 of Article 2 provides that”Extradition shall be granted in respect of offences punishable under the laws of the requesting Party and of the requested Party by deprivation of liberty or under a detention order for a maximum period of at least one year or by a more severe penalty.”
Where, as in the present case, the offence specified in the warrant does not arise under a pre-Treaty statute which has been continued in force in Ireland, the District Court is put on inquiry by s. 47, sub-s. 2, of the Act of 1965. The basic inquiry is to discover whether the several ingredients which constitute the offence specified in the warrant, or one or more of such ingredients, constitute an offence under the law of the State and, if they do, whether that offence (the “corresponding offence”) is an indictable offence or, if not, whether it is punishable on summary conviction by imprisonment for a maximum period of at least six months. As to the first limb of the inquiry, the position may be illustrated algebraically as follows. If the English offence consists of, say, four essential elements a + b + c + d, then a corresponding Irish offence exists only if it contains either precisely these same four essential elements or a lesser number thereof. If the only Irish offence that can be pointed to has an additional essential ingredient (that is to say, if the Irish offence may be defined as a + b + c + d + e), then there is no corresponding Irish offence to satisfy the requirements of s. 47, sub-s. 2, of the Act of 1965 for the simple reason that, ex hypothesi, conduct a + b + c + d falls short of being an offence under Irish law or, in plainer words, is not an offence. It is fundamental to extradition that no one shall be extradited for acts or omissions (the offence alleged in the warrant) which, if repeated within the State, would not offend against our law.
When the Act of 1965 was passed our statute criminal law was, in very large measure, the same as that of the countries to which Part III of that Act applies and, accordingly, no difficulty arose in saying whether or not there was a corresponding offence under the law of the State. The mere statement of the offence in most cases made a perfect equation. However, the enactment of the Theft Act. 1968, has created difficulties which could not have been foreseen in the year 1965. It is now idle to speculate whether, if the Theft Act had been in force in 1965, the Oireachtas would have preferred to specify in a schedule nominatim the offences in respect of which extradition was to be granted. Until some such simple formula is law the District Court and, on a habeas corpus application, the High Court and, on appeal, this Court must prepare themselves for the difficulties of determining what offence (if any) is the corresponding offence under the law of the State.
I should add that I concur with what Mr. Justice Walsh says with regard to the third matter referred to in his judgment, namely, the direction in the warrant to hand over the prosecutor to a duly authorised member of the police force of England and Wales.

WALSH J. :
The first matter which falls for decision in this appeal is the question of the function of the District Justice in relation to deciding whether or not the offence specified in the warrant does or does not correspond with any offence under the law of this State. I agree with the view expressed by the Chief Justice that this is a question of law and that the correctness or otherwise of the District Justice’s determination on this point is clearly open to review in the High Court and, on appeal from the High Court, in this Court. In my view, the District Justice’s order made under s. 47 of the Extradition Act, 1965, should contain a statement of the District Justice’s finding that the offence specified in the English warrant does correspond with an offence under the law of this State, and should set out the offence which, in his opinion, is the corresponding offence under the law of this State. If it should appear, on application to the High Court for an order of habeas corpus, that the offence under the law of this State found by the District Justice is not in fact a corresponding offence under the law of this State, I do not think that such a position would be fatal to the validity of his order provided that it could be shown in the High Court or on appeal in this Court, as the case may be, that the offence in the warrant did correspond with some offence under the law of this State. In the present case there is nothing on the face of the District Justice’s order to indicate that he made any examination or determination in respect of this matter and on that ground I think the order of the District Justice is bad.
However, that does not dispose of the issues raised in this case which are of fundamental importance. The next point which calls for consideration is how the District Justice is to ascertain and determine what is the corresponding offence under the law of this State. I do not for a moment think that the Act ever contemplated that a District Justice or indeed the High Court would be called upon in such cases to construe foreign law and indeed it would be manifestly impracticable to expect every District Justice in the country to undertake such a task even if he were competent to do so. There is a way of proving foreign law and that is by the expert testimony of a person who is qualified as a legal practitioner in the country whose law is in question. In the present case the offence appearing in the English warrant is an offence which is alleged to be a contravention of an English Act, namely, the Theft Act of 1968. It is to be borne in mind that the warrant in question, like all other warrants of this kind, is issued primarily for execution within the jurisdiction of the country wherein it is issued and a simple statement of the offence referring to the local statutory provision, if it be a statutory offence, is probably quite sufficient in respect of execution in that country. However, different considerations arise where the warrant is sent to this country for execution. The function of the District Justice is to examine the documents set before him and to see whether there is a sufficient statement of the particulars of the ingredients of the offence alleged to enable him to bring to bear on them his knowledge of the law of this State so that he may determine whether the acts alleged against the prisoner would constitute an offence under the laws of this State. It appears to me to be necessary that, before a District Justice can enter upon his determination of this matter, either the warrant itself must contain sufficient particulars of a factual nature setting out the ingredients of the offence alleged or it should be accompanied by an affidavit by the prosecuting authority, or a duly authorised officer of the prosecuting authority, setting out the particulars of the facts complained ofsomewhat as the particulars of offences appear in a count on an indictment under our law. A statement of the offence as such may be quite uninformative. Undoubtedly it is true that in respect of statutory provisions or common-law offences which were common to this country and other countries, under identical statutory provisions or identical common law at the time of the setting up of the State, there may be little difficulty because the District Justice will be versed in the law. But in respect of any offence created outside this jurisdiction subsequent to the setting up of this State the position is entirely different and it becomes immediately a question of foreign law. For this reason I do not find it necessary to enter into any examination of the Theft Act in England as, for the reasons I have given, I do not believe that that would be the concern of the District Justice in this case.
However, I am satisfied that the material set out in the warrant sent here for backing is insufficient to enable the District Justice to determine the question notwithstanding that the word “steal”appears in it. The word cannot be divorced from the reference to s. 9 of the English Act of 1968. If it were sought to show that this corresponded, for example, to simple larceny under our law, then either the statement of the offence in the warrant or the appropriate accompanying evidence should inform the District Justice that the prosecutor is accused of taking an object without the consent of the owner fraudulently and without a claim of right made in good faith and carrying away the object in question with the intention of permanently depriving the owner of that object. I have merely given this as an illustration of what I have been referring to because such a statement of particular facts would instantly enable a District Justice to recognise it as the offence of simple larceny in our law. Similar statements of particular facts in different types of cases may disclose to the District Justice that what is being alleged would amount to some other form of larceny or housebreaking or burglary or robbery as the case may be, or indeed any offence under our law. On the other hand the statement of facts would also enable the District Justice to immediately detect the absence or presence of a particular ingredient which would enable him to determine, if that were the case, that the facts alleged did not constitute an offence under our law. In the present case, for the reasons I have given, I am of opinion that the statement of offence as it appeared before the District Justice was insufficient to enable him to arrive at a determination upon the matter, and that on this ground also his order is bad.
The third point which arises is the one wherein he directed that the prisoner be handed over to a duly authorised member of the police force of “England and Wales.” Part III of the Act of 1965 indicates at s. 41 that that part of the Act applies in relation to”each of the following places, namely, Northern Ireland, England and Wales, Scotland, the Isle of Man and the Channel Islands.” In my view the purpose of s. 41 is to distinguish the provisions in the Act of 1965 for the endorsement or execution of certain warrants from the provisions for extradition proper which are contained in Part II of the Act. Section 41 provides that such endorsement or execution of warrants is applicable only in relation to the places named. It appears to me that the form of order used in the District Court is erroneous in that it has translated the terminology of s. 41 to s. 47, sub-s. 1, of the Act of 1965. Section 47, sub-s. 1, provides that where the District Justice makes his order for the delivery of the prisoner he makes it for delivery into the custody of “a member of a police force of the place in which the warrant has been issued . . .”The warrant in question in this case clearly shows on its face that it was issued for execution to a particular police force which in fact happens to be geographically situated in the region known as England and Wales but which is undoubtedly not the police force of England and Wales. It is a matter of common knowledge that in England, for example, there are dozens of police forces and that there is no national police force as there is in this country.
Therefore, if a warrant comes to this country for execution and it has been issued originally for execution to the police force of the London Metropolitan area or the police force of some particular administrative area in England or in any other part of the territories covered by s. 41 of the Act of 1965, it is the function of the District Justice to direct the delivery of the prisoner into the custody of a member of that police force and not merely into the custody of a member of any police force in any of the regions mentioned in section 41. The order made by the District Justice in this case did not do so but simply directed the delivery of the prisoner into the custody of a duly authorised member of “a police force of England and Wales” who might be a member of any one of dozens of police forces. In this case the order should have directed the delivery of custody to a duly authorised member of the police force of Mid-Anglia which is the police force to which the warrant was originally directed for execution by the English court that issued the warrant. For this reason also I am of opinion that the District Justice’s order is bad. For these reasons I am of opinion that the appeal should be allowed and that the order for extradition should be discharged.

BUDD J. :
I agree with the judgments delivered by the Chief Justice and by Mr. Justice Walsh.

FITZGERALD J. :
It appears to me that the following three matters have to be decided by the Court in relation to this appeal.
1. Whether the offence specified in the English warrant corresponds with any offence under the law of this State which is indictable or punishable on summary conviction by imprisonment for a maximum period of at least six months.
2. Whether the order of the District Justice must recite that the Justice has considered the matter and is satisfied that the English offence corresponds with an offence under Irish law.
3. Whether the order of the District Justice, which directed the delivery of Furlong into the custody of a duly authorised member of a police force of England and Wales, is a sufficient compliance with the requirements of s. 47, sub-s. 1, of the Extradition Act, 1965.
The first question arises in relation to s. 47 of the Act of 1965. Section 47 is in Part III of the Act which applies to extradition from this country to the “places” specified in s. 41 of the Act. Those places are Northern Ireland, England and Wales, Scotland, the Isle of Man and the Channel Islands. Part II of the Act, which deals with extradition generally, has no application to extradition from this country to the “places” specified in section 41. There are material differences between the requirements of Part II and those of Part III, particularly in relation to the production of evidence of the commission of the alleged offence; this is required under Part II but it is not required under Part III with which we are concerned in this case.
The English warrant, which is the basis of the application for extradition, was issued on the 6th February, 1970, by a Justice of the Peace sitting at St. Ives in the County of Huntingdon and Petersborough in the Petty Sessions Division of Hurstingstone, and it is directed to the Constables of the Mid-Anglia Constabulary. A perusal of the warrant shows that Michael Furlong was a person in respect of whom the Justice of the Peace had received an information on oath by a Detective Sergeant Hammond that Furlong “did, having entered the office of A.R.C. Concrete Limited as a trespasser, steal therein an Autorite ticket machine of the value of Â£39 the property of the said A.R.C. Concrete Limited contrary to section 9 of the Theft Act, 1968.” In my opinion the gravamen of the complaint is the stealing of the machine. The entering of the office and the fact of being a trespasser therein are presumably matters to be proved, in addition to the stealing of the machine, in any successful prosecution under s. 9 of the Theft Act, 1968.
Stealing property in this country is an indictable offence both at common law and under the Larceny Act, 1916. In my opinion a comparison between the details in the indictments which could, or should, be laid against an accused person in England on the one hand, and in this country on the other, is irrelevant. I consider that the question of whether the offence specified in the warrant has, or has not, a corresponding offence in this country should be tested in relation to the action of the person accused. There appears to me to be no possible ambiguity or doubt about the ordinary meaning of the word “steal.” As I have stated above, it is apparently required by s. 9 of the English Act of 1968 that there be proof of entry and of being a trespasser, as well as the stealing, in order to secure a conviction. In this country stealing is an offence without such additional proofs.
Is larceny here an offence which corresponds to that dealt with in s. 9 of the English Act? I consider it material to have regard to the objects of Part III of the Extradition Act, 1965, and of its English equivalent which is the Backing of Warrants (Republic of Ireland) Act, 1965. In my opinion, it is clear that the two Acts have a common purpose which is the extradition from one jurisdiction to the other of persons charged with ordinary criminal offences that are properly triable where the offence is alleged to have been committed. In both statutes extradition is prohibited in respect of offences of a fiscal character, offences against military law and political offences. Subject to these exceptions, I am satisfied that actions alleged against any person which, if proved, amount to a criminal offence in each country, irrespective of how a charge may be framed, require the operation of the extradition procedure to be applied. In my view, the offence specified in the English warrant corresponds to the offence of larceny in this country.
On the second question I am of opinion that the President was not correct in holding himself bound by the finding of the District Justice. The point, being one of law, was open to him and is open to this Court to decide. In my opinion it is not necessary for the District Justice’s order to recite his having considered and determined that the offences correspond: see The King v. Dix 8. With regard to the third question, sub-s. 1 of s. 47 requires delivery to be made into the custody of a member of a police force (not of thepolice force) of the place in which the warrant was issued. I consider that the word “place” in the section has the same meaning as it has in s. 41 and that in this instance it means England and Wales. In my view the District Justice’s order was correct and Furlong should be extradited.

MCLOUGHLIN J. :
The facts of this case have been already fully stated in the judgments delivered by other members of this Court and I need not repeat them. In my opinion, in determining whether an order under ss. 47 & 52 of the Extradition Act, 1965, should be made, a District Justice is not required to satisfy himself as to the law of the “place”(England and Wales, or as may be) where the offence is alleged to have been committed. He is entitled to look at the description of the offence in the foreign warrant to ascertain if the offence so described is one which does not correspond with an offence under the law of this State which is an indictable offence or is punishable on summary conviction by imprisonment for a maximum period of at least six months. If it appears to the District Justice that the offence in the warrant does not correspond with an offence under the law of the State, then he does not make the committal order.
The offence in the warrant alleges that Furlong did “steal . . . an Autorite ticket machine of the value of Â£39, the property of A.R.C. (Concrete) Ltd.” In my view, the act so described corresponds with the offence known in our law as simple larceny, and so justified the District Justice in issuing the committal warrant.
The direction given in the District Justice’s order for delivery of the accused “into the custody of a duly authorised member of a Police Force of England and Wales” is challenged as being insufficient. The only view I wish to express on this matter is that it would be more appropriate and more conformable with the foreign warrant to substitute for the words “a duly authorised member”more precise words, viz.: “a constable of Mid-Anglia Constabulary a police force of England and Wales.” I would not invalidate the committal order for this lack of precision. I would uphold the order of the District Justice.

Wyatt v. McLoughlin

Finlay J.

[1974] IR 378

FINLAY J. :
14 Nov.

This is a claim brought by the plaintiff pursuant to s. 50 of the Extradition Act, 1965, on special summons for a declaration3 that the charge, the subject matter of an order made by the District Court on the 5th September, 1973, does not correspond with any offence under Irish Law, and for a declaration pursuant to the provisions of the section that the said order of the Justice of the District Court does not comply with the provisions of s. 47 of the Act of 1965 and is therefore invalid.
The plaintiff was brought before the District Court at Cork City on the 5th September, 1973, on foot of a warrant dated the 21st August, 1973, which alleged that”on the 27th October, 1972, in the county borough of Stockport, England, he did fraudulently and without claim of right made in good faith take and carry away a Ford tipper lorry registered number ONE 219H of the value of £3,000 the property of Allinson Limited, without the consent of the owner thereof and with the intent at the time of such taking permanently to deprive the said owner of it and did thereby steal the said lorry contrary to section 1 of the Theft Act, 1968.” By order of the 5th of September, 1973, the District Justice ordered the delivery of the plaintiff at Cork Airport into the custody of a member of the Cheshire Constabulary for conveyance to the Magistrates Court, Warren Street, Stockport, Cheshire. In the order so directing, the following recital occurs: “and whereas it appears to me that the offence specified in the said warrant corresponds with an offence under the law of the State which is an indictable offence, to wit, contrary to the Larceny Act 1916.”
Two questions arise as to the validity of this order of the District Justice. First, there is the challenge made on behalf of the plaintiff upon the grounds that the offence, as set out in the warrant, does not correspond with an indictable offence known to the law of this State and that the finding by the District Justice to that effect was wrong and that, therefore, his jurisdiction to make the order under s. 47 of the Act of 1965 did not exist. Secondly, there is the point raised by me at the hearing as to whether the recital which I have just quoted is a bad or inadequate recital because it does not specify the offence under the Larceny Act, 1916, to which the offence specified in the warrant corresponded in the opinion of the District Justice; if that recital is defective or inadequate, there is the subsidiary question as to whether that affects the validity of the order made by the District Justice. I will deal with the latter question first.
Section 47, sub-s. 1, of the Act of 1965 provides4 for the making of an order by the District Court for the delivery of a person named or described in a warrant at some convenient point of departure from the State into the custody of a member of the police force of the place in which the warrant has been issued; and sub-s. 2 of that section provides that an order should not be made under sub-s. 1 if it appears to the court that the offence specified in the warrant does not correspond with an offence under the law of the State which is an indictable offence, or is punishable on summary conviction by imprisonment for a maximum period of at least six months. It is of some importance that the provisions of s. 47, sub-s. 2, are negative in their terms and are expressed as a prohibition against the making of an extradition order where the District Justice is satisfied that the offence in the warrant does not correspond with an offence of a specified type under the law of the State.
I am informed by counsel that prior to the decision of the Supreme Court in The State (Furlong) v. Kelly 5the form of order under s. 47 which was provided for use in the District Court contained no provision for a recital of any consideration or decision by the District Justice of the question as to whether the offence charged corresponded with an indictable offence under the law of the State. In the judgment of Mr. Justice Walsh in that case, which was one of the majority judgments of the Supreme Court, he stated at p. 142 of the report: “In my view, the District Justice’s order made under s. 47 of the Extradition Act, 1965, should contain a statement of the District Justice’s finding that the offence specified in the English warrant does correspond with an offence under the law of this State, and should set out the offence which, in his opinion, is the corresponding offence under the law of this State. If it should appear, on application to the High Court for an order of habeas corpus, that the offence under the law of this State found by the District Justice is not in fact a corresponding offence under the law of this State, I do not think that such a position would be fatal to the validity of his order provided that it could be shown in the High Court or on appeal in this Court, as the case may be, that the offence in the warrant did correspond with some offence under the law of this State.”
As a result of the decision in Furlong’s Case 5 and, no doubt, as a result of this specific passage in the judgment of Mr. Justice Walsh, the printed portion of the form for an order under s. 47 now in use, and used in this case, contains the following words:”and whereas it appears to me that the offence specified in the said warrant corresponds with an offence under the law of the State which is (an indictable offence) punishable on summary conviction by imprisonment for a maximum period of at least six months to witd.” Beside this printed recital are two instructions for the assistance of the District Justice and his clerk; opposite the bracket enclosing the words “an indictable offence,” is the legend “delete where not applicable” and, by reference to the letter”d”, after the words “to wit” there is the legend “state corresponding offence under the law of the State.” I have no doubt that the plain meaning of the portion of the judgment of Mr. Justice Walsh which I have just quoted is that the District Justice should recite his decision that the offence specified in the warrant corresponds with an offence under the law of the State which is either indictable or on summary conviction has a maximum penalty of at least six months and, furthermore, that he should definitely specify the offence with which he is satisfied the offence charged corresponds. To describe, as has been done in this case, the corresponding offence by the words “contrary to the Larceny Act, 1916” is not in my view a specifying of any offence within the law of this State or, to put the matter in another way, is merely a description of a great number of offences within the law of this State. Prima facie, therefore, the recital contained in this order is not in strict obedience to the direction contained in the judgment of Mr. Justice Walsh. Mr. Liston, on behalf of the defendant, points out that, as appears from that judgment, it is open to the High Court on review of an order made by a District Justice under s. 47 to confirm that order even though the High Court is satisfied that the offence specified in the order is not a corresponding offenceprovided there is a corresponding indictable or otherwise qualified offence which does correspond. He submits that equally the High Court can and should confirm an order by the District Justice under s. 47 where the specification of the corresponding offence is defective or incomplete, provided the High Court is satisfied that a corresponding offence does exist. In so submitting, he relies in particular on the terms of s. 47, sub-s. 2, and its negative approach. I am satisfied that the logic of this contention (which was not strenuously opposed by Mr. Sheridan on behalf of the plaintiff) is sound and that, notwithstanding the fact that in my view no offence is specified in the recital contained in the District Justice’s order, I must proceed to enquire as to whether there is an offence within the law of this State corresponding with the offence recited in the warrant and that, if there is, I must confirm this order.
The substantial issue argued before me remains to be decided, and it is the contention on behalf of the plaintiff that the offence recited in the warrant does not correspond to an indictable offence in our law. The only indictable offence with which it could conceivably correspond is the offence of simple larceny as defined in ss. 1 and 2 of the Larceny Act, 1916.
Mr. Sheridan contends that the judgment of O’Dalaigh C.J. in Furlong’s Case 6 must be taken to be the main judgment of the court and that it decides that there is only one appropriate method by which a District Justice or the High Court can decide whether an offence specified in a warrant corresponds with an offence under our law, and that method is to take the ingredients of the offence specified and place them side by side with the ingredients of the supposed or suggested offence within our law and that, if there is a difference, the offences do not correspond. Applying that principal to this case, Mr. Sheridan says that sub-s. 1 of s. 1 of the (English) Theft Act, 1968, provides that “a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it” but that this definition is significantly qualified and altered by a series of succeeding sections; and he points out that those qualifications and alterations involve ingredients in the crime of theft, as defined by the Act of 1968, which are absent from the crime of larceny known to our law.
The differences are as follows:
1. Under s. 2, sub-s. 1(b), of the Act of 1968 it is a defence for a person to establish that he appropriated property in the belief that he would have had the other’s consent if the other knew of the appropriation and the circumstances of it: no such defence exists to the charge of larceny.
2. Under s. 3, sub-s. 1, of the Act of 1968 any assumption by a person of the rights of an owner amounts to an appropriation whereas, counsel submits, in relation to the crime of larceny in Ireland there must be a taking and carrying away.
3. Under s. 6, sub-s. 1, of the Act of 1968 a person appropriating property belonging to another, without meaning the other permanently to lose the thing itself, is nevertheless to be regarded as having the intention of permanently depriving the other of it, if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal. Mr. Sheridan contends that this sub-section significantly extends the meaning of theft and the crime of theft under the Act of 1968 beyond the crime of larceny under Irish law.
If, as contended by Mr. Sheridan, this method of comparing the ingredients or constituents of the statutory offence in England specified in the warrant and the statutory or common-law offence in Ireland, with which it is supposed to correspond, were the appropriate and the only method of deciding whether a corresponding offence exists, I would accept the view that, whereas some of the differences alleged may be found expressed in a different way in the Act of 1916 (e.g. an equation between s. 6, sub-s. 1, of the Act of 1968 and the provision with regard to larceny by a bailee), there are differences (in particular with regard to the distinction between taking and carrying away and appropriation) which do not make the two statutory offences, read as such, correspond.
On behalf of the defendant, Mr. Liston contends, first, that this Court has neither a power nor a function to construe English law and that, therefore, it has no concern with the provisions of the Act of 1968. This argument is based upon the contention that the judgment of Mr. Justice Walsh is the majority judgment of the Supreme Court in The State (Furlong) v. Kelly 7, receiving agreement not only from the concurrence of Mr. Justice Budd but also, in this regard, from the dissenting judgment of Mr. Justice FitzGerald and that that judgment must be read as indicating that the only duty of the District Justice or of the High Court, and the only way in which the issue of a corresponding offence can be determined, is to look at the acts alleged in the warrant. If those acts correspond with an indictable or otherwise qualified offence, the order must be made or confirmed; if the acts do not correspond with an indictable or other qualifying offence, the order can not be made or, if made, must be set aside. Secondly, Mr. Liston argues, even if the Court sees fit and is entitled to consider the provisions of the Act of 1968, it is not fatal to the finding of a corresponding offence that there are methods of committing theft under the Act of 1968 other than those constituted by the precise allegations of fact contained in the warrant, provided that the precise manner in which it is alleged it was committed in this case corresponds with an Irish indictable offence. In short, he says that the form of the warrant in this case is strictly in accordance with the example given by Mr. Justice Walsh in his judgment in The State (Furlong) v. Kelly 7 at p. 144 of the report where he says:”If it were sought to show that this corresponded, for example, to simple larceny under our law, then either the statement of the offence in the warrant or the appropriate accompanying evidence should inform the District Justice that the prosecutor is accused of taking an object without the consent of the owner fraudulently and without a claim of right made in good faith and carrying away the object in question with the intention of permanently depriving the owner of that object.” Mr. Liston says that it is clear from the judgment of Mr. Justice Walsh that a warrant so expressed would be capable of being held to correspond with the offence of larceny in Ireland.
I accept, as I must do, what I would conceive to be the majority decision of the Supreme Court in Furlong’s Case7, that it is no part of my function to construe foreign law and that, if either of the parties in this case wished me to proceed upon a construction of foreign law, it would be necessary for them to have given evidence of that law in the accepted form through an expert. However, I cannot accept the contention of Mr. Liston that the judgments to which I have referred inhibit me from considering the terms of the English statute which is expressly referred to in the warrant. In his judgment, Mr. Justice Walsh said at p. 144 of the report:”However, I am satisfied that the material set out in the warrant sent here for backing is insufficient to enable the District Justice to determine the question notwithstanding that the word ‘steal’ appears in it. The word cannot be divorced from the reference to s. 9 of the English Act of 1968.” That necessarily implies to my mind that it is essential for the Court or for the District Justice, as the case may be, to enquire into the terms of any Act expressly mentioned in the warrant and to see if any words in that warrant, constituting an allegation of facts or acts by the accused, have been given a special meaning by the Act.
On the other hand, I do not accept that the judgments of O’Dalaigh C.J. and of Mr. Justice Walsh in Furlong’s Case 8 are to be construed as being inconsistent. It is, I think, of importance to remember the particular facts in respect of which those judgments were given. What the court was there concerned with was the statement of an offence in a warrant which was excessively bald and read as follows:”that Michael Furlong . . . did, having entered the office of A.R.C. Concrete Ltd. as a trespasser, steal therein an Autorite ticket machine of the value of £39, the property of the said A.R.C. (Concrete) Ltd., contrary to section 9 of the Theft Act, 1968.” O’Dalaigh C.J. approached the problem thus arising by saying, in effect, that the only conceivable method of seeing whether there was an offence corresponding to the offence in that warrant was to enquire into the necessary ingredients of the offence of stealing contrary to the provisions of s. 9 of the Act of 1968 and, if they did not in all ways correspond with the supposed corresponding offence of simple larceny as defined by the Larceny Act, 1916, then there was not evidence of a
corresponding offence. The approach of Mr. Justice Walsh, on the other hand, was that there simply was not a sufficient allegation of fact or detailed allegation to permit of a comparison of the offence charged with any indictable offence in Ireland and that, accordingly, no decision to make an order under s. 47 of the Act of 1965 could be made. In this case, however, the warrant contains details of the facts and acts alleged, and it seems to me that the method of determining the issue propounded by Mr. Justice Walsh is the appropriate method for this case at least. I do not decide, and it is not necessary for me to decide, whether the approach contained in the judgment of O’Dalaigh C.J. may not be appropriate in some other case.
As I have indicated, I take the view that, whereas I may not construe general matters or principles of law, I should and am entitled to have regard to the statutory provisions of the Act of 1968 which has been expressly mentioned in the warrant and that, applying the approach of considering the facts alleged, I must have particular regard to any submission that in the light of definitions contained in the Act of 1968 the words contained in the warrant have a special meaning which is different from either their meaning in the law of this State or their ordinary common meaning. In my view, I must also have regard to a submission which was made strenuously by Mr. Sheridan on behalf of the plaintiff. He submitted that, if the charge as contained in the warrant includes ingredients which are unnecessary for the purpose of establishing an offence under the Act of 1968 but are essential for the purpose of establishing the offence of larceny in Ireland, I should disregard those facts or allegations.
Approaching the matter in this way and taking the allegations in the warrant before me, I reach the following conclusion. The allegation that the accused did something fraudulently and without claim of right made in good faith is an ingredient of larceny in this country; and it is one of the ways in which a person may, within the meaning of the Act of 1968, dishonestly appropriate property insofar as s. 2, sub-s. 1(a), of that Act provides a special defence where the appropriation of the property has been done in the belief that the person appropriating it has the right in law to deprive the other of it. Secondly, while the allegation that the accused took and carried away the Ford tipper lorry is not the only form in which the appropriation can be committed within the meaning of the Act of 1968, it is clearly a major form in which it can be committed and an allegation of taking and carrying away is manifestly an allegation of appropriation within the Act of 1968. The concept of the act being done without the consent of the owner is common to both statutes; and the intent at the time of the taking permanently to deprive the owner of the property is an essential constituent of simple larceny, and is one of the intents which may constitute theft under the Act of 1968. Therefore, I find myself driven to the conclusion that each of the allegations of fact made against the accused in the warrant is material, though they are not the only allegations of fact to constitute the ingredients of theft under the Act of 1968; at the same time they are the classically essential ingredients of the offence of larceny as defined in the Larceny Act, 1916.
This would lead to a conclusion that the offence specified in the warrant is an offence corresponding with an indictable offence in Ireland, subject to one further argument submitted by Mr. Sheridan on behalf of the plaintiff. He contends that, having regard to the fact (to take a single example) that appropriation is wider and may be carried out or committed in more varied forms or manners than a taking and carrying away, the accused, if extradited, may be faced with a situation in which he could be convicted of theft under the Act of 1968 in England without the necessity for the prosecution to prove a taking and carrying away as they now allege in the warrant, provided that they prove an appropriation in some other or different form; he submits that some at least of the other ways in which appropriation could be proved within the terms of the Act of 1968 would not be indictable offences in Irish law.
With regard to this point, I am satisfied that I am entitled to have regard to the fact that an extradition Act is necessarily the consequence, as Mr. Liston contends, of an agreement between two sovereign States reposing confidence in each other, and that I should not, in the first instance, suppose that the court and the other authorities of the country by which extradition is sought are using a deceit so as to secure the apprehension of the plaintiff. Apart from this, there is the more decisive fact that under the provisions of Part III of the Act of 1965 there appears to be no prohibition, or any attempted prohibition, against a person who has been extradited on a warrant specifying one charge being brought before the courts of the country requesting the extradition and being there charged with other offencessave and except in so far as there is express provision in s. 44, sub-s. 2, of the Act of 1965 restricting the extradition of a person where there are substantial reasons for believing that he will, if removed from the State on any charge, be prosecuted or detained for a political offence, or an offence connected with a political offence, or an offence under military law which is not an offence under ordinary criminal law. The scheme of Part III of the Act of 1965 seems to me to be clear; a person charged with an offence under ordinary criminal law, which is neither a political nor a revenue offence, may be extradited notwithstanding substantial reason for believing that when brought to the country to which he is being extradited he will be prosecuted for other ordinary criminal offences.9
If that is so, then it seems to me that an assertion that all or part of the allegations of fact contained in a warrant may not be proved, but that some other act or fact sufficient to constitute the same English offence may be proved instead, is not a valid objection to the making of an order under s. 47 of the Act of 1965. Therefore, I refuse the application of the plaintiff in this case.

The plaintiff appealed to the Supreme Court from the judgment and order of the High Court.
FITZGERALD C.J. :
31 July

I have read the judgments of Mr. Justice Walsh, Mr. Justice Henchy and Mr. Justice Griffin and I agree with them.

WALSH J. :
On the 21st August, 1973, Archibald Whitesmith, a Justice of the Peace in the county borough of Stockport, England, issued a warrant for the arrest of the plaintiff upon a charge that “on the 27th October, 1972, in the county borough of Stockport, England, he did fraudulently and without claim of right made in good faith take and carry away a Ford tipper lorry registered number ONE 219H of the value of £3,000 the property of Allinson Limited, without the consent of the owner thereof and with the intent at the time of such taking permanently to deprive the said owner of it and did thereby steal the said lorry contrary to section 1 of the Theft Act, 1968.”
The warrant was transmitted to this country for endorsement and execution in accordance with Part III of the Extradition Act, 1965. The defendant, who is an Assistant Commissioner of the Garda SÃochÃ¡na, endorsed the warrant and it was duly executed by the arrest of the plaintiff. On the 5th September, 1973, the plaintiff was brought before the District Court sitting in Cork City and the District Justice, being satisfied with the proofs offered, made an order pursuant to s. 47 of the Act of 1965 directing that the plaintiff should be delivered at Cork Airport into the custody of a member of the Cheshire Constabulary for conveyance to the Magistrate’s Court at Warren Street, Stockport, Cheshire, England. He also directed that the plaintiff should be lodged in custody in Limerick Prison pending the execution of the extradition. The District Justice in his order recites that it appeared to him that the offence specified in the warrant corresponded with an indictable offence under our law being one which was “contrary to the Larceny Act 1916.” On the 17th September, 1973, the plaintiff issued the present proceedings by way of special summons against the defendant and in the special endorsement of claim the plaintiff claimed, first, a declaration pursuant to s. 50 of the Act of 1965 that the charge, the subject matter of the order of the District Court made on the 5th September, did not correspond with any offence under Irish law and, secondly, a declaration pursuant to the provisions of s. 50 of the same Act that the order of the District Justice did not comply with the provisions of s. 47 of the Act; the plaintiff further claimed that the said order of the District Justice should be discharged.
In my view, a declaration is not the appropriate remedy to seek and is not a form of relief which can be claimed upon a special summons. It is perhaps understandable that it appeared in this form because the rules of court had only been changed in July, 1973, to permit the bringing of applications for orders under s. 50 of the Act of 1965 by way of special summons; before that date they had been brought by plenary summons in which a declaration can be sought. The present proceedings were brought in reality for an order pursuant to the provisions11 of s. 50, sub-s. 2 (c), of the Act of 1965. Section 50, sub-s. 1, of the Act provides that a person arrested under Part III of the Act shall be released if the High Court so directs in accordance with that section; and sub-s. 3 of that section provides that a direction of the High Court under the section may be given on the application of the person concerned. In my view, the proper relief to be sought on a special summons in these cases is a claim for an order of the High Court directing the release of the plaintiff. This procedure by way of special summons was inaugurated by the Rules of the Superior Courts (No. 1), 1973, which require that the proceedings should be served upon the Garda Commissioner, Deputy Commissioner, or Assistant Commissioner, who has endorsed the warrant for execution. That is obviously a necessary thing to do because the person endorsing the warrant is responsible for the execution of the warrant and, therefore, he must be given notice of proceedings which are brought to direct the release of the person so arrested. However, the Rules do not state that such person shall be the defendant and, in view of the fact that s. 50 provides for statutory relief being given by an order directing the release of the person so detained, it is obvious that such an order, if and when made, must be directed to the person having custody of the plaintiff if he is then in custody. In my view, the custodian is the person who should be the defendant because he may also wish to be heard upon the matter. However, the form of the relief sought was not made the subject of any argument or submission and for the purposes of this particular case the relief sought may be construed as being an application for an order directing the release of the plaintiff.
The matter came on for hearing before Mr. Justice Finlay in the High Court on the 5th November, 1973, and having heard the submissions on both sides he directed that the application be dismissed. He held that the offence set out in the warrant corresponded with simple larceny where it is provided for by s. 2 of the Larceny Act, 1916, in our law. From that order the plaintiff has appealed to this Court to reverse the decision of the High Court and to make the order sought for the release of the plaintiff. In support of the appeal it is submitted that the High Court judge was wrong in holding that the offence charged corresponded with simple larceny under our law and that he was wrong in not holding that the offence charged did not correspond with any offence under our law. It is also submitted that the High Court judge was wrong in failing to hold that the order of the District Court was defective in that it did not specify the offence under the Larceny Act with which the offence in the warrant corresponded. It is also submitted that the charge as laid in the English warrant was “dressed up” (to quote the words used in the submission) so as to contain a sufficient statement of the facts necessary to make it correspond with the offence of simple larceny in this country. It is also submitted that the learned trial judge was wrong in holding that the judgments of O’Dalaigh C.J. and of myself in The State (Furlong) v. Kelly 12 were not inconsistent, and that he failed to give effect to the judgments of the Supreme Court in that case “as enunciated by the Chief Justice.”
I should like first to deal with what I might call the”dressing up” point. The gist of this submission is that if this charge were not one for which extradition was being sought its wording would have been quite different. The basis of this submission is that English law does not require the proof of the ingredients set out in the charge. Be that as it may, and I am not saying whether English law does so or not because, for the reasons I shall later deal with, this Court and any other court in proceedings such as these is not at all concerned with the construction of English law. It appears to me to be quite clear that the wording of the charge as laid in the warrant identifies it with the offence of simple larceny in this country. It is quite clear that the charge was drafted by following, word for word, what I said such a warrant ought to contain in the course of my judgment in Furlong’s Case 13 at p. 144 of the report. Whether such wording is or is not necessary in England is a matter the Court need not concern itself with and is quite irrelevant. The District Court here has to be satisfied that an offence laid in a warrant sent here and endorsed for execution is so stated as to be recognizable as corresponding with an offence under our law. It must, therefore, contain such essential factual material as may be necessary to recognize whether or not the acts complained of are ones which, if committed in this country, would amount to a criminal offence.
Until there is some reason to believe the contrary, it is to be assumed that a statement of facts such as the one appearing on the warrant executed in this case, or any warrant sent here for execution, is a truthful statement of the facts of the case in respect of which the arrest is sought. If it should transpire in any case that the statements of fact set out in the charge were not supported by any evidence then, of course, a very serious situation would arise and the Courts would be obliged to examine such warrants in a completely different light because to set out statements of fact on a warrant for the purpose of giving the charge the appearance of corresponding to an offence under Irish law, when those factual statements are not capable of being borne out by evidence, would be to practise a fraud upon the Courts of this country. It is not suggested that such is the position in the present case. Whether or not it is necessary to prove all the facts which appear on the warrant for the purpose of establishing the offence under English law is immaterial. What is material is that the facts as stated do amount to an offence in English law. Section 55 of the Act of 1965 deals14 with the proofs which are normally adequate to establish this point, and such proof has been established in the present case in accordance with that section.
It is, however, worth drawing attention to the opening words of s. 55 which qualify the sufficiency of the proof required by the statute by the words “. . . unless the court sees good reason to the contrary.” Thus, for example, if a point is raised by a plaintiff to the effect that the facts alleged do not constitute an offence under English law then the court may be forced to embark upon an inquiry as to whether they do or they do not. Such was the position which arose in Schtraks v. The Government of Israel 15 where it was submitted to the court that the acts alleged did not constitute an offence according to the law of Israel. But, unlike the procedure which was followed in Schtraks’s Case15, the law of the requesting State must be ascertained in accordance with the well-established procedures for establishing foreign law and which is a matter I dealt with at p. 143 of my judgment in Furlong’s Case. 16 It would be quite wrong for any court in this country to undertake the construction of foreign law simply by applying to it our own rules of interpretation or construction when in fact the rules of interpretation or construction of the country whose law is being examined might be different. When it has to be done, it has to be done by the court after hearing the expert testimony of a person who is qualified as a legal practitioner in the country whose law is in question. The court of the requested country is not normally expected to enter into an inquiry as to whether the acts alleged constitute an offence in the requesting country; that is the purpose of s. 55 of our Act of 1965 but it has the saving qualification I have already mentioned. What the court of the requested country is concerned with is to inquire as to whether the acts alleged constitute an offence under the law of the requested country.
Extradition is the formal surrender, based upon reciprocating arrangements by one nation with another, of an individual accused or convicted of an offence who is within the jurisdiction of the requested country when the requesting country, being competent to try and punish him, demands his surrender. The formal arrangements by which this may be secured and the principle of reciprocity enshrined are either by way of treaties or by reciprocal legislation. But, whichever system exists, in every case in which the matter comes into the courts of the requested State they must inquire whether the stipulations of the treaty or the requirements of the legislation, as the case may be, have been fulfilled. The question of what offences are extraditable offences is determined by the treaties or by the legislation and this is done either by the characterisation of extraditable acts or on the basis of the double criminality of the acts, that is to say, that the act constituting a crime shall constitute a crime according to the laws both of the requesting and the requested States. It is the practice in many treaties to adopt a system of characterising the extraditable acts by specifying by name the offences for which extradition will be granted.
Part III of the Act of 1965, which applies to the present case, is based upon the principle of double criminality without any categorisation or enumeration or specification of the offences for which extradition will be granted. Under such arrangements it is not the legal qualification of the offence according to the foreign law concerned or the name it has in that law which is of importance but it is the facts underlying the offence as ascertainable from the warrant or conviction, as the case may be, or as may be ascertained from such other documents as may accompany the warrant. Therefore, the Courts of this State, when dealing with warrants endorsed for execution in accordance with Part III of the Act of 1965, must be satisfied that the acts constituting the particular offence for which extradition is sought are acts which, if committed within this jurisdiction, would constitute a criminal offence. For the reasons stated in Furlong’s Case 17, it is necessary that either the warrant or some other document accompanying it should set out sufficient information as to these acts to enable the courts of the State to identify the corresponding offence, if any, in our law. It cannot be sufficient simply to use the name by which the crime is known, or alleged to be known, in the requesting country even though that same name may be used in this country as the name of a crime, because the acts complained of, although having identical names, may constitute quite different criminal offences in different countries or, indeed, no offence at all in one of them. For example, what constitutes embezzlement in one country may be larceny in another, and acts which would constitute the offence of abortion or unlawful homosexual behaviour in one country may not constitute any offence in the other.
In my view, the learned High Court judge was in error in embarking upon an examination of the English statute and in construing anything said in the judgment of O’Dalaigh C.J. or in my own judgment in Furlong’s Case 17 as authorising such a course. The passage from my own judgment at p. 144 of the report to which Mr. Justice Finlay referred did not imply that it was essential for the High Court or the District Justice to inquire into the terms of any Act mentioned in the warrant. The reference in that passage to s. 9 of the (English) Theft Act, 1968, was to indicate that the word”steal” in the warrant in that case was clearly intended to refer to the English statute and not to the word”steal” in Irish law. It did not mean that one was under any obligation or necessity to discover what the word “steal” meant in English law. On the contrary it emphasised, as I think the passage makes clear, that the function of the Irish court was to discover from the acts alleged whether there was a corresponding Irish offence and to ignore offence names found in English law.
The submission of counsel for the plaintiff is, in my view, quite misconceived in stating that the judgment of O’Dalaigh C.J. in Furlong’s Case 18 is an authority for the proposition that the appropriate method for a District Justice in his approach to an extradition case is to take the ingredients of the offence charged and place them side by side with the ingredients of the proposed or suggested offence under our law and to see whether they correspond. The learned Chief Justice at p. 141 of the report noted that at the time of the passing of the Act of 1965 the statute criminal law in this country was in a very large measure the same as that in England and that, accordingly, no difficulty arose in saying whether or not there was a corresponding offence under the laws of the State. He remarked that the mere statement of the offence in most cases made a perfect equation. He drew attention, however, to the fact that the enactment of the Theft Act, 1968, in England created difficulties which he thought could not have been foreseen in 1965. At p. 142 of the report, he added:”It is now idle to speculate whether, if the Theft Act had been in force in 1965, the Oireachtas would have preferred to specify in a schedule nominatim the offences in respect of which extradition was to be granted. Until some such simple formula is law the District Court and, on a habeas corpus application, the High Court and, on appeal, this Court must prepare themselves for the difficulties of determining what offence (if any) is the corresponding offence under the law of the State.” There the learned Chief Justice was drawing attention to the alternative methods, which I have already mentioned, of identifying extraditable offences, namely, either by specifying the offences or by establishing the existence of double criminality. At p. 140 he said: “The purpose of s. 47 of the Extradition Act, 1965, is to ensure that no one in this jurisdiction shall be ordered to be delivered up to be extradited in respect of an offence alleged to have been committed in England etc. unless it is shown that the offence in question corresponds to an offence under the law of the State, that is to say that he could,if he had committed the same acts in this jurisdiction, have been charged in respect thereof.” The italics are mine. Earlier in the same page he referred to the particular case with which the Court was then dealing and illustrated the point which he had in mind when he said:”The position in this case is that we do not know, and the District Justice did not know, whether the offence in question here is or is not an offence under the law of the State. In this instance the determination of that matter must depend on the evidence against the accused. It may well be that the evidence in the hands of the English police (if accepted) would establish that there was an intent permanently to deprive the owner of the property and that such intent was formed at the time of the taking. The District Justice may not act on such a possibility or even probability; he must know that such is the case. His jurisdiction to make an order for delivery depends upon this being shown. It was not shown in this instance.” This is not to be construed as suggesting that the Chief Justice had in mind that evidence must be given before the District Justice; the Chief Justice had in mind that the acts alleged in the warrant must be such that, if committed in this State, they would constitute a criminal offence.
I think, perhaps, that the confusion which has arisen on the interpretation of the judgment of the learned Chief Justice arises from his use of the algebraic illustration. He set out to demonstrate that an English offence which, for example, consisted of only four essential ingredients would not have a corresponding Irish offence unless the latter contained either precisely the same four essential elements or a lesser number thereof. He indicated that, if the only Irish offence that could be pointed to had more essential ingredients than the English offence, there would be no corresponding Irish offence to satisfy the requirements of s. 47, sub-s. 2, of the Act of 1965. His examination of the ingredients of English and Irish offences at pp. 138-9 of the report was undertaken to demonstrate that the differences between our Larceny Act, 1916, and the (English) Theft Act, 1968, were such that the names used to designate offences in one Act when used in the other Act did not designate the same offences or corresponding offences. His statement at p. 141 that “the basic inquiry is to discover whether the several ingredients which constitute the offence specified in the warrant, or one or more of such ingredients, constitute an offence under the law of the State and, if they do, whether that offence (the ‘corresponding offence’) is an indictable offence or, if not, whether it is punishable on summary conviction by imprisonment for a maximum period of at least six months.” This immediately precedes his algebraic illustration. In view of the other matters said by the Chief Justice to which I have already referred, this reference to “ingredients” in the sentence must be taken to refer to the ingredients as they are set out in the warrant and was not intended to convey that a simple reference to a section of an English Act, without any adequate recital of acts alleged to have been committed, puts the court on inquiry to examine the English law to ascertain what are the statutory ingredients of the offence alleged under that English law.
For the reasons I have already given, in my view the offence detailed on this warrant corresponds with our offence of simple larceny. The necessary statutory proof has been offered as required by s. 55 of the Act of 1965 to show that this is an offence in England. It has not been contested that the facts alleged constitute an offence in England.
The only other matter I wish to deal with is the fact that the District Justice, while correct in deciding that there was a corresponding offence under the Act of 1916, did not say which offence. He should have done so but the order is not bad because he did not do so fully. In the course of my judgment in Furlong’s Case 19 at p. 142 of the report, I expressed the view that if a District Justice erroneously designated a particular offence under our law as being the corresponding offence it would not be fatal to his order provided it could be shown in the High Court or, on appeal, in this Court that the offence in the warrant did correspond with some offence under
the law of this State. In my view, the appeal should be dismissed.

BUDD J. :
I agree. I have read the judgments of Mr. Justice Henchy and Mr. Justice Griffin and I agree with them also.

HENCHY J. :
In my judgment, this is a clear-cut case. The substance of the grounds of appeal lodged on behalf of the plaintiff is that Mr. Justice Finlay was wrong in upholding the decision of the District Justice to the effect that the offence specified in the warrant corresponded with an offence under the law of this State, as required by s. 47, sub-s. 2, of the Extradition Act, 1965.
It is incontrovertible that, if the plaintiff committed in this State the acts particularised in the warrant, he would be guilty of larceny as defined by s. 1 of the Larceny Act, 1916. It has not been suggested that if those acts, as particularised, were proved against the plaintiff in England on the trial of a charge of stealing under s. 1 of the Theft Act, 1968, a verdict of guilty could not result.
What has been suggested is that the particulars given in the warrant extend beyond the necessary ingredients of the offence of stealing contrary to s. 1 of the Act of 1968 and that, accordingly, the offence specified in the warrant does not correspond with the offence of simple larceny in this State as, it is conceded, it should do in order to comply with s. 47, sub-s. 2, of the Act of 1965. I am satisfied that in the circumstances of this case this point is without validity. It is possible to conceive of cases where the specification of the offence in the warrant might be fleshed out with particulars known to be false, or with wholly extraneous particulars, for the purpose of producing a false or merely colourable correspondence with an offence under the law of this State. What has been alleged against the particulars in the warrant in this case is that, needlessly for the purpose of specifying the offence and solely in order to achieve a seeming compliance with s. 47, sub-s. 2, of the Act of 1965, they set out matters which the prosecution in England would not have to prove. There might be force in that submission if the expert evidence of a qualified person had been adduced to show that the particulars, or any of them, would not be admissible and probative at the trial in England. In the absence of such evidence it may be assumed that the offence in question is susceptible of proof by proving the matters particularised: see s. 55, sub-s. 1(c), of the Act of 1965. It may be that the offence could be proved by what might be considered simpler or more direct proofs but, in the absence of expert evidence to the contrary, there is no reason to assume that the prosecution might not prove its case by substantiating with evidence the particulars given.
The set of proofs particularised in the warrant as the ingredients of the offence, if borne out by evidence, must be deemed to be valid in England to produce a verdict of guilty of stealing contrary to s. 1 of the Act of 1968. In this State the same proofs, mutatis mutandis as to the place of the offence, would produce a verdict of guilty of simple larceny. Therefore, the two offences correspond as is required by s. 47, sub-s. 2, of the Act of 1965. I would uphold the decisions of the District Justice and of Mr. Justice Finlay and would dismiss this appeal.

GRIFFIN J. :
The facts and documents are sufficiently set forth in the judgment of Mr. Justice Walsh, and I do not propose to repeat them here. The net issue for decision on the hearing of this appeal, as on the hearing in the High Court, is whether the offence specified in the warrant corresponds with an offence under the law of the State which is an indictable offence or an offence punishable on summary conviction by imprisonment for a maximum period of at least six months as required by s. 47, sub-s. 2, of the Extradition Act, 1965.
Counsel for the plaintiff submits that, once the authority which seeks the transfer of the person named in the warrant specifies the Theft Act, 1968, in the warrant, it lies on that authority to show that the offence set out in the warrant is an offence under the Act of 1968; and he submits that, to ascertain whether that offence corresponds with an offence under our law, the Court must examine the statutes in force here and in England so as to ensure that the ingredients of the respective offences are identical and, if these ingredients differ in any way, he submits that the offences do not correspond. As authority for this proposition, he relies on the judgment of O’Dalaigh C.J. in The State (Furlong) v. Kelly .20 Counsel for the defendant submits that the Court should not investigate the foreign law; he submits that what the Court must ascertain is (1) whether the facts alleged against the plaintiff are sufficient to found a charge here and (2) whether the offence is either an indictable offence or an offence punishable on summary conviction by imprisonment for a maximum period of at least six months. He submits that the foreign law is sufficiently proved by the certificate required by s. 54, sub-s. 2, of the Act of 1965 certifying that the offence to which the warrant relates is by the law of England and Wales an indictable offence; and he relies on s. 55, sub-s. 1(c), which provides that in any proceedings, unless the court sees good reason to the contrary, this certificate may be admitted as evidence of the matters certified therein without further evidence, and he says that in this case there is nothing to suggest that there is any good reason to the contrary.
The offence set out in the warrant contains all the ingredients of stealing as defined in s. 1 of the Larceny Act, 1916, and, if these acts were committed here, it is beyond question that the plaintiff would be guilty of the offence of simple larceny under s. 2 of the Act of 1916. The required certificate is endorsed on the warrant and it certifies that the offence specified in the warrant is an indictable offence under the laws of England and Wales. In my opinion, on the authority of Furlong’s Case 20properly interpreted, once the particular acts alleged in the warrant to have been done by the person named in the warrant amount in Ireland to stealing, an order should be made for his delivery to the appropriate police force (in this case the Cheshire Constabulary) pursuant to s. 47, sub-s. 1, of the Act of 1965. The judgment of O’Dalaigh C.J. in Furlong’s Case 20 does not, in my view, support the submission made by counsel for the plaintiff. While it is true that in that case the learned Chief Justice did compare the appropriate ingredients of the Act of 1916 and the Act of 1968, he did not do so for the purpose of laying down the proposition that this was a necessary exercise before extradition could take place but, as has been pointed out by Mr. Justice Walsh, to demonstrate that the differences between the two Acts were such that the names used to designate particular offences in one Act did not, when used in another Act, necessarily designate the same offences or corresponding offences.
Having regard to the form of the warrant in the present case, it is quite clear that before the warrant was issued consideration was given to the judgments of this Court in Furlong’s Case 21, and that it complies with what was stated by this Court as being necessary before extradition can take place. In my opinion, the decision of the learned High Court judge was correct and I would dismiss this appeal.

Maurice Hanlon v John Fleming

HENCHY J

delivered his judgment on 5 October 1981 saying: The plaintiff in this case, Maurice Hanlon, is seeking to resist his extradition to the United Kingdom. To do so he has invoked the provisions of the Extradition Act, 1965. He issued a special summons in the High Court asking, in effect, for an order that a warrant issued against him in London be not executed here. In those proceedings he named Edward P. Garvey of the Garda Siochana as defendant, but as Mr. Garvey is no longer a member of the Garda Siochana, John Fleming, who is an Assistant Commissioner, has been allowed by the court to replace Mr Garvey as defendant.

Although Maurice Hanlon was the plaintiff in the High Court proceedings, because the warrant in question was issued for his arrest to answer a criminal charge, I shall for convenience refer to him as the accused.

The relevant facts may be briefly stated. In 1971 the police raided and searched the accuseds flat in London. In the course of the search they found a quantity of electric detonators and plaster gelatine. As a result, the accused was arrested and charged at West London Magistrates Court with handling stolen goods contrary to s. 22(1) of the Theft Act, 1968. He was remanded in custody. He remained in custody in Brixton Prison from November 1971 until January 1972, when he was granted bail on condition that he would sign a police register twice a day while on bail and also conditional on the production of two independent sureties of 1,000 each.

He was duly released on bail on those conditions in January 1972. He remained at large on bail until March 1972, when he broke bail and decamped to Ireland. The London police traced him to an address in Dublin, whereupon they got a warrant for his arrest from a Metropolitan Stipendiary Magistrate sitting in the West London Magistrates Court. The Warrant specified a charge against him for having:

on a day between 1 January and 8 November 1971 within the jurisdiction of the Central Criminal Court dishonestly received stolen goods, namely nine electric detonators and four ounces of Eversoft Plaster Gelatine, knowing or believing the same to be stolen goods.

Contrary to s. 22(1) of the Theft Act, 1968.

The procedures laid down by the Extradition Act, 1965 were then put in train. On 4 November 1974 a District Justice issued an order under s. 47 of the Act directing the Superintendent of the Garda Siochana at Rathfarnham to deliver the accused at Dublin Airport into the custody of a member of the Metropolitan Police Force Flying Squad stationed at New Scotland Yard, London. The accused then, having been released on his entering into a recognizance under s. 52(3) of the Extradition Act, 1965, issued the special summons, to which I have referred, on 14 November 1974. The proceedings instigated by that summons, which were heard partly on an affidavit sworn by the accused and partly on oral evidence, came before a judge of the High Court on 10 February 1975 and on 7 April 1975, when judgment was reserved. The reserved judgment was not delivered until 6 October 1980, that is five and a half years later. It was held in that judgment that the accused should be refused any of the relief he had claimed in the special summons. It is against that refusal that the present appeal has been taken by the accused to this Court.

Counsel for the accused has rested his case on three propositions: (1) that the right to extradite in this case has been lost by reason of the inordinate length of time that has passed since the specified offence is said to have been committed, and particularly since the High Court proceedings were heard; (2) that the judge was wrong in holding that the offence charged was not a political offence or an offence connected with a political offence; and (3) that the judge was wrong in holding that the offence specified in the warrant had the required correspondence with an offence under the law of this State, as is specified by s. 47(2) of the Extradition Act, 1965.

As to (1), that is delay, it has been inordinate and in part unexplained, but I do not think it is in itself a good ground for refusing extradition. The failure to have the charge against the accused tried in London in due time has been primarily the accuseds own fault. Such evasion of a trial is usually the reason for extradition proceedings. If the accused had not broken bail and fled to Ireland, the charge against him would have long since been tried and disposed of. If the superimposed delay, due to the extraordinary lapse of time between the hearing in the High Court and the delivery of the reserved judgment, could be said to imperil or render impossible a fair trial, that would be a matter which would have to be raised in the first instance in an English court. But the scheme of reciprocal extradition between Ireland and the United Kingdom, represented on the Irish side by the Extradition Act, 1965, does not recognise delay as a ground for refusing extradition. For the courts in this State to recognize it would be to read into the statute something that has been omitted, presumably on purpose. I would therefore reject this ground of appeal.

As to (2), that is the political aspect of the specified charge, I would hold against this ground for the simple reason that the judge in the High Court, having heard oral evidence, found as a fact that there is no acceptable evidence to satisfy me that any of the proceeds of [the accuseds] criminal activities was used for the purpose of the IRA in such a way as to lend political colour to the offences. But even if the judges finding were otherwise, even if it had been found as a fact that the explosive material referred to in the charge specified in the warrant had been intended for transmission to the IRA, it would not necessarily follow that the accused would be exempt from extradition on the ground that the charged offence is a political offence or an offence connected with a political offence. There has been no decision of this Court on such a point. It must be left open for an appropriate case. For the present, it is sufficient to say that the judges finding that the specified charge is not a political offence or an offence connected with a political offence is supported by evidence and cannot be disturbed by this Court.

As to (3), that is that the specified offence has not the required correspondence with an offence under the law of this State, the relevant decisions of this Court (for example, The State (Furlong) v Kelly [1971] IR 132Wyatt v McLoughlin [1974] IR 378 and Wilson v Sheehan [1979] IR 423) show that it is a question of looking at the factual components of the offence specified in the warrant, regardless of the name given to it, and seeing if those factual components, in their entirety or in their near-entirety, would constitute an offence which, if committed in this State, could be said to be a corresponding offence of the required gravity. The required gravity is not in issue here. What is in issue and this is the nub of this appeal is whether the factual elements of the specified offence, if laid in this State, either precisely or substantially as set out in the warrant, as the particulars of an indictment for an offence contrary to s. 33(1) of the Larceny Act, 1916, would be a correct basis for a finding of guilty by a correctly charged jury.

Counsel for the accused contends that they would not. He concedes that if the offence specified in the warrant had merely charged the accused with dishonestly receiving the articles in question knowing the same to have been stolen, the offence thus specified would have the necessary correspondence with an offence contrary to s. 33(1) of the Larceny Act, 1916. But he submits that the formulation in the warrant of the mens rea as knowing or believing the same to have been stolen amounts to a lowered or less stringent degree of mens rea, so that the offence charged, while resembling an offence contrary to s. 33(1) of the Larceny Act, 1916, is amenable to proof on a more relaxed criterion of guilt, so that the required correspondence of offences is absent. Counsel for the defendant, on the other hand, submits that the additional words or believing make no difference, that for the purpose of the specified offence no distinction is to be drawn between knowing and believing.

At common law it was a misdemeanour punishable by fine and imprisonment to receive goods knowing them to have been stolen, and the indictment commonly charged the accused with receiving the stolen goods well knowing at the time when he received them that they had been feloniously stolen. The offence eventually became a statutory one, and, with the replacement of the Larceny Act, 1896, and the Larceny Act, 1901, by the Larceny Act, 1916, the offence of receiving stolen property knowing the same to have been stolen became a felony deriving from s. 33(1) of the latter Act. A series of judicial decisions, both in this country and in England, has firmly established that it is essential for a conviction for receiving stolen goods contrary to s. 33(1) that the accused must, at the time of the receiving, have actually known the goods to have been stolen. Recklessness as to whether they were or not is not sufficient. Actual knowledge of the fact that they were stolen is of the essence of the offence. This is not the same as direct knowledge, such as an accused would have if he saw a looter smash a shop window and abstract goods displayed inside. The actual knowledge may, of course, be proved circumstantially. As Black J said in giving the judgment of the Court of Criminal Appeal in The People (Attorney General) v Berber and Levey [1944] IR 405, at 411412:

The question of guilty knowledge is well dealt with in Wills on Circumstantial Evidence , 7th Ed., p. 103 in the following passage: It is not necessary that the receiver of stolen property should have obtained a guilty knowledge by direct information; it is sufficient if the circumstances under which it was received were such as must have satisfied any reasonable mind that it must have been dishonestly obtained. The word must deserves emphasis in both places where it occurs in this passage.

The judgment went on to say:

The fact that a person has been so imprudent that he did not know that the property was stolen, when, if he had not been so imprudent, he would have known it, is a negation of guilty knowledge. It would be absurd to regard it as a proof of the very thing it negatives. To set up ordinary prudence as the test of guilty knowledge is to make imprudence a necessary badge of fraud, whereas a reasonable mind may often be satisfied that property was received under circumstances indicating a transaction that was casual or incautious, indiscreet or venturesome, or even rash, without being criminal.

In dealing with the arguments propounded in this case I am not entitled to analyse or interpret the Theft Act 1968. I must focus my attention on the words knowing or believing the same to be stolen goods and first consider whether a conviction under s.33(1) which contained those words would be good. I am satisfied that it would not. Apart from the fact that it might be held bad for duplicity, it would indicate that the jury may have found the mens rea to be something less than actual knowledge that the goods had been stolen. And that would be in the teeth of s. 33(1) and the judicial decisions under it. While knowledge and belief frequently coincide or overlap (for example, I both know and believe that this is the Supreme Court), there are many matters which one believes to be correct without being able to say that one knows them to be correct. For example, I may believe things such as that there is life in outer space, that evolution is the origin of species, that a particular person did a particular act, but I may have to admit that I do not know, or do not know with any substantial degree of certainty, that such beliefs are well founded. Without entering into the intricate logical, metaphysical and philospohical problems involved in a comparison of knowledge with belief, and keeping the matter on the plane of ordinary usage, which is presumably how it would be dealt with by both judge and jury, I would point to the commonly used expression, I believe it to be so, but I do not really know. If a person were being tried for the offence of receiving goods, knowing or believing the same to be stolen goods, contrary to s. 33(1), the judge would not be entitled, when charging the jury, to tell them to ignore the words or believing, when those words would appear in the indictment and in the issue paper and in the warrant, if a conviction ensued. The fact of the matter is (as appears from a consideration of the Criminal Justice (Administration) Act, 1924, and the rules and forms annexed thereto) that the introduction into the indictment of the words or believing would invalidate the indictment and, thereby, a consequent conviction. The introduction of those words as an ingredient of the offence would amount to an unconstitutional amendment of s. 33(1), for it would allow a dilution or relaxation of the mens rea required by that subsection. As Glanville Williams says ( Textbook of Criminal Law , p. 87):

The word knowing in a statute is very strong. To know that a fact exists is not the same as taking a chance whether it exists or not. The courts ought not to extend a mens rea word by forced construction. If, when Parliament says knowing or knowingly, it does not mean actual knowledge, it should be left to say as much by amending the statute.

I would therefore hold that the words or believing in the description of the specified offence prevent the component elements of that offence, if set out in their entirery in an indictment for an offence in this State, from having the necessary statutory correspondence with an offence contrary to s. 33(1) of the Larceny Act, 1916.

I have reached that conclusion, as the authorities require, by confining my inquiry to a comparison of the factual components of the two offences that are said to correspond. But I am fortified in my conclusion by noting that if I were free to study the statutory evolution of s. 22(1) of the Theft Act, 1968 and to give it a judicial interpretation, I would reach the same opinion.

S. 22(1) is the translation into statutory form of a recommendation that had been made in a report ( Theft and Related Offences , Cmnd. 2977) of the Criminal Law Revision Committee, which had been entrusted with the task of reforming the law relating to theft. In introducing the words or believing into the definition of handling stolen goods, the Committee intended to extend the law as it is set out in s. 33(1) of the Larceny Act, 1916. What they stated in their report (Cmnd. 2977, p 64) was:

It is a serious defect of the present law that actual knowledge that the property was stolen must be proved. Often the prosecution cannot prove this. In many cases indeed guilty knowledge does not exist, although the circumstances of the transaction are such that the receiver ought to be guilty of an offence. The man who buys goods at a ridiculously low price from an unknown seller whom he meets in a public house may not know that the goods were stolen, and he may take the precaution of asking no questions. Yet it may be clear on the evidence that he believes that the goods were stolen. In such cases the prosecution may fail (rightly, as the law now stands) for want of proof of guilty knowledge.

That the change in the law intended by the Committee (who drafted what is now s. 33(1)) was actually effected is a conclusion that is supported by high judicial authority. For example, in Haughton v Smith [1975] AC 476 Lord Hailsham of Marylebone LC (with whose speech in the House of Lords in that case Lord Reid and Lord Salmon agreed) said (at p. 490) that he was sure that:

the expression believed was inserted to guard against acquittals which had taken place under the former Larceny Act when it was necessary to prove knowledge that the goods were stolen and belief was not enough.

And in the same case Viscount Dilhorne said (at 503) of s. 22(1):

The word believing was, I think, inserted to avoid the possibility of an accused being acquitted when there was ample evidence that he believed the goods stolen but no proof that he knew they were.

The fact that there is not total correspondence between the ingredients set out in the warrant and the ingredients necessary for an offence contrary to s. 33(1) of the Larceny Act, 1916, does not, however, dispose of this ground of appeal. If the ingredients enumerated in the warrant were necessarily less in number than those required for an offence under the law of this State, there would be an absence of the correspondence of offences envisaged by s. 47(2) of the Ex: see per O Dalaigh CJ in The State (Furlong) v Kelly [1971] IR 132 at 141. However, the ingredient expressed by the words or believing does not necessarily or invariably extend the scope of the offence specified in the warrant beyond the ingredients of an offence contrary to s. 33(1). The only difference in essence between the factual ingredients of the two offences in question is that the English offence allows believing as an alternative to knowing. If, therefore, the DPP were to lay, mutatis mutandis, an indictment in the factual form set out in the warrant, but omitting the words or believing, he would, on the authority of the decision of this Court in The State (Furlong) v Kelly, be charging a corresponding offence for the purpose of s. 47(2) of the Extradition Act, 1965; for the Irish offence would not have (in the words of O Dalaigh CJ in that case, at p. 141) an additional essential ingredient. On the contrary, the true position is that the English offence has an additional alternative ingredient.

I am therefore compelled by authority to reject this third ground of appeal.

If the process of reasoning and comparison by which correspondence of offences is recognized or not recognized for the purpose of Part III of the Extradition Act, 1965, seems haphazard or otherwise unconvincing or illogical this is a flaw which was pointed out when this Court decided The State (Furlong) v Kelly. The passage of time since the 1965 extradition arrangements were entered into has made those arrangements increasingly more difficult to operate. The Extradition Act, 1965 (which is the Irish counterpart of the [United Kingdom] Backing of Warrants (Republic of Ireland) Act, 1965) excluded in s. 47(2) judicial extradition when the offence specified in the warrant does not correspond with an offence under the law of this State. While in 1965 such correspondence existed between many offences, the extent since 1965 of reform of the criminal law in the United Kingdom and the absence of any corresponding range of reform in this State have sharply reduced the number of corresponding offences. The result is that the envisaged system of extradition has shrunk to the extent that it now operates only vestigially. It is high time that fresh extradition arrangements were negotiated, preferably on the basis of specifying by name or type or conceptual range, the offences for which extradition will be granted, rather than on the basis of the shifting and uncertain foundation of corresponding offences. It is not in accordance with the cooperation against crime that should exist between States, particularly neighbouring States, that immunity from prosecution or punishment should be available to a person charged or found guilty, by the facile device of transferring himself to another jurisdiction where the law does not contain a corresponding offence.

Finally, a word or two is called for on the delay that has taken place in this case. Apart from the accuseds own conduct in breaking bail and putting himself beyond the reach of a trial in London by absconding to Ireland and then bringing proceedings in the High Court in Dublin aimed at resisting extradition, the fact is that the hearing of those proceedings ended on the 7 April 1975, when judgment was reserved. Yet it was not until 6 October 1980, five and a half years later, that the reserved judgment was delivered. There may conceivably have been a good reason for such a delay (although inquiries have failed to elicit any), but it is impossible to hold that, whatever the reasons, such a lapse of time could be said to have served the cause of justice. One of the untoward results of the dilatoriness in disposing of this case in the High Court and in not having the appeal brought on for hearing in this Court earlier (so that it is only now, in October 1981, that the legal fate of a warrant sent here for execution in October 1974 is being finally determined) is that prosecuting authorities in England may be given the false impression that there is less than full commitment in this State to the operation of Part III of the Extradition Act, 1965.

A further unfortunate result of the delay that has bedevilled this case is that the accused cannot be put on trial for the alleged offence until ten years will have elapsed from the date of its alleged commission. What effect that will have on the possibility of a fair trial is, as I have said earlier in this judgment, a matter that may be properly raised only in an English court. Putting things at their best, however, and without allocating or apportioning fault for the glacial pace at which these proceedings have moved to todays culmination, it has to be said that our legal system owed to the accused (and to the State seeking his extradition) a conclusive decision long before now of the proceedings he commenced in the High Court in Dublin in November 1974.

I would dismiss the appeal and allow the extradition ordered by the District Court on 4 November 1974 to be carried out.