Political Offences

Table of Contents

Cases

Quinn v Wren

[1985] ILRM 410
Gannon J
In these proceedings commenced by special summons and heard on affidavit the applicant claims an order under s. 50 of the Extradition Act 1965 for his unconditional release, notwithstanding the order of the District Court made on 19 December 1983 directing his delivery ‘into the custody of a member of Metropolitan Police Force’ of the place therein described as Horseferry Road Magistrates’ Court in England and Wales, to answer a charge of an indictable offence for which a warrant issued ‘by a judicial authority to wit Metropolitan Police District inner London area at Horseferry Road in England and Wales’. The proceedings were commenced within the period of 15 days from the making of the District Court order and are grounded upon an affidavit of the applicant sworn on 10 February 1984 and an affidavit of Florence O’Donoghue, barrister-at-law, sworn on 9 April 1984. Replying affidavits by a detective inspector having charge of enquiries concerning the offence to which the warrant relates, and by a barrister assistant to the Director of Public Prosecutions in England have been sworn and filed on behalf of the respondent.

The offence to which the warrant relates is set out in the warrant exhibited and is as follows:

Accused : John Patrick Quinn.

Address : 13 Rathmeel Lawns, Ballina, Co. Mayo, Eire.

Alleged offence : On 12 November 1980, at Barclay’s Bank, Russell Square, WC2, by deception, dishonestly obtained £600 belonging to Barclay’s Bank Ltd, with the intention of permanently depriving the said Barclay’s Bank of it. Contrary to s. 15 (1) Theft Act 1968.

Particulars of Offence
John Patrick Quinn, on 12 November 1980, did by deception, with a false pretence made with intent to defraud, dishonestly obtain £600 cash, from Barclay’s Bank by falsely pretending that National Westminster Bank travellers cheques numbers: 5-05306202-614 were a good and valid order, with the intention of permanently depriving the said Barclay’s Bank of the said property.

In his replying affidavit sworn on 1 June 1984 John Christopher Barnes, the detective inspector having charge of the enquiries, swears that the applicant, if brought into the United Kingdom jurisdiction, will be charged and prosecuted for offences of forgery and fraud ‘arising out of his encashment in London of stolen travellers cheques’. He further swears that there is no question of the prosecution of these offences only because they may be related to the aims of a political party and without regard to the political activities or motives, if any, of the applicant. In the other replying affidavit the assistant to the Director of Public Prosecutions in England gives an undertaking that the applicant will not be put on trial in any part of England or Wales in respect of an offence or offences under s. 1 of the Prevention of Terrorism (Temporary Provisions) Act 1976. The affidavit in support of the application sworn by Florence O’Donoghue, a barrister-at-law of both the Irish Bar and the English Bar, is made by him in his capacity of barrister-at-law in practice at the bar in England and gives evidence of English law. By way of summary his evidence is: (1) that the Prevention of Terrorism (Temporary Provisions) Act 1976 provides for the conviction and punishment by imprisonment or fine or both of persons who belong or profess to belong to proscribed organisations; (2) that any organisation which appears to the Secretary of State to be concerned in terrorism in the United Kingdom connected with Northern Ireland affairs or in promoting or encouraging it may be included in the list of proscribed organisations; (3) that since 3 July 1979 the INLA is on the list of proscribed organisations in Schedule 1 of that Act; and (4) that terrorism means the use of violence for political ends including putting the public or any section of the public in fear.

Upon the hearing before me on 2 October 1984 counsel for the applicant disclaimed any challenge to the validity of the warrant or in respect of compliance with statutory requirements. The claim to the relief sought is founded upon the facts deposed to by the applicant which, it is submitted, are uncontroverted and establish that the offence to which the warrant relates is a political offence or an offence connected with a political offence.

S. 50 (1) of the Extradition Act 1965 provides that the applicant shall be released if this Court so directs in accordance with the section. Subsection (2) of that section provides, inter alia, that a direction under the section ‘may be given by the High Court when the court is of opinion that — (a) the offence to which the warrant relates is — (i) a political offence or an offence connected with a political offence …’ These statutory provisions cast on the applicant the onus of presenting the court with evidence such that the court may form the opinion which enables the direction sought to be made. The evidence of the applicant as sworn to in his affidavit is as follows:

1. He committed the offence to which the warrant relates.

2. At the time of committing the offence he was a member of the Irish National Liberation Army otherwise INLA.
3. The INLA is a proscribed organisation.

4. He committed the offence on the instructions of the INLA.

5. The nature of the offence and the manner in which and place where it was to be committed was determined by the INLA.

6. He gave the money obtained by him in the commission of the offence to a person believed to be a fellow member of the INLA.

7. The purpose of the offence was to obtain in this criminal manner money for use by the INLA.

8. He had committed a number of similar offences while a member of INLA on the instructions and with the co-operation of other members of the INLA.

9. He did not commit this or any of these offences for his own benefit and all moneys thus obtained by him were so obtained for the use of and given to the INLA.

10. The INLA has need of and uses such money to ‘fund their campaign’.

11. The campaign of the INLA is: ‘The aims and objectives of this organisation are the establishment of a thirty two county workers’ republic by force of arms and, inter alia, a military campaign against the forces of the Crown within the six counties of Northern Ireland, and the United Kingdom and elsewhere’.

12. His own motivation he describes as: ‘From my experience in various republican groups, for the most part as an intelligence officer, I know that the said organisations could not function without money. Funds for the Irish National Liberation Army were either stolen or unlawfully obtained, or raised by donation either in this jurisdiction or other jurisdictions. No arms, weapons or equipment could be purchased without access to money, and I believe that my contribution as an INLA member was in procuring money in the manner described in the warrant and as such I was a vital cog in the attainment of the getting of money and in the advancement of the aims of the organisation of the INLA’.

13. He claims to have never taken part ‘in any events involving an offence of violence used against any person or in any offence involving the use of force or arms whatsoever’.

14. He swears that since approximately 15 to 18 months ago ‘I have severed all links with the Irish National Liberation Army or any other republican organisation or organisations of any ilk’.

In his affidavit the applicant unequivocally identifies himself with the INLA, its membership, its activities and its aims and objectives at the time and place when and where the offence to which the warrant relates was committed by him. His disclaimer of ever being involved in acts of violence or in the use of force or arms against persons is unconvincing. It would be an unwarranted speculation and contrary to the rational probabilities to suppose that the particular sum of money obtained by the commission of the offence to which the warrant relates was applied by the applicant’s fellow-members of the INLA for any innocent or other purpose than that for which it was intended and for which the offence with its attendant risks was expressly committed. The burden of vicarious liability cast upon a person for the acts of others to whom aid, support and encouragement is given with a common intent is not merely a legal concept. Every reasonable person who contributes to another money for the purchase of arms, or explosives, or weapons of violence with the knowledge that when purchased they will be used to cause destruction, injury and death and with the intent that they will be used in such manner as the purchaser may choose, must accept the brand of guilt which attaches to the user. By so contributing he is promoting, encouraging and participating in the acts of violence of the person who has, with his consent, the use of his funds. But the applicant here was not simply a provider of funds from his own resources for the purchase and use by others of weapons of violence. The very acts and means used by him to acquire and provide such funds were initiated, undertaken and applied for no purpose other than the procuring of the instruments of violence with the intention of their violent use by his fellow members of the same organisation. In his affidavit he has proclaimed his identity of motivation, aims and objectives, with those of this illegal organisation in all that he did including the commission of the offence to which the warrant relates. What the INLA did he did, and what he did the INLA did. I cannot reasonably or logically distinguish what the applicant did, which constitutes the commission of the offence to which the warrant relates, from the acts of purchasing with the money he obtained the arms or instruments of violence, nor from the use of such arms in the perpetration of acts of violence. On the facts deposed to in the affidavit of the applicant, it seems to me to be a necessary inference that the offence to which the warrant relates is of the same quality and was committed with the same motivation and to achieve the same objectives or purposes as the acts perpetrated by the use of the arms, weapons or instruments of violence procured by means of the money so obtained.

S. 50 requires the court to form an opinion, such opinion being of its nature an inference from the facts as sufficiently proved and established to the satisfaction of the court. But the inference as to whether or not any one of the enumerated grounds for making a direction under s. 50 exists is a matter of law. In the course of his judgment in Shannon v Fanning [1985] ILRM 385 the Chief Justice declared that the Oireachtas left open to the courts the interpretation of what is a political offence. He said:

It left the matter for the opinion of the court, thus indicating, in my view, a clear intention that what constitutes a political offence is to be decided on the particular facts and circumstances of each case, viewed in the light of the standards and values which obtain in this country at the particular time (at p. 393).

In the course of his judgment in McGlinchey v Wren [1982] IR 154 the Chief Justice said, at pp. 159–160 of the report:

The judicial authorities on the scope of such offences have been rendered obsolete in many respects by the fact that modern terrorist violence, whether undertaken by military or paramilitary organisations, or by individuals or groups of individuals, is often the antithesis of what could reasonably be regarded as political, either in itself or in its connections. All that can be said with authority in this case is that, with or without the concession made on behalf of the plaintiff, this offence could not be said to be either a political offence or an offence connected with a political offence. Whether a contrary conclusion would be reached in different circumstances would depend on the particular circumstances and on whether those particular circumstances showed that the person charged was at the relevant time engaged, either directly or indirectly, in what reasonable, civilised people would regard as political activity.

In the course of his judgment in Shannon v Fanning [1985] ILRM 385 Hederman J said:

A great many things which undoubtedly constitute political activity would not be regarded by most people as either reasonable or even civilised activity but that would not necessarily detract from the character of the offence. The overthrow of a government of a State by armed force with the object of replacing it by another government might very well be regarded by a great number of people as being neither reasonable not civilised but nevertheless it is a classic example of the political offence. The murder, or the attempted murder, of the tyrannical or despotic rulers of a State with the object of replacing them by a democratic government would be regarded as political activity though repugnant to many people who would regard any activity involving violence as being unreasonable and uncivilised. The question is not an easy one for any court to decide becaue in the last analysis to decide whether or not a person had a particular subjective motive is a question of fact which must be decided objectively. In extradition the only person whose motive is under review is the requested person (at p. 400).

The judgment delivered by McCarthy J in Shannon v Fanning read together with the judgment of O Dálaigh CJ in Bourke v Attorney General [1972] IR 36 give a very comprehensive and careful outline of the historical background and the international concepts which are particularly helpful in a court in approaching the assessment of what is or is not a political offence. In the course of that judgment McCarthy J said:

Whilst it is stated that judicial authorities have been rendered obsolete [ he omits here the qualifying words ‘in many respects’], I do not find anything in the judgment to support a contention that there has been a change in the judicial interpretation of what constitutes a political offence or, indeed, as it might be more readily and completely stated, as to what does not constitute a political offence or an offence connected with a political offence. In the common law of England and Ireland represented by case law, I cannot find any decision or expression of judicial opinion at variance with the view that the murder of an elderly woman in her own home in the early hours of the morning did not, without more, constitute a political offence or an offence connected with a political offence (at p. 408).

McCarthy J further goes on to say in the course of his judgment:

In my opinion, without seeking to delimit the circumstances there are to be considered, the objective determination of whether or not an offence charged is a political offence or an offence connected with a political offence within the meaning of the Act should primarily rest upon an assessment of three factors: 1. The true motivation of the individual or individuals committing the offence. I do not share the view that, in order to assess motive, the individual charged must admit his involvement in the crime. 2. The true nature of the offence itself. 3. The identity of the victim or victims. In assessing all or any of these factors, the proximity of each to the alleged political aim is critically important and is capable of objective assessment (at p. 408).

In the context of the case before me the following short extract from the judgment of O Dálaigh CJ in Bourke v Attorney General [1972] IR 36 at p. 61 of the report is apposite:

The statute does not stipulate that the connected offence shall have a political complexion. The statute characterises the first offence only: that offence must be political. The statute does not characterise the connected offence as political. The court in my opinion, should draw the conclusion that the Oireachtas left the connection to be spelt out by the courts in the widest possible manner.

It appears to me therefore that the court in applying the requirements of s. 50 of the Extradition Act 1965 must consider the particular circumstances relating (a) to the offence charged to which the warrant relates, (b) to the applicant and his actions and motives, and (c) to the government or political control of the requesting state for the purpose of ascertaining whether the applicant being the person charged, was, at the relevant time, engaged either directly or indirectly in what the court would regard as political activity. The judgments cited and those referred to by McCarthy J in his judgment recognise the fact that an applicant to the court may be either a refugee from tyranny or a fugitive from justice. It must not be overlooked that the offence in relation to which the circumstances are to be considered is an offence which has been committed in and is contrary to the law of the requesting country. The nature of the procedure prescribed by s. 50 is not such as to require this Court to make any determination upon or form any assessment of an issue between the requesting state and the applicant to the court. This Court is not concerned to enquire whether the applicant was engaged in a good or a bad cause or whether or not the particular offence evokes a sense of revulsion in the court. It must also be borne in mind that the determination that an offence is or is not a political offence does not carry any import of approval or disapproval of the offence by the court in this country. The making of a direction by the court following its determination that a particular offence is a political offence is not an excusing per se of the offence.

The evidence before this Court does establish that there were political objectives in the activity in which the applicant was engaged. The evidence establishes the participation of the applicant in the political activity and that his motivation was to achieve political ends. The nature of the offence is established by the evidence before the court and the fact that the applicant committed the offence to which the warrant relates is established in the evidence. It is also clear from the evidence before the court that the offence to which the warrant relates is not, in fact or in its nature, a political offence. However, as pointed out by O Dálaigh CJ in Bourke v Attorney General this does not conclude the matter if the offence to which the warrant relates is, in fact, an offence connected with a political offence. As pointed out by McCarthy J in his judgment in Shannon v Fanning it is essential to establish in such circumstances the nature of the connection between the offence to which the warrant relates and a political offence. In this area it appears to me the applicant has failed to discharge the onus of proof which falls upon him to obtain the direction sought under s. 50. The weapons or instruments of violence which may have been and, in all probability, were obtained with such money as was acquired by the applicant in the unlawful manner described by him and charged in the warrant may or may not have been used for the commission of one or more political offences. The evidence offered to this Court only shows that the offence to which the warrant relates was connected with all activities of the INLA, whether or not such activities constituted political offences. In my opinion this does not fulfil the requirements of the onus cast upon the applicant by s. 50 (2) (i) as being ‘an offence connected with a political offence’. It is clear from the wording of the section, and as emphasised by O Dálaigh CJ in the portion of his judgment I have already quoted, that the offence, which he refers to as the first offence, must be shown to be political, that being the offence to which the offence referred to in the warrant is connected. I cannot treat the offence to which the warrant relates as connected with a political offence unless there is sufficient evidence to show that the offence with which the offence to which the warrant relates is connected is, in fact, a political offence. The wording of s. 50 seems to require proof that a political offence was committed and that the offence to which the warrant relates was committed in the course of, or preliminary to, in consequence of or in some such way connected with the identifiable political offence.

In my opinion the offence to which the warrant relates in this case is not itself a political offence, nor is there sufficient evidence offered to the courts to establish that such offence is one connected with a political offence. No offence which can properly be classified as a political offence has been established to which the offence to which the warrant relates has been connected. In the circumstances I am not of opinion that the offence to which the warrant relates is either a political offence or an offence connected with a political offence and, consequently, must refuse the application.

SUPREME COURT
FINLAY CJ

delivered his judgment on 28 February 1985 saying: This is an appeal brought by the plaintiff against the dismissal by Gannon J in the High Court of his claim for an order directing his release pursuant to s. 50 of the Extradition Act 1965.

By order, of the District Court dated 19 December 1983 it was directed that the plaintiff should be delivered into the custody of a member of the London Metropolitan Police Force for conveyance to Horseferry Road Magistrates Court, London, on a warrant charging him with an offence contrary to s. 15 (1) of the Theft Act 1968, the particulars of the offence being that he ‘did, by deception, with a false pretence made with intent to defraud, dishonestly obtained £600 cash, from Barclay’s Bank by falsely pretending that National Westminster Travellers Cheques No. 5-05302602-614 were a good and valid order, with the intention of permanently depriving the said Barclay’s Bank of the said property’. The offence thus charged was held in the order of the District Court to correspond with the offence under the law of the State created by s. 6 of the Forgery Act 1913.

No question has arisen with regard to the form of this order nor with regard to the validity or completeness of the documentation leading up to the making of it.

The plaintiff’s claim is that the offence with which he is charged is either a political offence or an offence connected with a political offence within the meaning of those words contained in s. 50 of the Act of 1965 or, in the alternative, that there are substantial reasons for believing that the plaintiff will, if removed from the State under the Act, be prosecuted or detained for a political offence within the meaning of s. 50 (2) (b) of the Act of 1965.

The Facts
The proceedings were heard on affidavit and the plaintiff’s claim for relief was based on his own affidavit, the facts deposed to in which were not contested by any other evidence. These facts have been neatly and briefly summarised in the judgment of Gannon J delivered on 15 November 1984; no question has arisen as to the accuracy of that summary or of the findings of fact thus made in the High Court and the facts so found relevant to the issues arising on this appeal are as follows:

1. He committed the offence to which the warrant relates.

2. At the time of committing the offence he was a member of the Irish National Liberation Army otherwise INLA.

3. The INLA is a proscribed organisation.

4. He committed the offence on the instructions of the INLA.

5. The nature of the offence and the manner in which and place where it was to be committed was determined by the INLA.

6. He gave the money obtained by him in the commission of the offence to a person believed to be a fellow member of the INLA.

7. The purpose of the offence was to obtain in this criminal manner money for use by the INLA.

8. He had committed a number of similar offences while a member of INLA on the instructions and with the co-operation of other members of the INLA.

9. He did not commit this or any of these offences for his own benefit and all moneys thus obtained by him were so obtained for the use of and given to the INLA.

10. The INLA has need of and uses such money to ‘fund their campaign’.

The other material evidence was firstly contained in an affidavit of Florence O’Donoghue, a barrister, of the English Bar and also of the Irish Bar, who deposed that as a matter of law the Irish National Liberation Army was a proscribed organisation, proscribed under s. 1 (3) of the English statute entitled the Prevention of Terrorism (Temporary Provisions) Act 1976, which made provision for the conviction and punishment of persons who belonged or professed to belong to proscribed organisations. Jeraine Dickin Olsen, barrister-at-law, of the English Bar, and an Assistant Director of Public Prosecutions in England, deposed that the Director of Public Prosecutions in English law had a right to intervene in a private prosecution for the purpose of offering no evidence, having previously given an undertaking that the defendant would not be prosecuted for his part in a particular offence and that she had a right, pursuant to the statute establishing the Office of Director of Public Prosecutions in England, to do any act or thing which the Director is required or authorised to do, and undertaking in pursuance of that right that the plaintiff would not be put on trial in any part of England or Wales in respect of an offence or offences under s. 1 of the Prevention of Terrorism (Temporary Provisions) Act 1976. A further affidavit of John Christopher Barnes, a Detective Inspector serving with the Central Cheque Squad, New Scotland Yard, London, deposed to the fact that the offences with which the plaintiff is charged and in respect of which his delivery was sought on warrant, are offences punishable irrespective of the motive of the person’s political activities and that there was no question of those offences being prosecuted only because they might be related to the aims of a political party.

The Law
In the course of the submissions made to the court, the court was referred to the decision of Bourke v The Attorney General [1972] IR 36, McGlinchey v Wren [1982] IR 154 and Shannon v Fanning [1985] ILRM 385.

From these decisions certain conclusions relevant to the instant case arise, which are:

(1) There has not been any comprehensive or complete definition of political offence for the purposes of the law of extradition.

(2) Whilst it is possible and of assistance to identify factors which should be assessed in reaching a decision as to whether any particular offence is or is not a political offence, it is probably neither possible nor desirable to attempt a precise or comprehensive definition. As was stated by O’Higgins CJ in McGlinchey v Wren the court must form an opinion on the facts of each particular case whether the offence in question can properly be described as political.

(3) Historically the purpose of the inclusion in any extradition statute, convention or treaty of an exemption for persons charged with political offences evolved from the concept of political asylum, or to put the matter in another form, is to prevent a political refugee from being unjustifiably surrendered to his political enemies.

The task of the court, therefore, in this as in all similar applications under s. 50 of the Act of 1965 is to interpret the words ‘political offence’ contained in that statute and to apply that interpretation to the facts as found in any particular case and the inferences raised by them.

The Act of 1965, having been passed since the coming into force of the Constitution, the first and fundamental rule which governs that interpretation is that it must be presumed that the Oireachtas intended an interpretation which will not offend any express or implied provision of the Constitution: see McDonald v Bord na gCon [1965] IR 217 and East Donegal Co-Operative Livestock Mart Ltd v The Attorney General [1970] IR 317.

The plaintiff states that he committed the offence charged for the purposes of the INLA, the aims and objectives of which are the establishment of a 32 county workers’ republic by force of arms. The achievement of that objective necessarily and inevitably involves the destruction and setting aside of the Constitution by means expressly or impliedly prohibited by it: see Articles 15.6 and 39. To interpret the words ‘political offence’ contained in s. 50 of the Act of 1965 so as to grant immunity or protection to a person charged with an offence directly intended to further that objective would be to give to the section a patently unconstitutional construction. This Court cannot, it seems to me, interpret an Act of the Oireachtas as having the intention to grant immunity from extradition to a person charged with an offence the admitted purpose of which is to further or facilitate the overthrow by violence of the Constitution and of the organs of State established thereby.

Whilst there exists other grounds on which the plaintiff’s claim may fail including those contained in the careful judgment of Gannon J in the High Court I rest my judgment on this constitutional principle. I am, therefore, satisfied that the plaintiff has not established:

(a) that the offence with which he is charged is, within the true meaning of s. 50 of the Act of 1965, a political offence;

(b) that such offence is connected with a political offence or that there are substantial grounds for believing that the request for extradition has been made for the purpose of prosecuting him for a political offence or an offence connected with a political offence.

In these circumstances I find myself in agreement with the decision of Gannon J and would, therefore, dismiss this appeal.

HENCHY J:

I agree with the judgment delivered by the Chief Justice.

GRIFFIN J:

I also agree with the judgment delivered by the Chief Justice.

HEDERMAN J:

I agree that this appeal must be dismissed. The plaintiff has raised no question either with regard to the statutory formalities of the request or with regard to the sufficiency of the evidence to sustain the charge laid against him. The appeal turns entirely on a claim that the offence charged is either a political offence or an offence connected with a political offence within the meaning of the provisions of the Extradition Act 1965.

The submissions addressed to this Court by both sides on this aspect of the case involve references to the decisions of this Court in three cases — Bourke v The Attorney General [1972] IR 36, McGlinchey v Wren [1982] IR 154 and Shannon v Fanning [1985] ILRM 385. These cases do not, of course, exhaust the full body of case law which is relevant to the subject. Bourke’s case, however, does draw attention to the fact that the Extradition Act 1965 constituted Ireland’s ratification of the European Convention on Extradition 1957, to which this State was a party. Both the Convention and the Act incorporate the concept of a political offence and the concept of an offence connected with a political offence. In fact Bourke’s case was decided on the latter concept.

It is evident from the relevant case law in all common law countries at least, and in other countries with different legal systems, that the concept of ‘political offences’ embraces both absolute and relative political offences. Admittedly there does not appear to be in Irish law, or in any common law country, any exhaustive definition of ‘political offence’ in the law of extradition. Nor indeed is there any uniform international practice in extradition law. It is true that the history of extradition law shows that the exemption for persons charged with either absolute or relative political offences, or offences connected with political offences, evolved from the concept of political asylum, but the evolution of the concept of the political offence followed a consistent pattern in common law countries. In non common law countries the evolution has differed somewhat from country to country. But it is of interest to note that the European Convention on Extradition embraced one common law country, namely Ireland, several civil law countries and a number of Scandinavian countries. The United Kingdom, the only other common law country in Europe, did not ratify the Convention.

While in some circumstances it may be of assistance to identify particular factors which might be assessed in reaching a decision (as appears to be done in some civil law countries), as to whether a particular common offence is or is not a political offence, I agree with the Chief Justice that it is probably neither possible nor desirable to attempt any ‘comprehensive definition’.

When faced with the question of whether any particular common offence is or is not a relative political offence the task of the court centres on the identification of the circumstances in which it could be so regarded or be regarded as an offence connected with a political offence, as indeed was stated by O’Higgins CJ in McGlinchey v Wren [1982] IR 154.

Because of the provisions of Article 39 of the Constitution I must hold that the plaintiff’s claim to motivation for acting as he so did, takes the offence charged outside the meaning of political offence or offence connected with a political offence as set out in the Extradition Act 1965. I also agree that it has not shown that there are substantial grounds for believing that the request for extradition has been made for the purpose of prosecuting him for a political offence or an offence connected with a political offence.

McCARTHY J:

I have read the judgment of the Chief Justice and I respectfully adopt the summary of the relevant facts contained in it. I share his view that it is probably neither possible nor desirable to attempt a precise or comprehensive definition of what is a political offence.

In the course of argument, being asked to state under which pole of a political exclusion it was sought to place the offence charged in the warrant, counsel for the appellant identified it as an offence connected with a political offence. It follows that the offence itself is obtaining money by false pretences; it is not clear with what political offence that offence is connected. The appellant, as was found by Gannon J, committed the offence in order to obtain money to fund the campaign of the INLA which campaign is described in a manner which necessarily includes the overthrow by force of arms of the organs of State, including the courts. The proposition, which the appellant’s case involves, that the courts should grant protection to a person charged with an offence stamped with such a purpose is ludicrous.

I too would dismiss this appeal.

Russell v Fanning

[1988] ILRM 333

Robert Peter Russell (the appellant) was, on 29 May 1981, convicted of the attempted murder of Detective Superintendent Charles Ernest Drew of the Royal Ulster Constabulory, on or about 17 May 1978 in Belfast, and of certain other associated crimes arising out of the same incident and was sentenced to twenty years’ imprisonment.

Against that conviction and sentence the appellant appealed, and on 19 May 1982 the Court of Appeal set aside the conviction and directed a new trial. As a consequence of that re-trial the appellant was on 15 November 1982, in the Crown Court in Northern Ireland, again convicted of the said offences and a sentence of 20 years’ imprisonment was imposed upon him.

He was detained to serve that sentence in the Prison at Maze, Hillsborough, Co. Down, and on 25 September 1983 in company with a number of other prisoners he escaped from that prison.

It would appear that the escape was made with significant violence and one member of the prison staff was killed and a number of others were injured in the course of that escape.

A total of 19 warrants were issued in Northern Ireland charging the appellant with murder and with other offences all arising out of the escape from the Maze Prison. The Appellant was arrested on 26 May 1984 in Dublin and brought before the District Court where, on 31 May 1984, orders were made in each of the 19 cases for his delivery to Northern Ireland on foot of the warrants.

On 13 June 1984 the appellant instituted proceedings by special summons, pursuant to the provisions of s. 50 of the Extradition Act 1965, claiming an order pursuant to that section directing his release. In short, the basis of the claim being made was that the offences in respect of which the warrants had been issued were political offences or offences connected with a political offence, within the meaning of s. 50 or, in the alternative, that there was good reason to believe that, if returned to Northern Ireland, the appellant would be charged either with a political offence or with an offence connected with a political offence. On the affidavits in support of that summons having been filed and upon the matter coming before the court it became apparent that the appellant was seeking to rely on matters other than those within the provisions of s. 50 in order to seek to prevent his delivery pursuant to the order of the District Court. By agreement between the parties, the High Court then permitted an application to be made pursuant to Article 40 of the Constitution so as to permit all available grounds to be argued on behalf of the appellant in relation to the order of the District Court directing his delivery to Northern Ireland.

The combined proceedings so issued came before O’Hanlon J. in the High Court and were tried on affidavit. On 14 February 1985 the learned trial judge having delivered a reserved judgment dismissed the appellant’s application for release on all the grounds upon which it had been made before him.

Against that decision the appellant appealed to this Court.

On 24 September 1986 a further application was made on behalf of the appellant in the High Court for an inquiry under Article 40 of the Constitution as to the legality of his detention and for a conditional order of certiorari to quash the orders made by the District Court on 31 May 1984 directing his delivery to Northern Ireland.

The grounds on which this application was made were that the warrants in pursuance of which the order for delivery was made could not, within the meaning of the provisions of the Extradition Act 1965 have appeared to either the Commissioner of the Garda Siochana or to the learned District Justice to have been issued by a judicial authority in Northern Ireland and were not in fact issued by a judicial authority in Northern Ireland.

It would not appear that any issue arose in the High Court by reason of the fact that this application for a conditional order of certiorari was made over two years after the making of the order by the District Court which was challenged and this fact was neither explained on behalf of the appellant, nor was it apparently relied on on behalf of the Learned District Justice.

This Court has been informed that at the time when these proceedings were instituted the appellant was detained in prison in the State and was serving a sentence imposed upon him within this jurisdiction.

Cause having been shown to the conditional order the matter was tried by Barr J. in the High Court on affidavit, two of the deponents being lawyers deposing to questions of law and practice in Northern Ireland, having been cross-examined on their affidavits. He reserved judgment, and on 19 January 1987 dismissed the application for habeas corpus and allowed the cause shown to the conditional order and set aside the conditional order.

Against that decision the appellant also appealed to this Court and at his special application the court postponed the hearing of the appeal previously filed with it so as to permit of all proceedings being heard on appeal at the same time.

Whilst the two notices of appeal which were served set out a number of grounds, the only grounds which were pursued before this Court on the hearing of the appeal were as follows.

1. That the offences in respect of which the 19 warrants were issued were either political offences or offences connected with a political offence, being connected with the offence of the attempted murder of Det. Supt. Drew of the RUC.

2. That on the evidence adduced in the High Court O’Hanlon J. was forced to the conclusion that if the appellant were delivered on foot of these Warrants to the Royal Ulster Constabulary in Northern Ireland, there was a probability that he would be subjected to torture, assault, battery and inhuman treatment at the hands of the prison officers in The Maze Prison and that under those circumstances, to order his delivery was to deny him his fundamental constitutional rights.

3. That on the affidavits filed in the High Court in the proceedings before O’Hanlon J. of the experience of Dominick McGlinchey and James Shannon who had previously been delivered on foot of orders made pursuant to the Extradition Act of 1965 to stand trial in Northern Ireland, O’Hanlon J. had erred in refusing to hold that there was a probability that if the appellant were delivered to Northern Ireland, he would be interrogated by members of the RUC concerning the offences with which he is charged, and, furthermore, that there was a probability that for the purpose of such interrogation he would be diverted and not brought before a magistrate’s court as soon as practicable and that to deliver him on foot of the detention order, having regard to that probability, was to deny him his constitutional right of fair trial and proper procedures.

4. Each of the warrants in respect of which the orders of the District Court were made, having been signed by a person designated as a justice of the peace it was submitted that that designation could not satisfy the requirements of the Extradition Act 1965 with regard to the document appearing to be signed by a judical authority to either the Commissioner or the District Justice and that furthermore a Justice of the Peace in Northern Ireland was not, on the evidence adduced before Barr J., a judicial authority.

With regard to these submissions, I have come to the following conclusions.

In his various affidavits the evidence of the plaintiff on this issue may thus be summarised.

1. He denies having participated in the shooting at Det. Supt. Drew, but says that he was at that time a member of the IRA and that the attack on Det. Supt. Drew was carried out by the IRA.

2. He states that the aims and objectives of the IRA which he shares are the reintegration of the national territory and the expulsion of British rule from Northern Ireland by force.

3. He states that one of his purposes in escaping from the Maze Prison was to resume as a member of the IRA his campaign to expel the British authorities from Northern Ireland by force.

4. He states that once the national territory has been reintegrated, by whatever means that is achieved, it would be his desire, aim and objective that the normal democratic process operating under the rule of law in accordance with the provisions of the Constitution of Ireland should be the sole governing principles of the political structure and organisation of the entire island of Ireland.

On this issue O’Hanlon J. decided that having regard to the decision of this Court in Quinn v Wren [1985] ILRM 410 he was bound to interpret s. 50 of the Extradition Act 1965 as excluding from the meaning of ‘political offence’ offences committed for the purposes set out and with the aims and objectives set out in the appellant’s affidavit. With that decision I agree.

It was submitted on behalf of the appellant, firstly, that this Court should overrule its decision in Quinn v Wren and, secondly, that it was possible to distinguish on the facts the case of Quinn v Wren from the present case.

I see no reason to alter the view expressed by me in Quinn v Wren and I am satisfied that the principles laid down in that case must be applied.

Those principles are that the Extradition Act of 1965 having been passed since the coming into force of the Constitution, the first and fundamental rule which governs the interpretation of it must be the presumption that the Oireachtas intended by its provisions not to offend against any express or implied provision of the Constitution. The meaning of political offence within the provisions of s. 50 of the Act of 1965 cannot therefore be construed as granting immunity from extradition to a person charged with an offence the purpose of which is to subvert the Constitution or usurp the functions of the organs of State established by the Constitution.

The objectives for which on the affidavits of the appellant the attack was made on Det. Supt. Drew and the objectives which were a factor in the escape by the appellant from the Maze Prison were to achieve the reintegration of the national territory by force of arms. The appellant states that he is a member of an organisation, the Provisional IRA, which intends to carry out that task.

The Constitution and in particular Articles 6.1 and 6.2 make it clear that, subject to the provisions of the Constitution, decisions as to the method by which the national territory is to be reintegrated are matters for the Government subject to the control of Dail Eireann, and that the carrying out of those decisions is exercisable only by or on the authority of the organs of State established by the Constitution.

Any person or group of persons is, of course, entitled to advocate a particular policy of reintegration, whether that is or is not consistent with existing Government policy from time to time.

For a person or group of persons, however, to take over or seek to take over the carrying out of a policy of reintegration decided upon by himself or themselves without the authority of the organs of State established by the Constitution is to subvert the Constitution and to usurp the function of Government. In my view, political offence within the meaning of s. 50 of the Extradition Act 1965 cannot be construed so as to grant immunity to a person who admittedly has, in respect of the matters with which he is charged, that objective. This ground of appeal must therefore fail.

In the context of this ground of appeal, it is to be noted that in an affidavit sworn by the appellant on 20 October 1984 he admitted membership of the IRA and, while denying that he took part in the attempted murder of Detective Superintendent Drew, he stated that that attempt was carried out by the IRA and that within twenty-four hours of the event the IRA admitted that they were responsible for attempted murder. The applicant or his legal advisers apparently became conscious of the effect those averments might have on his claim to immunity from extradition because of the political exception, for on 16 May 1985 he swore a further affidavit in which he stated that his aims and objectives, and the aims and objectives of the IRA, are to bring an end to British rule in Northern Ireland, and that it is not his desire or objective to overthrow the Constitution of Ireland. It is notable that the appellant did not attempt to say that the aims and objectives of the IRA are confined to ending British rule in Northern Ireland, nor does he deny what has been shown in other cases (e.g. State (Lynch) v. Cooney [1982] IR 337), namely that the IRA is an organisation committed to undermining by force the organs of State established by the Constitution. The fact is that the IRA has, by an order made under s. 19 of the Offences Against the State Act 1939, been declared by the Government to be an unlawful organisation. Having regard to the cases (see s. 18 of the Act) in which such an order can be made, it would seem to be difficult to show that the IRA is not an organisation which is committed to undermining the organs of state established by the Constitution. However, as no evidence on the matter was adduced in this case by the respondent, I would confine myself to expressing the opinion that where a crime is alleged to have been committed outside the State as part of the activities of an organisation which is committed to overthrowing or undermining by force the organs of state established by the Constitution, a person whose extradition is sought because of his participation in that crime could not be entitled to escape extradition, on the ground of the political exception, by relying on personal aims or objectives which are less extensive than those of the organisation in question. If he acted under the aegis of such an organisation whose aims and objectives he must have known, he could not, on the true application of the decision of this Court in Quinn v Wren [1985] IR 322, acquire the benefit of the political exception by falling back on a mental reservation which would be incompatible with the organisation in question.

Assault and ill-treatment of prisoners recaptured after the mass break-out from The Maze Prison
Affidavits were filed on behalf of the appellant; sworn by Peter Dullaghan, Patrick MacIntyre, James Burns, Peter Hamilton, Brendan Meade and James Gerard Donnelly.

Each of these persons was a prisoner in The Maze Prison on 25 September 1983 and escaped from the prison on that date. Each of them was shortly thereafter recaptured. Each deposes in his affidavit to being beaten and assaulted by prison officers on recapture and on return to the prison. Each also complained of being deprived of clothing and receiving illegal and inhuman treatment and punishment after return to the prison.

In so far as these affidavits alleged assault and battery by prison officers, no individual prison officers were named, but no evidence contradicting the general allegations of assault and battery was filed on behalf of the defendants. In so far as complaint was made with regard to the prisoners being deprived of their clothing and receiving unusual punishment and treatment after their recapture, an affidavit by a prison officer was filed controverting these matters and explaining them.

The appellant’s case is that in the light of the uncontradicted evidence of these prisoners the only conclusion that learned trial judge could draw from the evidence before him was that there was a probability that if the appellant was returned to Northern Ireland to await trial on the charges contained in the warrants on return to prison therein he would be subjected to the same treatment.

I would accept that if a court upon the hearing of an application to set aside an order for delivery under the Extradition Act 1965 were satisfied as a matter of probability that the applicant would, if delivered into another jurisdiction, be subjected to assault, torture or inhuman treatment it would, in order to protect the fundamental constitutional rights of that applicant be obliged to release him from the detention and to refuse to deliver him out of the jurisdiction of these courts.

In the course of his judgment dealing with this issue, O’Hanlon J. stated as follows:

Once again the evidence tendered on behalf of the plaintiff stopped short of alleging or establishing the existence of a practice of ill-treatment or the use of unlawful violence by prison staff against prisoners in the Maze Prison. If the prisoner’s rights were infringed in the manner described immediately after their recapture in 1983, they are being given an opportunity to vindicate their rights in court in the civil proceedings which are now pending. I am of opinion that by reason of

(a) the lapse of time which has occurred since the outbreak took place,

(b) the civil proceedings for damages which other prisoners are now prosecuting, and

(c) the publicising of these allegations in the present proceedings, coupled with the response evoked from the prison authorities, it is reasonable to assume that the safe conduct promised in paragraph 10 of Mr. Hassan’s Affidavit is well-founded.

Accordingly, Ground 3 has not been established to my satisfaction as a sufficient ground for granting the relief sought by the plaintiff.

The safe conduct promised in paragraph 10 of Mr Hassan’s affidavit, referred to by the learned trial judge, is in the following terms:

If the plaintiff is returned to the custody of the Northern Ireland Prison Authority, I verily believe that he has no reason to fear that he will be subjected to any assault, ill-treatment or irregular practice at the hand of any prison officer.

The Mr Hassan referred to is a Governor, Class 3 of The Maze Prison, Hillsborough, Co. Down.

The onus of establishing the probability that if delivered out of the jurisdiction he would be deprived of his constitutional rights by being subjected to improper or unfair treatment, rests upon the person resisting delivery.

The function of a judge hearing an application for an order of habeas corpus in relation to an order for delivery under the Act of 1965 is on all the evidence presented to him to reach a conclusion as to whether it has been established that it is probable that some such ill-treatment or unfair procedure will be experienced by the person if delivered out of the jurisdiction.

That function the learned trial judge in this case carried out on the evidence before him which consisted of evidence on affidavit, and his judgment therefore does not involve findings with regard to the credit-worthiness of witnesses who have given oral evidence. On appeal, accordingly, I am satisfied that I should look at the evidence before the learned trial judge and reach a conclusion as to whether the inference which he drew from it is the correct one. That I have carefully done, and I am satisfied that the correct conclusion from the evidence adduced in this case is that it is very improbable indeed that this appellant will, if delivered out of the jurisdiction, to Northern Ireland, be subjected to any form of ill-treatment or degrading treatment by prison officers. I would therefore dismiss the appeal under this heading also.

Probability of interrogation and/or delay in bringing the Appellant before a Magistrate’s Court
It was submitted on behalf of the appellant that the evidence led inevitably to the conclusion that if the appellant were delivered out of the jurisdiction, he would not be brought before a magistrate as soon as practicable as would be the obligation of the authorities in Northern Ireland, but that instead he would be diverted and delayed from that for the purpose of being subjected to interrogation by the police in Northern Ireland, even though that interrogation might be concerning the charges which are against him. It was submitted that such delay and diversion would be an unfair and prejudicial procedure to which this Court should not subject the appellant.

This contention was based on the experience of one Dominic McGlinchey who was delivered out of this jurisdiction for trial in Northern Ireland in respect of what might be described as a ‘terrorist offence’ and on evidence with regard to one James Shannon similarly delivered out of the jurisdiction. In the case of McGlinchey, he was delivered into the custody of the police in Northern Ireland, close to midnight on a Saturday night at the Border. He was brought to Newry and from thence to Ballymena Police Station. He was transferred from there to Castlerea Police Station in Belfast where he was detained until some time in the afternoon of the following Monday, when he was returned to Ballymena Court and brought before a magistrate. During the period whilst he was in Castlerea Police Station he was regularly interrogated by members of the police. A number of affidavits were filed by members of the Royal Ulster Constabulary, dealing with the interrogation of McGlinchey, and each of them contains a detailed denial that he was interrogated about any case or charge other than the charge in respect of which his delivery had been sought. No explanation is afforded in any of these affidavits as to the delay between the time of his transfer into the custody of the Royal Ulster Constabulary and the time he was brought before a magistrate.

Reliance was placed on this absence of any explanation and it was suggested that these affidavits should be construed as asserting a right on the part of the Northern Ireland Police Authorities to delay the bringing of a person delivered to them before a court or judge so as to interrogate him.

In the High Court the grounds on which the appellant sought to prevent his delivery out of this jurisdiction were set out under seven separate headings in writing in a document exhibited in the affidavit filed by the appellant seeking the relief which he claimed.

The matters submitted on this appeal under the heading with which I am now dealing were set out in a wholly different manner at Ground No. 2 on the hearing in the High Court. That ground reads as follows:

That there are substantial reasons for believing that the Applicant, if removed from the State under this part of the Act, will be detained for interrogation in regard to political offences, or offences connected with political offences, as has been the practice of the police authorities in Northern Ireland in the case of other persons extradited to that jurisdiction.

It was clearly to meet that ground that affidavits by members of the RUC were filed in the application before the High Court. It is presumably therefore for that reason that they are concentrated on the question as to whether McGlinchey was interrogated about matters other than the charges in respect of which his delivery was sought. There does not appear in any of the grounds submitted on behalf of the appellant in the High Court to be any reference to the question of the evidence of either McGlinchey or Shannon establishing a diversion from their being brought before a judge or court for the purpose of interrogation.

In these circumstances I do not consider that the evidence of the experience of McGlinchey or the evidence that Shannon who was delivered at approximately 8.30 p.m. into the custody of the Royal Ulster Constabulary was not brought before a court until the following day at 3.30 p.m., establishes any probability that any prejudical or unfair procedure under this heading would be applied to the appellant if he is delivered out of the jurisdiction.

If it was shown as a matter of probability that there existed a policy or system being operated by the police authorities in Northern Ireland whereby persons delivered into their custody from this jurisdiction, pursuant to the Act of 1965 were not brought as soon as was reasonably practicable before a magistrate as the warrant would require, but rather were diverted so as to be interrogated either with regard to the charge in respect of which the delivery took place or with regard to other charges, different considerations would undoubtedly apply.

Similarly, it would not appear that the court in any case should order a delivery out of the jurisdiction pursuant to the Act of 1965 if it was established as a matter of probability that the real purpose of the delivery was not to bring the person delivered before a court so as to charge him with an offence in respect of which the authorities had prima facie evidence against him, but rather to interrogate him in the hope of obtaining by way of admissions some such evidence.

I am, however, satisfied that neither of these matters has been established by the appellant in this case as a probability, and there are no reasons why the court should refuse to deliver him out of the jurisdiction on either of these grounds.

Judicial authority
All the warrants with which this case is concerned are signed by a person described as a Justice of the Peace and his signature is in each case verified by a constable of the RUC who states that he is well acquainted with his signature and describes him as a Justice of the Peace for the County Court Division of Ards.

S. 54(1) of the Act of 1965 provides:

Where the Commissioner receives a document appearing to be a warrant issued by a judicial authority in a place in relation to which 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 a judical authority in accordance with the law of that place …

By s. 55(1) of the Act it is provided:

In any proceedings, unless the court sees good reason to the contrary—(a) a document appearing to be a warrant issued by a judical authority in a place in relation to which this 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 a warrant and as having been duly signed and issued by a judicial authority in accordance with the law of that place;

The submission of the appellant, having regard to these two subsections is that a warrant could not appear to either the Commissioner or to a District Justice to be issued by a judicial authority unless it stated on its face that the person issuing it was a judicial authority. It is suggested that the words ‘Justice of the Peace’ has no meaning in this context and that there are no grounds on which a person could conclude that a Justice of the Peace appeared to him to be a judicial authority. I reject this submission. It seems to me that the words ‘Justice of the Peace’ have in ordinary language a meaning which would lead a layman to accept or believe that it probably indicated a person exercising judicial authority. Furthermore, I think it permissible to have regard to the history of judicial authorities in this State, where prior to 1922 an office of Justice of the Peace did exist and quite clearly was an office the holder of which exercised in various types of cases and in various ways a judicial authority. cf. District Justices (Temporary Provisions) Act 1923. It does not seem to me unreasonable to assume that both the Commissioner of the Garda Siochana and a District Justice would be aware of this historical fact and of the meaning then ascribed in this jurisdiction to a Justice of the Peace. The standard set in s. 54(1) and s. 55(1) of the Act of 1965 is low, requiring only that the document would appear to have been issued by a judicial authority. Presumably the purpose of that is to permit of the initiation of proceedings, there being from the very first time the person is brought before the District Court an ample opportunity to inquire into and to test whether in fact the warrant has been issued by a judicial authority. I am satisfied the first part of this submission therefore fails.

Evidence was given both on affidavit and orally on cross-examination by Philip Magee who is a member of the Bar of Ireland and a member of the Bar of Northern Ireland, and by Brian Francis Kerr, QC, a member of the Inner Bar of Northern Ireland. In effect they both agree that a Justice of the Peace in the law of Northern Ireland was clearly a person carrying out judicial duties and must in the law of that jurisdiction be considered as a judicial authority. Notwithstanding this agreed conclusion, it was contended on behalf of the appellant that because the evidence established that a Justice of the Peace in Northern Ireland was appointed by the Lord Chancellor and could at the will of the Lord Chancellor be dismissed from his appointment and because he was not necessarily a person with any legal training or experience, although he might be a judicial authority in Northern Ireland that he could not be considered according to the standards of what is the meaning of a judicial authority in this jurisdiction to be such within this jurisdiction and that that was the test that should be applied under s. 54 and 55, and also under the provisions of s. 43.

Firstly, I reject the submission that the definition of a judicial authority contained in s. 43, s. 54 and s. 55 falls to be tested by the law of this jurisdiction when the Sections so expressly and unambiguously provide that the necessity is that the Warrant has been insured by a judicial authority in a place in relation to which this part applies (emphasis added).

Quite apart from that view, I also conclude that in the ordinary meaning of the words ‘judicial authority’ there is no warrant for suggesting that in our law a person who does not have security of tenure or who does not have a legal training or experience cannot fall within the category of a judicial authority.

I am, therefore, satisfied that this submission also fails.

I would, therefore, dismiss this appeal.

HEDERMAN J:

The learned trial judge in the present case has found that the offences in question are to be regarded as political offences, and that some of them can also be regarded as offences connected with a political offence. One would have expected the learned trial Judge to have applied the mandatory provision of the Extradition Act 1965, s. 50, and ordered the release of the applicant. To use the words of Henchy J. in McMahon v Leahy [1985] ILRM 422:

If that be its true nature, the plaintiff cannot be extradited for it. In accordance with s. 50(2) he would be entitled to what I may call the political exemption. (at p. 434).

The judge must apply the law except where he is of opinion that it is invalid having regard to the provisions of the Constitution or inconsistent with the Constitution, as a law which has not been carried over under Article 50 of the Constitution. No such ground arises in the reasoning of the trial judge. Instead he seeks to equate the present case and its facts with the case of Quinn v Wren reported in [1985] IR 322.

In the case of Quinn v Wren the applicant had made the case that he committed the offence charged ‘for the purposes of the INLA the aims and objectives of which had the establishment of a 32 country workers’ republic by force of arms’. In that case the Chief Justice in the course of his judgment rightly says that the achievement of that objective necessarily and inevitably involved the destruction and the setting aside of the Constitution by methods or means which were expressly or impliedly prohibited by Articles 15.6 and 39 of the Constitution. He went on to hold that the court could not

interpret an Act of the Oireachtas as having the intention to grant immunity from extradition to a person charged with an offence the admitted purpose of which is to further or facilitate the overthrow by violence of the Constitution and the organs of State established thereby.

The learned trial judge stated that he could not see any real distinction between ‘the aims and objectives of which are the establishment of a 32 county workers’ republic by force of arms’ and ‘a campaign for the ending of British rule in Northern Ireland’. The learned trial judge goes on to hold that he is bound under the authority of Quinn v Wren to hold that s. 50(2)(a) of the Extradition Act, 1965 did ‘not extend to the present case by reason of the fact that the offences alleged to have been committed by the plaintiff were committed for the purpose of promoting the objectives of the Irish Republican Army’.

It is well established in the decisions of this Court that all cases such as this must be decided on their own particular facts and circumstances and what is in issue here is the activity and motivation of the applicant. It is also quite clear that not every activity of the Irish Republican Army committed outside the jurisdiction of this Court can be regarded as a political offence or an offence connected with a political offence simply because the general objectives of the Irish Republican Army are political. Likewise it is equally clear that simply because an act is an act committed by a member of the Irish Republican Army in pursuance of the political objectives or some of the political objectives of that organisation outside this jurisdiction it cannot be deemed to be or held to be always outside the protection of the exemption provisions of s. 50(2) of the Act of 1965.

There is an essential difference in the facts which were established in Quinn v Wren and the facts established in the present case. Nowhere is there any evidence that the offences with which the applicant in the present case is charged were directed or intended to be directed against any of the institutions of this State or directed towards overthrowing the institutions of this State.

The learned trial judge looks to Article 6 of the Constitution as the basis for his refusal to apply the provisions of s. 50 of the Act. Article 6 of the Constitution is the Article which sets out the division of powers of Government between the executive, the Legislature and the Judiciary and declares that all powers of Government derive—‘under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.’ It goes on to provide that—‘these powers of government are exercisable only by or on the authority of the organs of State established by this Constitution’. So far as this latter provision is concerned, there is nothing whatever in this case, to indicate that the applicant or his associates have at any time in reference to the cases under review, claimed or purported to exercise the powers of Government granted by Article. 6 of the Constitution.

The reunification of the national territory, which consists of the whole island of Ireland, its islands and the territorial seas (see Article 2 of the Constitution), is by the provisions of the preamble to the Constitution and of Article. 3 of the Constitution a constitutional imperative and not one, the pursuit of which, or the non-pursuit of which is within the discretion of the Government or any other organ of State. Therefore, the only question of policy which arises, is as to the manner in which this may be achieved. The Constitution does not lay down any manner in which this policy is sought to be achieved, though, of course, it is within the competence of the Government, and of the Oireachtas, to decide from time to time, what policy to adopt to achieve or to secure the reunification of the national territory. The learned trial judge based his reasoning on the phrase—‘It is for the people to decide when, and by what means, they wish to achieve the reintegration of the national territory’. It is undoubtedly within the competence of the Government of Ireland and the Oireachtas to decide from time to time whether or not this aim should be pursued by peaceful means or by warlike means. In so doing they are deciding how the State should pursue it. It is a perfectly legitimate right of the citizens or any group of citizens or of persons outside the State to express views which are contrary to those expressed by the Government or the Oireachtas. If, within the State the expression of such views amounts to an offence, then it is a matter for the domestic law to deal with it. For example, there are ample provisions in the Offences Against the State Act 1939–40 to deal with any attempt to subvert the organs of State or to endeavour to overthrow the Constitution or the institutions established by the Constitution. No such allegation is made in the present case, nor is it alleged that any of the offences for which the applicant is sought to be extradited is an offence for which the protection of the law of the State can be withdrawn from him because he does acts outside the State which, if done within the State would be a violation of the domestic law. In his judgment in the case of Shannon v Fanning [1985] ILRM 385, O’Higgins CJ drew attention to the fact that apart from the exclusion of s. 3 from the scope of ‘political offence’, of the taking or attempt to take the life of a head of State or a member of his family, the Extradition Act does not indicate or define what is meant by the expression ‘political offence’. He went on to express the view with which I agree:

In my view it follows that what constitutes a political offence falls to be determined in each case, having regard to the act done, and the facts and the circumstances which surrounded its commission—the onus being on the person claiming the political exception to establish that the offence to which the warrant relates comes within its protection. (at p. 392).

He went on to say:

I am prepared to accept, even apart from the plaintiff’s assertion to that effect, that one of the stated aims of his organisation (the Provisional I.R.A.) is the achievement of ‘the reunification and re-integration of the national territory’. It is not to be assumed, however, because of this fact, that everything done by or on behalf of this organisation comes within the political exception (at p. 393).

In my own judgment in that case I said:

For many years the Provisional I.R.A in Northern Ireland have been endeavouring by force of arms to expel the British administration and its armed forces for the avowed purpose of reuniting Northern Ireland with the rest of the island to the exclusion of the Government of the United Kingdom. It is common knowledge that there is an armed conflict in progress for many years in Northern Ireland between the Provisional I.R.A. and the defence forces and the security forces of the United Kingdom. They in turn respond by employing counter-insurgency methods and tactics. This state of affairs was recognised by the Oireachtas in 1976 when pursuant to Article 28.3.3° of the Constitution each House of the Oireachtas resolved that ‘arising out of the armed conflict now taking place in Northern Ireland’ a national emergency exists affecting the vital interests of this State. (at p. 398).

This Court in its judgment in the matter of Article 26 of the Constitution and in the matter of the Emergency Powers Bill 1976 in re. [1977] IR 159 accepted that it had been established, at least prima facie, that the facts stated in the resolution were correct and those presumptions remain unless or until displaced. The court went on to express the view that they had not been displaced.

The Oireachtas still maintains this view and the resolution referred to is still in force. It is abundantly clear that the activities the subject of this case are part of that conflict in which, according to the resolution of the Oireachtas, this State is not a participant. Article. 28.3.3° was an Article which was the subject of a constitutional amendment and the sub-section applied either to a time of war or a time of armed rebellion. It is clear that armed rebellion is armed rebellion against this State. The amendment aimed to extend the expression ‘time of war’ to include an armed conflict in which the State is not a participant. That obviously referred to an armed conflict outside the State. If the Oireachtas was of opinion that any such armed conflict in effect amounted to an armed rebellion within this State it would have said so as it has had ample powers to do so. It seems therefore to me that the learned High Court judge incorrectly equated insurrectional activity outside the jurisdiction with an attack upon this State. It appears to follow from the judge’s reasoning that if the State here took the view that the achieving of this objective by armed conflict or other violent means was not to be discouraged or indeed was even to be encouraged that his decision in the present case would have been opposite to what it was. In effect therefore what the judge has decided is that because the policy of this State in the matter of national reunification, rules out violence, anybody outside this jurisdiction, who attempts to achieve this objective by the use of violence, is guilty of an attack upon the Constitution itself and upon the organs established by the Constitution. It is surprising that the Oireachtas has not enacted any law to make any such activity a crime under the law of this State.

What is happening in Northern Ireland is that a small fraction of the population there has raised a political revolt against the administration with a view to overthrowing that administration. This type of revolt or insurrectional activity is the classic form of political offence.

It appears to me to be straining the law considerably to decide whether or not to afford the statutory protection provided by the Oireachtas on a determination on whether or not it conflicts with the policy of this State on that matter. If that were to be the criteria then it would arise in respect of conflict in any part of the world in respect of which this State has a policy. In many parts of the world there are armed conflicts which are purely political in character, which seek to overthrow governments of particular states, some of which are democratic governments and some of which are not. If the State sympathises with or actively supports the replacement of an undemocratic government as a matter of foreign policy, but expressly rules out the use of violence, is it to be said that any person who takes part in an armed conflict to achieve that purpose and who seeks refuge in this State is to be refused protection of the Extradition Act simply because the method he has chosen is in conflict with the method approved by the policy of this State? I am not aware of any law in this State which prohibits anybody publicly urging the raising of an armed revolt in another State, aimed at the overthrow of the Government of that State or urging Irish support for any such revolt, even though such policy is contrary to the stated policy of the organs of Government of this State.

It is clearly stated in the Burke case by this Court that for example, the offence of treason would be a political offence. A person seeking refuge in this country from a charge of treason from another state would be afforded political asylum irrespective of whether or not his alleged treason conflicted with the policy of this State. If, in fact, the present applicant was wanted on a charge of treason in Northern Ireland, would the courts here refuse to apply the protection afforded by s. 50 of the Extradition Act simply because the ‘treason’ amounted to doing something which was contrary to the policy of this State. I should hope not. The defence of ‘political offence’ or ‘offence connected with a political offence’ must be granted irrespective of whether the courts or the Government or the Oireachtas or any other organ of State approves or disapproves of the activity in question once it is a political offence. To say that something is deemed not to be a political offence within the meaning of the Act simply because it is at variance or is contrary to the policy of the State in respect of an event happening outside the State is completely to alter the whole basis and intent of ‘political offence’.

In the case of McMahon v Leahy [1985] ILRM 422, the applicant, whose extradition was sought for escaping from prison in Northern Ireland, asserted that he and his co-escapees were members of the Provisional I.R.A. had been sentenced to prison in respect of robbery and the unlawful possession of firearms carried out on the orders of the Provisional I.R.A. to fund the campaign for the liberation of Northern Ireland from British rule. Four of his companions had several years earlier been freed by the High Court on the grounds that the offences were political offences and no appeal had been taken to this Court. In the case of McMahon it was sought to argue that they were not political offences and the High Court held that the plaintiff had not established on the facts of the case that the offences were in fact ‘political’. When the matter came to this Court, without deciding whether they were or they were not political, this Court held that the circumstances were such that the State should not be allowed to argue that they were not political in view of the attitude taken in the other cases, namely, the failure to appeal the decisions of the High Court. Notwithstanding that these cases concerned activities which were aimed at the overthrow of the British administration in Northern Ireland by force of arms, this Court held that his appeal should be allowed and a direction made under s. 50(2) of the Extradition Act 1965, on the ground of political exemption and went further by expressly extending to the plaintiff the protection of Article. 40. 1 of the Constitution.

In the present case the view expressed by the learned trial judge was to the effect that the activity in question which was in no way substantially different from the activities in the McMahon case put him outside the protection of the Extradition Act. It appears to me to be in basic conflict with the decision of this Court to hold that McMahon’s constitutional rights were being violated by the effort of the State to show that his activities did not come within the ‘political defence’ in the circumstances of that case, because of an alleged attack upon the Constitution and the institutions of this State.

In the course of his judgment in McMahon’s case, Keane J. considered the judgment of Finlay J., as the present Chief Justice then was, in the case of Bartholomew Burns v The Attorney General which was delivered on 4 February 1974, Rec. No. 1973/236 S.P.

This was a case mentioned during the present hearing by counsel for the applicant. In that case the applicant was engaged in activities arising from or directly connected with the activities which ‘the I.R.A. is and was engaged in violent political disturbances in Northern Ireland and elsewhere in Great Britain for the purpose, as he puts it, of overthrowing British rule in Northern Ireland and change in the political structures and institutions in Northern Ireland. In that case Finlay J. felt not only was he bound by the decision of this Court in Bourke v Attorney General [1972] IR 36, but added:

I must say if it were required to aid that legal decision with a common sense appraisal of what the meaning of political offence were it would be difficult to avoid the same conclusion. In ordinary parlance and the use of words the phrases, an offence committed with a political motive, persons carrying out certain activities for political ends, have become as common as the day is long and by that test, which is not the necessary or binding test as far as I am concerned, it seems to me that in the narrow sense in which I am asked to decide if the offence charged is a political one.

There has been no decision of any court since which invalidates that conclusion—in fact that case was the basis for virtually every subsequent decision of the High Court on such matters.

What is sought in the present case is to escape from that, not by trying to show that the conclusion was incorrect in law, but by trying to argue that, because the policy of the organisation to which the applicant belongs is in contradiction to the official policy of this State on the same matter, his offence, which, by any standards is to be regarded as a political offence, is not to be so regarded for the purpose of the Extradition Act 1965.

Therefore the proposition which the court is being asked to accept is in effect to say that there are political offences and political offences, and that the Act of 1965 apart from the express exclusion of particular types of offences mentioned in the Act, is to be deemed not to include politicial offences, if the acts constituting them, which have been committed outside the jurisdiction are at variance with the stated policy of this State upon the same matters, as the method of achieving the politicial objectives in question. The consequence would be that when the State policy would change these acts could be deemed to be political offences entitled to the invocation of the Act of 1965. One might argue that for so long as the constitutional imperative of the reintegration of the national territory remains one of the objects of the Constitution of Ireland any activity in Northern Ireland or indeed in any part of the world amounting to a criminal offence in Northern Ireland or in any other state anywhere in the world, would entitle the Courts here to refuse the protection of s. 50 of the 1965 Act to any such person taking refuge within this State. That is not the logic which is put forward by the learned trial judge. He confines his interpretation of the law, in refusing to afford the protection of s. 50 of the 1965 Act, not on the grounds of the nature of the objective, but rather on the grounds of the means to achieve it, being means contrary to those espoused by the State. It would further appear to follow from his judgment that any effort to overthrow by violence the British Government’s administration in Northern Ireland for a purpose other than the reintegration of the national territory would be a political offence to which the protection of s. 50 would extend.

It appears to me that the reasoning of the learned High Court judge in this case is so strained and unreal as to reduce the law regarding extradition and the ‘political offence’ to a state of confusion. I am of opinion that this comparison of the facts in the present case with the facts in Quinn v Wren is fallacious.

If the High Court judge’s interpretation in this case is correct, one further consequence ensues. The automatic effect would be to equally diminish the powers of the Minister for Justice which are granted under s. 44(2) of the statute, to refuse to permit the extradition of a person, if he is of the opinion that the offence for which that person is sought is a political offence, or an offence connected with a political offence.

I would set aside the order of the High Court and order the release of the appellant (when his present sentence expires) under s. 50 of the 1965 Extradition Act.

In view of the decision I have reached I do not find it necessary to offer any views on the adequacy or otherwise of the administration of justice in Northern Ireland.

McCARTHY J:

The facts are set out at the commencement of the judgment of the Chief Justice; it is unnecessary to recite them in detail but I shall advert to certain features.

1. The Political offence issue
In his first affidavit the plaintiff says:

I subsequently joined the Irish Republican Army, an organisation which has for its primary objectives the ending of British rule in Northern Ireland and the re-integration of the national territory, if necessary by force of arms. I say that I agreed with and supported the objectives of the Irish Republican Army and that my purpose in joining was to further these said objectives.

In a supplemental affidavit, he said:

My aims and objectives and the aims and objectives of the organisation to which I adhere is (sic) to bring about an end to the British misrule in that portion of the national territory of Ireland as yet not re-integrated in the national territory. After a conscientious examination of the history of that part of the national territory since the year 1920 over which the British Government still claim to exercise jurisdiction, I have come to the conclusion that the only way in which the British Government can be got to relinquish their claim to exercise sovereignty over the North East corner of our country known as Northern Ireland or the Six Counties is by the use of force. I verily believe that the view I hold in regard to the use of force in order to secure the re-integration of the national territory of Ireland and to end British interference and misrule in the North-East corner of Ireland by the use of insurrectionary methods including violence, is shared by the majority (or as an alternative by a substantial portion) of the nationalist population of Ireland North and South.

It is my desire, aim and objective that once the re-integration of the national territory has been achieved, by whatever means, the normal democratic process operating under the rule of law in accordance with the provisions of the Constitution of Ireland should be the sole governing principles of the political structure and organisation of the entire island of Ireland.

It is not my desire nor my objective to overthrow the Constitution of Ireland enacted by the people of Ireland on the 1st July, 1937. It is my desire and objective to reassert the indefeasible right of the Irish nation to the unity and integrity of the national territory of Ireland and to reaffirm the sovereign right of the people of Ireland to choose its own form of Government, and, through its democratic institutions, to decide all questions of national policy, free from outside interference, as was unanimously declared by Dail Eireann on 10th May 1949, in a resolution transmitted to all the Parliaments of the world. Also, as was claimed by Dail Eireann on the same occasion, I repudiate the claim of the British Parliament to enact any legislation effecting (sic) Ireland’s territorial integrity and pledge myself to continue the struggle against the unjust and unnatural partition of our country.

The conclusion of O’Hanlon J. that the supplemental affidavit was ‘clearly an attempt to distinguish the present case from the facts as proved in Quinn v Wren’ was not challenged on the hearing of this appeal. O’Hanlon J. initially stated:

For this reason I would be disposed to regard the various charges which have been brought against the plaintiff as charges of political offences, if I am not precluded from doing so by other considerations to which I have already referred.

And, later,

It appears to me that, apart from the grounds upon which I have already held that the offences on which his delivery to Northern Ireland is now sought could be regarded as politicial offences, it can also be contended that his escape from custody and the offences committed in the course of that escape could be regarded as “connected with a political offence”, that is to say his offence of membership or professed membership of the I.R.A.

These findings were the subject of a ‘notice to vary judgment’ filed on behalf of the respondents and defendants, including the Attorney General. It is convenient to quote from this notice in which the respondents sought to vary the judgment (and if necessary the order) of the High Court in so far as the judgment held:

(a) That the attempt to kill Detective Superintendent Drew was politically motivated or a political offence.

(b) That the offences for which the plaintiff was sentenced to three concurrent terms of imprisonment were prima facie political offences or were in fact political offences.

(c) That the charges relating to the plaintiff’s escape from the Maze Prison were prima facie political offences or were in fact political offences or were connected with a political offence.

Nine separate grounds of appeal were stated alleging error by the trial judge in

1. finding the offences to be political offences or offences connected to political offences;

2. holding that there was not necessarily a distinction in law between a political offence and a terrorist offence;

3. in relating the attempted murder of Detective Superintendent Drew to other alleged attacks;

4. in concluding that the offences for which the plaintiff was sentenced were prima facie political offences;

5. in holding that the escape from the Maze came within Bourke’s case and to stamp that offence prima facie with the character of a political offence;

6. in holding that the charges which have been brought against the plaintiff are charges of political offences;

7. in holding that the offences could be regarded as connected to a political offence, the offence of his (alleged) membership or professed membership of the IRA.

8. in his definition of ‘political’;

9. in equating this case with the determination of Lord Diplock in Reg v. Governor of Pentonville Prison, Ex Parte Cheng [1973] AC 931 and in failing to take account of later Irish decisions on this legal principle particularly McGlinchey v Wren [1982] IR 154 and cases following same.

On the hearing of this appeal the contention made on behalf of the respondent was that the trial judge had, in effect, found that the offences charged were not political offences. O’Hanlon J. said:

I hold, as I think I am bound to, on the authority of Quinn v Wren, that the protection of s. 50, subs. 2(a) of the Extradition Act, 1965 does not extend to the present case by reason of the fact that the offences alleged to have been committed by the plaintiff were committed for the purpose of promoting the objectives of the Irish Republican Army.

Article 6 of the Constitution declares that it is the right of the people, in final appeal, to decide all questions of national policy, according to the requirements of the common good. It is for the people to decide when, and by what means, they wish to achieve the re-integration of the national territory. The plaintiff in his affidavits makes it clear that the organisation to which he gives his allegiance seeks to bring about the re-integration of the national territory by force of arms, if necessary. In so doing, it seeks not merely to bring an end to British rule in Northern Ireland but also to impose its will on the people of Ireland in a manner which subverts the Constitution and is in direct conflict with Article 6 thereof. This appears to me to involve an attack on the State itself, and on the organs of State established by the Constitution, having regard (inter alia) to the provisions of Article 6 and the other Articles referred to by the Chief Justice in Quinn v Wren.

The decision of the Supreme Court in that case was to the effect that the provisions of s. 50, subs. 2(a) of the Extradition Act, 1965 could not be construed in a manner which would give relief under those provisions to a person whose offence, which might otherwise be regarded as a political offence, had as its objective or as one of its objectives an attack upon the Constitution itself and upon the organs of State established by the Constitution.

Quinn v Wren
In the High Court Gannon J. held that the offence to which the warrant related (obtaining money by deception contrary to s. 15(1) Theft Act 1968) was not itself a political offence, nor was there sufficient evidence offered to the courts to establish that such offence was one connected with a political offence. No offence which could properly be classified as a political offence had been established to which the offence to which the warrant related had been connnected. Quinn appealed to this Court; in his judgment the Chief Justice said:

The Act of 1965 having been passed since the coming into force of the Constitution, the first and fundamental rule which governs that interpretation is that it must be presumed that the Oireachtas intended an interpretation which will not offend any express or implied provision of the Constitution: see McDonald v Bord na gCon [1965] IR 217 and East Donegal Co-Operative Livestock Mart Ltd v The Attorney General [1970] IR 317.

The plaintiff states that he committed the offence charged for the purposes of the INLA, the aims and objectives of which are the establishment of a 32 County Workers Republic by force of arms. The achievement of that objective necessarily and inevitably involves the destruction and setting aside of the Constitution by means expressly or impliedly prohibited by it: see Articles 15.6 and 39. To interpret the words ‘political offence’ contained in s. 50 of the Act of 1965 so as to grant immunity or protection to a person charged with an offence directly intended to further that objective would be to give to the section a patently unconstitutional construction. This Court cannot, it seems to me, interpret an Act of the Oireachtas as having the intention to grant immunity from extradition to a person charged with an offence the admitted purpose of which is to further or facilitate the overthrow by violence of the Constitution and of the organs of State established thereby. Whilst there exist other grounds on which the plaintiff’s claim may fail including those contained in the careful judgment of Gannon J. in the High Court I rest my judgment on this constitutional principle.

With that judgment Henchy and Griffin JJ. expressly agreed. Hederman J. said:

The admitted objective of the organisation referred to in the present case is by force of arms or other violent means to overthrow the Government established by the Constitution. This is clearly in violation of Article 39 of the Constitution. Treason shall consist only in levying war against the State or assisting any State or person or inciting or conspiring with any person to levy war against the State, or attempting by force of arms or other violent means to overthrow the organs of government established by this Constitution, or taking part or being concerned in or inciting or conspiring with any person to make or to take part or be concerned in any such attempt. The law of this State, to remain in conformity with the Constitution, cannot give immunity from extradition for persons engaged in such activities. The mere fact that such organisation may seek to dignify itself by the use of the word ‘army’ in its title, is not, in my view, sufficient in itself to bring it within the contemplation of Article 15.6 of the Constitution. (1) The right to raise and maintain military or armed forces is vested exclusively in the Oireachtas. (2) No military or armed force, other than a military or armed force raised and maintained by the Oireachtas, shall be raised or maintained for any purpose whatsoever. I do not say there may not be circumstances in which this type of illegal organisation might not fall within the terms of Article 15.6, but in the present case there is no evidence whatsoever as to where the self-styled army was raised and maintained, if at all. Because of the provisions of Article. 39 of the Constitution I must hold that the plaintiff’s claim to motivation for acting as he so did, takes the offence charged outside the meaning of political offence or offence connected with a political offence as set out in the Extradition Act 1965.

In my own judgment I said:

The appellant, as was found by Gannon J., committed the offence in order to obtain money to fund the campaign of the I.N.L.A. which campaign is described in a manner which necessarily includes the overthrow by force of arms of the organs of State, including the Courts. The proposition, which the appellant’s case involves, that the Courts should grant protection to a person charged with an offence stamped with such a purpose is ludicrous.

The passages which I have quoted from Quinn v Wren demonstrate that the decision was founded upon the stated objective of the offence charged being the establishment of a 32 County Workers Republic by force of arms, the destruction and setting aside of the Constitution by means expressly or impliedly prohibited by it, because of the provisions of Articles 15.6 and 39. I emphasise, as does Hederman J., that issues of the kind arising here in determining whether or not an offence charged is a political offence or an offence connected with a political offence are, essentially, issues of fact.

In the instant appeal, the objective alleged by the plaintiff cannot, as in Quinn’s case, be identified as involving the destruction and setting aside of the Constitution or any part of it; rather is it sought to deny the plaintiff the relief afforded by s. 50 of the 1965 Act by seeking to have it construed, as O’Hanlon J. construed it, so as to exclude from its protection an individual, citizen of this State or not, whose alleged offence is not with a stated objective expressly contrary to any Article of the Constitution, but by an extension of reasoning from Quinn’s case, an extension I believe to be strained and unwarranted. In my judgment, so to limit the breadth and scope of s. 50 is to effect a judicial repeal of subparagraph (i) of paragraph (a) sub-section (2) and the words ‘for a political offence or an offence connected with a political offence’ in paragraph (b) of s. 50(2) of the Extradition Act 1965. If the judicial construction of a statutory provision is such as to deprive it of any practical area of operation that, in my view, constitutes an effective at least temporary repeal by judical decision—a judicial repeal. I take judicial notice of what I believe to be the fact that, since the passing of the Act, the enforcement of Part III, where the issue of political offence has been raised, has been confined to cases involving the I.R.A. or the I.N.L.A. I decline to construe a statute so as to deprive it of any practical meaning. The making of an extradition treaty or other agreement is, itself, a political decision as is the enactment of legislation for that purpose. The function of the Courts is to secure the enforcement of such political decisions when they become part of the law of the State; the courts should avoid a result which would render nugatory a part of that legislation. If it were to prevail that an individual appearing to challenge the supposed decision of the people on a question of national policy, such decision, in effect, that of the Government in power, will thereby lose his constitutional rights, as seems inevitable from the logical extension of the decision of O’Hanlon J., it would follow that any legislative attempt to save those rights, would, itself, be invalid having regard to provisions of the Constitution.

If Article 6 is read, as, in my judgment, it should be read as merely defining the separation of powers into legislative, executive and judicial and their derivation under God, from the people, this unhappy result will not follow. Article 6 is one of the Articles in the schematic arrangement of the Constitution under the general heading of ‘The State’. These Articles, from Articles 4–11 identify the name of the State, its nature, the derivation and identification of powers of Government, the identity of the national flag and official languages, the endowment and acquisition of citizenship, the ownership of national resources and the concept of one national exchequer. I do not accept that an act committed for the purpose of pursuing a particular policy which may be opposed to that expressed by the Government of the day whether or not expressly endorsed by the legislature, can, on a construction of Art. 6 be deprived of the protection of s. 50. It is quite possible that the expressed policy of a government might change between the date of commission of the act and the application for extradition; the Government, itself, may change with a like consequence. It may be that some Government would adopt a policy towards reintegration different from that stated to exist at present. If an individual differs in his opinion from Government policy, and acts in furtherance of that opinion, is he at all times to be thought to be subverting the Constitution and usurping the function of Government? I think not. I question that the right of the people, in final appeal, to decide all questions of national policy, means that individuals who differ from the people on such decisions are to be thought to be subverting the Constitution, even when such individuals seek, in another jurisdiction, by different means to achieve the same or a different end. I do not accept that decisions on questions of national policy are, simpliciter, matters for the Government subject to the control of Dail Eireann; I do not accept that opposition, even violent opposition, to a policy expressed by the Government at the time may lawfully deprive an individual of the protection of s. 50 of the Act of 1965.

In this context, the Chief Justice has referred to the further supplemental affidavit of the appellant and comments ‘it is noteable that the appellant did not attempt to say that the aims and objectives of the I.R.A. are confined to ending British rule in Northern Ireland; nor does he deny what has been shown in other cases (e.g. State (Lynch) v Cooney [1982] IR 337, namely that the I.R.A. is an organisation committed to undermining by force the organs of State established by the Constitution.

Lynch’s case was not mentioned during the course of the argument in the instant appeal; facts proved in one case are not evidence in another. It is not for that purpose, as I understand it, that the Chief Justice refers to Lynch’s case. The appellant here might have been cross-examined on his affidavits if the respondents had so requested in the High Court; they did not do so. I demur to the conclusion of the Chief Justice on the issue as to whether or not, so to speak, an individual may have a private reservation which would retain for him the political exception. Is the converse to be true as well? If an individual acts under the umbrella of an organisation whose motives are entirely innocent and within the constitutional obligations, but who himself has private objectives of undermining the organs of State and subverting the Constitution, is he not to lose the protection of the political exemption? As I have sought to indicate in my judgment in Shannon the motive of the individual concerned is one of critical importance. By motive, I mean the personal objective of the individual.

Since the enactment of the Act of 1965 there have been many applications for extradition of persons on foot of warrants issued in Northern Ireland, to some of which I shall refer hereunder. While one may assume that the draftsman of the 1987 Act was aware of the decision in Quinn v Wren, he could not have been unaware of the many decisions in which extradition was refused save in the exceptional cases of McGlinchey and Shannon. Yet this Court must conclude, if the argument for the State is to be upheld, that the Act of 1987 was passed through the Oireachtas on the basis of an extension of the Quinn v Wren reasoning and the total exclusion of the several cases to which I shall refer. It may be that the Oireachtas did so on the basis that it could be left to the Courts to reduce further the application of the political exemption; if it did, it will gain no support from me. Apart from the effective judicial repeal to which I have referred, in my view, the further restriction contemplated in this case amounts to judicial legislation. If there are deficiencies in the law, they should be solved through a fundamental legislative re-consideration rather than judicial expedient. (See the judgment of Lord Simon of Glaisdale in Reg v Governor of Pentonville Prison Ex Parte Cheng Court [1973] AC 931 at 959–60).

The case history
There have been many claims under s. 50 of the 1965 Act in respect of members of the Provisional IRA or the IRA; these were tested on the question as to whether or not the offence charged was one that apparently was committed in pursuit of the aims of such organisation, and when found to be so the relief sought under s. 50 was granted. Burns sapra had a suitcase and boxes which contained explosives which were intended to be used by the Irish Republican Army; he had strong political views on the situation in Northern Ireland and had a number of friends in the I.R.A. Applying the judgment of Denman J. in Castioni, In re [1891] 1QB 149 and part of the judgment of Lord Radcliffe in Reg. v Governor of Brixton Prison, Ex Parte Schtraks [1964] AC 556. Finlay J., as he then was, was satisfied that the offence in question was a political offence.

McMahon v Leahy [1984] IR 525 said that the robbery was carried out by order of the Irish Republican Army ‘for the purpose of raising funds for a campaign which was then being carried on for the liberation of Northern Ireland from British rule’ and having ‘in due course severed my links with the Irish Republican Army, but continue and intend to continue attempting to secure the re-unification of the national territory by constitutional means’. Keane J. denied him the protection of s. 50 on the somewhat narrow ground that MacMahon had not established that he himself subscribed to the belief that ‘such activities (a series of robberies) would bring about the claimed political objectives of the organisation of which he was then a member.’ In this Court, the judgment of O’Higgins CJ recites the successful applications by four other of the prisoners who had escaped with McMahon for relief under s. 50 in 1975 and 1976. It is not clear whether or not in every case the State conceded the political nature of the offence but, in any event, the relevant finding was made and no appeal was bought. O’Higgins CJ at p. 537 said:

Faced with objections of this nature, the State has maintained during the course of this appeal that it is entitled to resist the plaintiff’s claim, that each application for a political exemption must be considered separately and that, unless such exemption is clearly established, the provisions of Part III of the Act of 1965 permit of no discretion and require the delivery of the person sought. I am unable to accept that contention.

In the first place, it seems to me to amount to a submission that the Courts, in cases of this nature, are not to be concerned with the maintenance of respect for their own proceedings and the protection of such proceedings from abuse. Here the High Court, by the State’s very attitude, was led and encouraged to declare that escapes identical to the one now contended to be without political character were political offences. As a result, a solemn declaration and direction issued from the High Court to the effect that the four escapees from Newry Courthouse on the 10th March 1975 were political offenders. Now the State seeks the very opposite result in similar proceedings and on similar facts under the same Act. If the State were successful in this submission, it would mean that contradictory declarations in relation to the same incident would have issued from our Courts. If such occurred, respect for the administration of justice in our Courts would surely suffer, and the Court’s process would certainly have been abused.

Further, the declarations would necessarily be final and unappealable. Therefore, if the State succeeded, four citizens whose arrest had been sought by the Northern Ireland authorities, and who had been involved in the same escape as a fifth person would have been held by the Courts, in interpreting the law, to be politically exempt while that fifth person in respect of whom no different considerations applied, would have been held not to be exempt. In such circumstances, could it be said that all these five citizens had been held equal before the law? This obligation to provide equal treatment for citizens of the State is ordained by Article 40 of the Constitution. It is the clear duty of the Courts to see that this obligation is discharged.

Henchy and Griffin JJ expressed agreement with the judgment of the Chief Justice; Hederman and McCarthy JJ delivered separate judgments, with the same result.

In McGlinchey, O’Higgins CJ said at 159:

Because of the particular circumstances of the offence charged in the warrant and, especially, because of the concessions made on behalf of the plaintiff (that the murder could not be regarded as a political offence or an offence connected with a political offence) it is unnecessary to seek to draw a line of demarcation between an ordinary criminal offence and one which falls to be classified as a political or an offence connected with a political offence. I would wish to point out, however, that it should not be deduced that if the victim were someone other than a civilian who was killed or injured as a result of violent criminal conduct chosen in pursuance of a political aim, in lieu of what would fall directly or indirectly within the ordinary scope of political activity , (emphasis added) the offence would necessarily be classified as a political offence or an offence connected with a political offence.

The judicial authorities on the scope of such offences have been rendered obsolete in many respects by the fact that modern terrorist violence, whether undertaken by military or para-military organisations, or by individuals or groups of individuals, is often the antithesis of what could reasonably be regarded as political, either in itself or in its connections. All that can be said with authority in this case is that, with or without the concession made on behalf of the plaintiff, this offence could not be said to be either a political offence or an offence connected with a political offence. Whether a contrary conclusion would be reached in different circumstances would depend on the particular circumstances and on whether those particular circumstances showed that the person charged was at the relevant time engaged, either directly or indirectly, in what reasonable, civilised people would regard as political activity.

… As has been already indicated, no offence, regardless of who the perpetrator or the victim may be, can be accounted a political offence or an offence connected with a political offence unless there is evidence to show that it arose directly or indirectly, out of political activity in the sense already indicated in this judgment. No such evidence has been adduced in respect of those three offences. This Court is invited to assume that, because of the existence of widespread violence organised by para-military groups in Northern Ireland, any charge which is associated with terrorist activity should be regarded as a charge in respect of a political offence or an offence connected with a political offence. I am not prepared to make any such assumption.

Shannon v Fanning [1984] IR 569, asserted that the responsibility for the raid and the killings was claimed by the Provisional I.R.A. being an organisation which he said had amongst its aims and objectives ‘the re-unification and reintegration of the national territory of Ireland.’ In context, this can scarcely mean other than by the use of force, if necessary. O’Higgins CJ (580) said:

I am prepared to accept, even apart from the plaintiff’s assertion to that effect, that one of the stated aims of that organisation is the achievement of the reunification and reintegration of the national territory. However, it is not to be assumed that, because of this fact, everything done by or on behalf of that organisation comes within the political exception.

From this review of case law it seems clear that (a) until the instant case, it had been accepted in a series of cases in the High Court by express concession and in this Court, by necessary implication, that offences committed to achieve the objectives of the I.R.A. were and were to be treated as political offences or offences connected with a political offence, unless the special circumstances of McGlinchey or Shannon applied.

(b) A significant number of persons were ordered to be released on this legal basis.

(c) Until the argument in the instant case in the High Court, no reference to Art. 6 of the Constitution is to be found in any of the cases decided in the High Court or in this Court.

O’Dalaigh CJ said in State (Quinn) v Ryan [1965] IR 70:

It requires to be said that a point not argued is a point not decided; and this doctrine goes for constitutional cases (other than Bills referred under Article 26 of the Constitution and then by reason only of a specific provision) as well as for nonconstitutional cases. (at p. 120).

Construction of the statute
There are, as I understand, a number of rules of statutory construction, the most elementary being that, apart from words of a technical nature, words and phrases are to be given their ordinary meaning and phrases and sentences to be construed according to the rules of grammar. This principle of literal construction may be qualified by the ‘mischief’ rule and that as to reading words in their context when they bear the historical context, both statutory and judicial. These principles are set out in detail in Maxwell on Interpretation of Statutes 12th Ed. Ch. 2, p. 28 et seq. In Reg. v Governor of Brixton Prison, Exparte Armah [1968] AC 192 the House of Lords held that it was not sufficient that the Magistrate was satisfied that a prima facie case had been made out, in other words, that there was evidence on which a reasonable jury could properly convict at a subsequent trial. Lord Reid showed from 19th century Acts that they drew a distinction between two kinds of evidence: positive or credible evidence which raised a strong presumption of the guilt of the accused, and evidence which afforded sufficient ground for judicial enquiry into his guilt. The distinction must have been known to those who framed the Fugitive Offenders Act, 1881, and the words they used must be taken as referring to the first kind of evidence. Other English authorities show a similar viewpoint. Clapham v National Assistance Board [1961] 2 QB 77, R. v Patents Appeal Tribunal, Ex P. Swift and Co [1962] 2 QB 647, Hampstead Garden Suburbs Trust Ltd, in re [1962] Ch 806, Minister of Housing and Local Government v Hartnell [1965] AC 1 134, Barentz v Whiting [1965] 1 WLR 433, Rolley v Murphy [1964] 2 QB 43, Brown v Dyerson [1969] 1 QB 45. The 1881 Act remained part of Irish law until repealed by the Extradition Act, 1965.

An Act of the Oireachtas enjoys a presumption of constitutionality; this presumption creates a constitutional rule of construction where two or more constructions may be open and only one of these is constitutional. Then the true construction is the constitutional construction. In the instant appeal, it is said, the only true constitutional construction is that the Oireachtas could not have meant or intended that the political aspect of s.50 was to be construed as granting immunity from extradition to a person charged with an offence allegedly committed for the purpose ‘not merely to bring an end to British rule in Northern Ireland but also to impose its will on the people of Ireland in a manner which subverts the Constitution and is in direct conflict with Article. 6 thereof (Judgment of O’Hanlon J.) I accept that the provisions of s. 50 of the Act of 1965 cannot properly be construed as applying the political defence to a person charged with an offence the purpose of which is to subvert the Constitution; to purport to usurp the functions of the organs of State would be one manner of subverting the Constitution. I do not accept, however, that the objectives which the plaintiff identifies as his and as those of the I.R.A. amount to a subversion of the Constitution. I do not accept that Article 6 is to be so construed.

In no case to which we have been referred nor in any other extradition case which I have read has Article 6 been mentioned. It occupies a short chapter in Kelly’s The Irish Constitution (2nd Ed. — 1984 — pp. 28–32).Article 6 identifies the philosophy that all powers of government derive from the People and that these powers of government are exercisable only by or on the authority of the organs of State established by the Constitution. At the same time, it identifies in the People the right to designate the rulers of the State and, in the final appeal, to decide all questions of national policy, according to the requirements of the common good. This was described by Henchy J. in Murphy v Attorney General [1982] IR 241 as being ‘a central feature of the ideological rationale and political philosophy underlying the Constitution’. In Crotty v An Taoiseach [1987] ILRM 400 the Chief Justice stated:

The separation of powers between the legislature, the executive and the judiciary, set out in Art. 6 of the Constitution, is fundamental to all its provisions.

Walsh J identified in Article 6 in respect of the powers of government being derived from the People and to be exercised according to the requirements of the common good holding that “the contemplated restrictions upon freedom of action” in the formulation of foreign policy required a recourse to the People within the wording of Article 6. Henchy J. identified Article 6.1 as ‘the ultimate source and limits of the government’s powers in the conduct of foreign relations’, and, having cited the Article said:

It follows that the common good of the Irish people is the ultimate standard by which the constitutional validity of the conduct of foreign affairs by the government is to be judged. In this and in a number of other respects throughout the Constitution the central position of the common good of the Irish people is stressed as one of the most fundamental characteristics of Ireland as a sovereign, independent, democratic State.

Griffin J. cited Article. 6 in the context of the separation of powers; Hederman J. did not advert to the Article. In Buckley and Others (Sinn Fein) v Attorney General [1950] IR 67 O’Byrne J., in delivering the judgment of the Supreme Court of Justice said that the object of Article. 6 was

to recognise and ordain that, in this State, all powers of government should be exercised in accordance with the well-recognised principle of the distribution of powers between the legislative, executive, and judicial organs of the State and to require that these powers should not be exercised otherwise. The subsequent articles are designed to carry into effect this distribution of powers.

In Boland v An Taoiseach [1974] IR 338 Griffin J. cited Article. 6, the observations of O’Byrne J., and identified Article. 6 and other Articles as demonstrating the separation of powers of government. The Court has not been referred to any other judicial comment on Article. 6.

The terms of the Preamble ‘seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order obtained, the unity of our country restored and concord established with other nations,’ as well as the application of laws provision of Article. 3 coupled with the description of the national territory in Article. 2 express a national aspiration for the ‘reintegration of the whole island of Ireland, its islands and the territorial seas.’ Save in so far as it is to be derived from Article. 29 1 and 2 the method of securing this objective is not stated. It is said, however, that the necessary inference from the wording of Article. 6 1 and 2 is that the perpetrator of offences committed outside the jurisdiction, committed with an apparently political motive, is denied the protection of s. 50 because, it is alleged, one of the methods of securing what is undoubtedly a part of national policy is by force of arms, the force used in the immediate case, being, by definition, force used and criminal acts done outside the jurisdiction.

The people, in final appeal, must decide all questions of national policy and decide them according to the requirements of the common good. The Constitution provides but one means of ascertaining the will of the people on such a question. I question how a court determines

(a) a question of national policy
(b) what is the decision on it
(c) whether or not that decision is that of the people
(d) how did the people decide such a question
(e) how the requirements of the common good were taken into account.
It seems clear that the legislature has no power to decide on questions of national policy to the exclusion of the people’s power.

If an individual is engaged in espionage in Northern Ireland with the intent of undermining Ireland’s neutrality or some aspect of it, and his espionage involves some other crime, is he to be extradited because he is acting contrary to national policy? Is he to be extradited, whether he be an Irish citizen or not? To take a converse situation, suppose the State were, with the assent of Dail Eireann, to declare war on the United Kingdom or to proclaim a national policy of reintegration by force, and some individual were to commit an offence in Northern Ireland in promotion of reintegration by peaceful methods only by agreement, must s. 50 be so construed as to deny him the protection of political offence? In Bourke’s case O Dalaigh CJ drew the distinction between purely political offences which, of their very nature, are political, for example, treason, sedition, and espionage and relative political offences. If a British citizen is charged with a purely political offence, as illustrated, committed in Northern Ireland or any other part of the United Kingdom for the objectives of the I.R.A. as described in the instant appeal, is he to be denied the protection of s. 50 when he flees to this jurisdiction? Does his purely political offence cease to be political within the meaning of s. 50 when coloured by these objectives? In my view, the answer to these questions must be No.

I conclude from McGlinchey and Shannon that the nature of the act may remove it from the category of being political, and from Quinn that the objective of the act, if it clearly contemplates the usurpation of the functions of government and that within the State, loses the protection of s. 50.

I find no such situation here. In my view, the original offence, the attempted murder of the R.U.C. officer, was a political offence and the subsequent escape was an offence connected with a political offence; within the meaning of s. 50 of the Extradition Act, 1965.

2. Treatment at the hands of the prison officers

On the uncontradicted testimony of Dullaghan, McIntyre, Burns, Hamilton, Meade, and Donnelly, each of these prisoners who escaped for a short period from the Maze Prison on 25 September 1983 was beated and assaulted by prison officers on recapture. They further alleged that they were deprived of clothing and received what may be called inhuman treatment after return to prison. Affidavits have been filed dealing with the alleged deprivation of clothing and inhuman treatment after recapture but the allegations of assault remain uncontradicted. Mr. Hassan, Governor Class 3, has promised what O’Hanlon J. termed safe conduct in the following words:

It may be that the plaintiff will not be subjected to any assault, ill-treatment or irregular practice at the hand of any prison officers; to say that he has no reason to fear such appears to me to be something of an overstatement. If such were the entire of the circumstances, I would accept the force of the conclusions reached by O’Hanlon J. But, it is argued, there is no evidence whatever on the part of the prison authorities that any attempt has been made to identify and, where necessary or appropriate, to punish the prison officers involved. A breakdown in discipline may be an understandable human reaction against those believed responsible for the death of a fellow prison officer; a failure to institute and carry out disciplinary procedures at least to identify, if not to punish, those responsible for assaulting the returned prisoners is, in my view, inexcusable and points to a breakdown in the prison system. Having regard to the conclusion I have reached on the first issue, it is not necessary that I should express a view on this question; suffice it to say that I incline to the view that the plaintiff had discharged the onus of proof sufficiently to impose upon the prison authority the burden of proof in respect of discipline of prison officers.

3. Probability of interrogation and/or delay

(a) McGlinchey was delivered into the custody of the R.U.C. at 11 p.m. on Saturday 17 March 1984; the delivery took place at the Border under maximum publicity including television. It followed on his arrest earlier that day following a ‘shoot out’ with the Gardai in the course of which it would appear that McGlinchey committed crimes for which he is presently serving long sentences of imprisonment in Portlaoise. In the early afternoon of the same day he obtained an order restraining the authorities from proceeding with his extradition which had been granted pursuant to an order of this Court on 7 December 1982. A special sitting of this Court took place on that evening; the order made by Barrington J. earlier that day was set aside, and McGlinchey was taken to the Border to be handed over to the R.U.C. The effect of this sequence of events was the McGlinchey did not have to be brought before any Court in this jurisdiction; if he had been brought before a court he would have to be charged with an offence or offences, obviously those arising from the incidents earlier that day. This would result in control of his case passing to the Director of Public Prosecutions whose interest would have been to secure a trial in respect of the offences committed within this jurisdiction. Knowledge of this prospective circumstance underlines what appears to me to have been a flagrant disregard by the R.U.C. and those others responsible for the conduct of prosecutions in Northern Ireland of the requirement that McGlinchey be brought as soon as practicable before a Magistrate. Having been delivered into the custody of the R.U.C. at 11 p.m on Saturday 17 March, there was a delay at Newry police station where he was conveyed to the police station at Ballymena, Co. Antrim arriving there on 18 March at 2.30 a.m.; there he was detained until some time between 10 and 11 a.m. when he was brought to Castlereagh Interrogation Centre in Belfast; it was not until 5 p.m. on Monday 19 March that he was brought before a resident magistrate in Ballymena. The warrant for his arrest required that he be brought to Ballymena Court. By any standard it was a plain and deliberate breach of this requirement of the R.U.C. to bring him from Ballymena to Castlereagh. The purpose of this transfer was allegedly to comply with certain regulations as to the manner of interrogation. This interrogation included questions referring to the affidavits sworn by McGlinchey for the purpose of the original proceedings in this jurisdiction; the propriety of obtaining and using such an affidavit for such a purpose seems to me a matter of some doubt. The real point is that a set plan of interrogation was put in train. I do not question the right of police officers having lawful custody of a person to avail of any reasonable opportunity to ask questions. The individual is not bound to reply, save in certain special circumstances (In this jurisdiction, for example, under the Offences Against the State Act, 1939 or under the Road Traffic Act, 1961). It is the fact that at a time when McGlinchey should have been brought before a resident Magistrate he was being transferred to a more convenient venue for the purpose of interrogation.

Shannon was delivered into the custody of the R.U.C. at about 8.30 p.m. on 31 July and was brought before a court on the following day at approximately 3.30 p.m. No explanation was given by the several R.U.C. officers who swore affidavits as to why he was not brought before a magistrate’s court earlier than at that time; the reason obvious from the affidavits is that the R.U.C. officers wished to question him and did so on the night of his arrest and also the following morning. The officers were careful to state in their affidavits that Shannon was not questioned about any crime other than those in respect of which the extradition order had been made. That is not true. The witnessed statement of William J. Hetherington, Detective Inspector, dated 6 August 1984, recites a number of questions and answers, one of them being:

Q. Are you a member of the Provisional I.R.A.?

A. No reply.

It is common case that membership of the Provisional I.R.A. is a criminal offence in Northern Ireland. Accordingly, albeit unintentionally, Shannon was questioned about another crime.

I am prepared to accept that the questioning of Shannon about another crime was accidental; that the questioning of Shannon and McGlinchey was confined, in each case, to the crime in respect of which extradition had been granted. No explanation has been offered for the delay in each case in bringing the person extradited before a Magistrate, as required by the warrant, and as required by the law, without delay or as soon as reasonably practicable, and availing of the interval in each case to question the person extradited. In my judgment in Shannon v. Fanning (at p. 598) I said:

The successful operation of Part III of the Act depends, at least in part, upon compliance by both parties with the reciprocal arrangement underlying the Act. One of its basic and expressed features is that an individual extradited in respect of one offence might not be prosecuted or otherwise punished in respect of another. If either side were to breach this principle, it would, I would think, mean an end to the reciprocal arrangement. See judgment of FitzGerald J. in The State (McGee) v. O’Rourke. In my view it would require the most compelling evidence to overcome the inference properly to be drawn from this circumstance.

This requirement of reciprocity is not limited to the ‘one offence’ factor; it requires compliance with the constitutional fair procedures that apply in this jurisdiction. Admittedly McGlinchey and Shannon are but two instances of extradition to Northern Ireland of individuals who contended that their offences were political offences. Although but two in number they amount to 100 per cent of the instances of which this Court has knowledge, and the circumstances surrounding them are widely known. This Court cannot countenance or be seen to countenance misconduct by the R.U.C. officers such as I have sought to illustrate by holding, for the purpose of this case, that the plaintiff has failed to discharge the onus of proof. It is a vital ingredient of extradition arrangements that constitutional rights will not be disregarded, that fundamental fairness of procedures will not be violated; the making of the reciprocal arrangement must presume accordingly; but, where, in the only two cases of which the Court has knowledge, these rights have been violated, that presumption is negatived.

In his judgment, the Chief Justice has referred to the seven grounds advanced by the plaintiff in the High Court and quoted ground No. 2:

That there are substantial reasons for believing that the applicant, if removed from the State under this part of the Act, will be detained for interrogation in regard to political offences, or offences connected with political offences, as has been the practice of the police authorities in Northern Ireland in the case of other persons extradited to that jurisdiction.

The Chief Justice surmises that it was to meet that ground that the affidavits sworn by members of the R.U.C. were filed and for that reason that they were concentrated on the matters about which McGlinchey and Shannon were questioned rather than on the fact of interrogation.

One may thus explain, if not excuse, the failure of the R.U.C. authorities to explain the delays in bringing McGlinchey and Shannon before a Magistrate in each case; the fact remains that these delays as such remain unexplained and, on their face, cannot be excused. I do not accept that, more particularly in McGlinchey’s case, the nature of the delay did not, of itself irrespective of any complaints made by the plaintiff, call for an explanation. The Chief Justice expressed his view that if it was shown as a matter of probability that there existed a policy or system being operated by the police authorities in Northern Ireland whereby persons delivered into their custody from this jurisdiction, pursuant to the Act of 1965, were not brought as soon as was reasonably practicable before a Magistrate as the warrant would require, but rather would be detained so as to be interrogated either with regard to the charge in respect of which the delivery took place or with regard to other charges, different considerations would undoubtedly apply. I would respectfully agree with this view subject to the qualification that, in my view, once the first aspect of the policy or system were shown to be in force—not to bring such persons as soon as practicable before a Magistrate, the motive for such a policy or system would be irrelevant. The plaintiff has established a prima facie case that in the only two cases of which the Court has knowledge the police authorities in Northern Ireland did not bring the persons charged as soon as practicable before a Magistrate; in my view, this factor shifts the burden of proof to the police authorities and they have, up to now, failed to discharge that burden of proof, possibly due to the circumstances mentioned by the Chief Justice to which I have referred. If they were to fail to discharge that burden of proof—to excuse the apparent delay, then, in my judgment, it must follow that extradition between this State and Northern Ireland in respect of what are called terrorist offences must, until acceptable guarantees and procedures are provided, be at an end. If that be so, the sole reason for it is the conduct and procedures of the Northern Ireland police, the R.U.C. These procedures did not, presumably, originate at local level. Having regard, however, to the circumstances pointed out by the Chief Justice, even at this stage I would afford the Northern Ireland authorities the opportunity of explaining the procedural delays in the cases of McGlinchey and Shannon and the use of the time involved for the purpose of interrogation. For that purpose, on this issue, I would return the matter to the High Court.

4. Judicial Authority

I share the view of the Chief Justice that there is no substance in this argument. The description ‘Justice of the Peace’ is to be found in the Adaptation of Enactments Act 1922 (s. 6.3) in which the expression ‘Justice’ in s. 6 generally includes the expression ‘Justice of the Peace’, and the section provides for the transfer to District Justices of every power, authority and duty conferred or imposed by any British statute on a Justice of the Peace. So also in the District Court (Temporary Provisions) Act 1923, provision was made for certain duties of a Justice of the Peace being carried out by a Peace Commissioner or a District Justice (ss. 2 and 4). It may be that there are some more arcane descriptions of the holders of judical office or others exercising judicial authority in the planes set out in s. 41 of the Extradition Act 1965, such as require evidence to establish the qualification of judicial authority but, in my view, we are in the realm of fantasy when it is argued that such evidence is required of a Justice of the Peace (so called) whose signature is identified in a document brought before the Commissioner of the Garda Siochana, his Deputy, or a District Justice. I would reject this submission.

In the result, I would allow this appeal.

Ellis v O’Dea

[1990] ILRM 87

Finlay CJ
I have had the opportunity of reading the judgment about to be delivered by Walsh J in this case, and I agree that this appeal should be dismissed, and I agree with the reasons set out in that judgment for its dismissal.

In so far as the existence in the warrants in this case of a charge of conspiracy, neither formed part of the grounds upon which the applicant sought an order of prohibition in the High Court, nor was the subject of any debate or argument in this Court, I would prefer to express no view on the consequences of the inclusion of such a charge in the warrants the subject matter of an application under the Extradition Act 1965.

I agree that it is most undesirable that the name of the State should be incorrectly set out in the warrants which are concerned in this case. Since, again, however, no issue arose by reason of that misnomer and no argument was presented to this Court upon it, I prefer to reserve the question as to whether in any case it would constitute good grounds for refusing to make an order for the delivery of the person whose extradition was sought.

WALSH J:

On 26 June 1989 the applicant was granted leave by the High Court to apply by way of judicial review for an order of prohibition against the respondents to prohibit them from proceeding with an extradition hearing at the District Court due to take place on 29 June 1989, which concerned two warrants issued on 24 April 1989 by an English magistrate. On the hearing of the application for judicial review on 27 July 1989 before Costello J in the High Court it was ordered that the application for the order of prohibition be refused. This appeal is taken against the order and judgment of the High Court refusing the order of prohibition.

The arrest warrants issued in England were issued while the applicant/ appellant was a prisoner in Portlaoise prison.

One warrant charged him with having unlawfully and maliciously conspired together with three named persons and ‘other persons’ to cause an explosion by an explosive substance likely to endanger life or cause injury to property in the United Kingdom. The warrant alleged that the conspiracy had taken place within the jurisdiction of the Central Criminal Court for England and Wales, and that the offence had been committed between 1 January 1981 and 27 October 1983.

The second warrant charged the applicant/appellant with having had, between 1 January 1981 and 27 October 1983 within the jurisdiction of the Central Criminal Court for England and Wales unlawfully and maliciously in his possession or under his control explosive substances with intent by means thereof to endanger life or to cause serious injury to property in the United Kingdom or to enable other persons to do so.

Each of these offences was laid as being contrary to the Explosive Substances Act 1883 (a United Kingdom statute) and the Criminal Jurisdiction Act 1975 (also a United Kingdom statute). The said warrants were endorsed for execution by the first-named respondent and the matter came on for hearing before the District Court, sitting in Dublin on 27 April 1989, that is to say three days after the issue of the warrants in England. The case was then adjourned and the applicant retained a solicitor on 2 May 1989 and the case was subsequently mentioned in the District Court. The case was again mentioned on seven subsequent dates in the District Court, the last one being 26 June 1989.

On the latter date when the matter was before the District Court the solicitor for the applicant informed the District Court that as he had not received a copy of the sworn information or informations upon which the warrants were based he could not properly proceed with the case and applied for an adjournment pending the receipt of the informations. It was accepted that he had applied to the United Kingdom prosecuting authorities for the informations but had received no reply to his request. The State Solicitor in charge of the case indicated that in his view the matter was one for the British authorities and that he could not state when or if, any such informations would be available and he opposed the application for an adjournment. The District Justice refused an adjournment but indicated that he thought the appropriate application ought to be for an order of prohibition. That is the course which was followed and that is the matter which is now under review.

The leave to apply for judicial review which was given by the High Court on 26 June 1989 was given on the grounds that the failure to provide a ‘true copy of the information or informations mentioned in the said warrants’ constituted:

(a) an unfair procedure injuriously affecting the applicant’s right to prepare a defence and ‘it is therefore contrary to the Constitution’ and

(b) an abuse of the process of the Extradition Act 1965;

(c) an unjust interference with or denial of access to the courts or the right to freely litigate an issue on the validity of a citizen’s detention;

(d) a procedure or circumstance which provides for a substantial and unjustified imbalance between the rights of the applicant herein and the party or parties relying on the said warrant and moving for his rendition.

In the High Court, as in this Court, the case was argued on two grounds, namely:

(a) that the refusal to furnish the informations to him frustrates his constitutional right to access to the courts and that

(b) his constitutional right to fair procedures is denied to him because of the refusal to get the documents he seeks.

He does not claim that any of the procedures for the production and evidence of the warrants and the necessary accompanying documentation was in any way irregular or in any way failed to comply with the provisions of the Extradition Act 1965. What he has argued is that his inability to have access to the informations, or to have a sight of them, hampers his right to challenge the validity of the warrants. The statutory functions and powers of the District Court under the 1965 Act have been the subject of a number of cases and had been interpreted in these cases, particularly in the cases of State (Furlong) v Kelly [1971] IR 132, Wyatt v McLoughlin [1974] IR 378 and Gillespie v Attorney General [1976] IR 233.

It has not been claimed that the procedures laid down by the Act as interpreted by these decisions have not been followed. Essentially these requirements are that there should be the necessary evidence of the validity of the warrant and the associated documentation together with sufficient evidence to satisfy the District Justice that the person before him is in fact the person named or described in the warrant or warrants. Also, and most importantly, the offence or offences charged in the warrants must correspond with offences under the law of Ireland and which are indictable offences or, if punishable on summary conviction, by imprisonment for a maximum period of at least six months.

It is, of course, always open to a detained person, arrested under an extradition warrant, to contest the proof of any of these matters. If as a result of any evidence given or legal submissions made in the District Court anything arises in the nature of fatal defects appearing on the face of the documents or there are other matters sufficient to warrant the court holding that it ought not to accept the proofs presented in pursuance of the statute, then the District Justice may decline to make the order for the extradition sought. Alternatively he may adjourn the proceedings pending the presentation of further evidence on behalf of the requesting party to substantiate the matters relied upon in the documents presented by the requesting party to the court pursuant to ss. 51 and 54 of the Act of 1965. It is to be noted that the statutory provisions contained in s. 55 of the Act do not characterise the evidence therein referred to as being either amounting to prima facie evidence or to any greater degree of proof. The sectionsimply states that the statutory proofs shall be evidence of the matters therein referred to. In the ordinary way therefore it would appear that unless the District Justice sees some good reason to the contrary he should not require further evidence as to the statutory proofs other than the statute provides for.

What is invoked 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 procedures 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 by necessary implication gives rise to such a single 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 must be one which if followed in this State would be condemned as being unconstitutional.

Apart from some very obvious considerations which could arise, the present case provides a possible illustration of what could arise. One of the charges laid in the present case is that of conspiracy. It is accompanied by a charge relating to the substantive offence. For many years judicial authorities have condemned the joinder of a conspiracy charge when there is a charge for the substantive offence. Whatever justification may exist for preferring this charge of an inchoate crime such as that it may prevent a substantive crime from being committed it is difficult to see what, if any, justification can exist in justice for adding it to the substantive offence if charged. To adopt it as a policy is, to say the least, very dubious. Because of the wide ambit and the elasticity of the offence it can operate most oppressively. Naturally the advantage to the prosecutor of such a charge is that it widens the evidence which may be introduced and permits the introduction of evidence which would be totally inadmissible against the accused person tried on the substantive charge with another person or tried alone. The special rules of evidence which apply to conspiracy have in the light of experience demonstrated that it is not always desirable in the interest of justice to have such a charge. It can, for example, result in wholly innocent persons being convicted on the untrue ‘admissions’ of a co-accused. Thus if the courts of this country should at some future time decide that these special rules of evidence were such as to fall foul of the constitutional guarantees of fair procedures it is obvious that no court here could extradite a person from the protection of this jurisdiction to another where such protection would not be enjoyed.

The question which was before the District Justice and before the High Court and this Court was whether the failure to provide or cause to be provided to the applicant a copy of the sworn information grounding the warrant in this case amounted to an unfair procedure or a denial of fair procedures. If the provision of such an information were to be always necessary then obviously it should be part of the statutory proofs required to be put before the District Justice. In the present case it has not been sought to argue that it should be always a necessary proof. What has really been sought in the present case is that the applicant’s legal advisor should ‘have a sight’ of the information or a copy thereof so that he may be thereby assisted in testing the validity of the warrants in which they are recited and upon which the warrants were grounded.

There may well be cases, and it is unnecessary to endeavour to enumerate them in this judgment, where because of the particular circumstances or the run of a case such production would be necessary to ensure that the procedure before the Irish courts conformed to a fair procedure. However, in my opinion, this is not one of them. If the former situation should arise and the District Justice finds that he cannot enforce the production of the information he can either adjourn indefinitely or dismiss the proceedings. No such occasion has arisen in the present case. The only information put before the court is to the effect that the applicant wrote to the English prosecuting authorities for a copy of the informations and he received no reply. Apparently he had not even reached the point of asking a legal correspondent or agent in England to ask to have a sight of the informations.

The court has been told that the practice in England in indictable crime is that the accused does not get a sight of the informations until after the return for trial. The contrary is the case in this country where a person is provided with a copy of the information in the book of evidence before the preliminary investigation commences. However, that is not in itself a fundamental matter and the only relevance sought to be attached to it in this case is the claim by counsel for the applicant that in at least one if not more cases in our courts in dealing with warrants issued in the United Kingdom it has been shown that the warrant in question was not in fact backed up by the information therein recited. The court has no knowledge of this matter and therefore cannot go into it. If, of course, it could be established that the courts here were being sent warrants which in fact were not backed up by the recited informations, then the good faith of the requesting courts would be seriously called in question and it might affect subsequent cases. Extradition being a matter of reciprocity requires good faith from each side. The courts must not be subjected to requests for extradition which in fact conceal some other purpose or some totally different charge. See State (Hully) v Hynes 100 ILTR 145 where it was not disclosed that the real purpose of the effort to secure the return of Mr Hully was to charge him with revenue offences. A fortiori if the real purpose of an extradition warrant is to make somebody available for interrogation it would equally be a matter of bad faith. All warrants sent are representations that the purpose is to bring the person charged before the court of the requesting party on the charge specified and that at the time the warrant was issued there was sufficient evidence to justify the issuing of the warrant.

In the present case, so far at least, nothing has been advanced except submissions based at best upon speculation. I am conscious however that the matter has not yet been heard fully by the District Court so my view on this point is necessarily confined to what has been done so far. The matter is still one which the District Justice has to decide, bearing in mind the aforementioned considerations which he must bring to bear upon the case. In my view, this appeal should be dismissed.

There is one other matter to which I would like to refer in this judgment and to which I have already drawn attention during the hearing. In the English language the name of this State is ‘Ireland’ and is so prescribed by Article 4 of the Constitution. Of course if the courts of the United Kingdom or of other states choose to issue warrants in the Irish language then of course, they are quite at liberty to use the Irish language name of the State as prescribed in the Constitution. However they are not at liberty to attribute to this State a name which is not its correct name. It is quite clear from various warrants which have come before this Court from time to time that this is a conscious and deliberate practice. In effect it is a refusal to recognise a provision of the Constitution of Ireland. Every court in this State and every member of the Garda Siochana is duty bound to uphold the Constitution and not to condone or acquiesce in any refusal to recognise the Constitution or any part thereof. If the courts of other countries seeking the assistance of the courts of this country are unwilling to give this State its constitutionally correct and internationally recognised name then, in my view, the warrants should be returned to such countries until they have been rectified. Henceforth it should be the concern and care of the requesting prosecuting and judicial authorities of another state not to ignore or brush aside the fundamental law of this State. It should be the concern and care of the Irish authorities not to permit the existence of any such a situation.

The name of the State is as provided for in Article 4 of the Constitution. In 1948 the Oireachtas enacted Acht Phoblacht na hEireann in both the Irish and English languages. In the latter language it is entitled ‘the Republic of Ireland Act 1948.’ It does not purport to change the name of the State nor could the Oireachtas do so even if it so wished. An amendment of the Constitution would be required for a change in name. Foreign diplomatic representatives in this State cannot be accredited to the President of ‘the Republic of Ireland’. All plenary summonses are issued over the name of the Chief Justice of Ireland. In all of the treaties of accession to the European Communities the name of the State appears (in the English language) as Ireland and is so recognised by all the member states in these treaties. Such is also the case in other international agreements and treaties. If there is any confusion in the United Kingdom courts possibly it is due to the terms of the United Kingdom statute named ‘the Ireland Act 1949’ which, of course, is of no force or effect in this State. That enactment purported to provide that this State should be ‘referred to … by the name attributed to it by the law thereof, that is to say, as the Republic of Ireland’ (emphasis supplied). That of course is an erroneous statement of the law of Ireland. It is difficult to know what could have caused such an error to be made except perhaps an incomplete knowledge of our law. Historically it is even more difficult to explain. There is only one state in the world named Ireland since it was so provided by Article 4 of the Constitution in 1937 and that name was acknowledged by a communiqué from No. 10 Downing Street, London in 1937. Indeed it is worth recalling that the report of the Law Enforcement Commission presented to the United Kingdom parliament in May 1974 and published by Her Majesty’s stationery office (Comnd 5627) was addressed ‘to the Secretary of State for Northern Ireland and the Minister for Justice of Ireland’. I trust that this brief excursus will assist the courts of the United Kingdom in drawing up warrants which they hope to have recognised in the courts of Ireland.

McCARTHY J:

S. 55 of the Extradition Act 1965 provides:

(1) In any proceedings, unless the court sees good reason to the contrary —

(a) A document appearing to be a warrant issued by a judicial authority in a place in relation to which this Part applies for the arrest of a person for an offence may, if the signature on the warrant is verified as indicated in s. 54(1), 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; …

The issue arising in this appeal is whether or not on simple request being made to the appropriate English authority as well as to the Irish authorities to be shown a copy of the information recited in such a warrant and the same not being made available, would constitute ‘good reason to the contrary’, within the terms of the subsection.

S. 55 identifies an evidential procedure and, in particular, in combination with s. 54(1), specifies the documents which may be received by the Commissioner of the Garda Siochana and acted upon by the court. These are as follows:

1. A document appearing to be a warrant issued by a judicial authority in a place in relation to which Part III of the Act applies.

2. 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.

3. 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. Pursuant to s. 55 these documents are to be admitted and, once admitted, with the due endorsement shown as prescribed by s. 43, then, absent any of the impediments contained in s. 47, the District Court shall make an order for the delivery of the person arrested into the custody of a member of a police force of the place in which the warrant has been issued.

Despite the apparent completeness of the statutory scheme, it is argued that the District Court or the High Court or this Court may make an added requirement of documentary evidence — the production of the information cited in the warrant.

An extradition arrangement, whether effected by statute as in Part III of the Extradition Act 1965 or by treaty pursuant to statute as, for instance, with the United States of America and with the Commonwealth of Australia, is a political act of foreign policy entrusted to and carried out by the government pursuant to Article 29.4.1° of the Constitution. The terms and conditions upon which such an extradition arrangement is made are, subject to compliance with the Constitution, solely within the discretion of the government. The role of the courts is to ensure that the statutory requirements are met and that no breach of the Constitution or constitutional rights occur. It is not suggested that the absence of any requirement for production of the information establishes a constitutional frailty. It is sought to imply such a requirement into s. 55 and, in particular, into the phrase ‘unless the court sees good reason to the contrary’. It is fundamental to adding words by implication that if the relevant parties considered a question at the relevant time, they would have inserted such words. It is, in my view, inconceivable that the draughtsman of s. 55 could have overlooked so obvious a document as the sworn information that ordinarily underlies any warrant. The arrangement made between the government of Ireland and the government of the United Kingdom embodied in the Extradition Act 1965, s. 55 and the reciprocal legislation in the United Kingdom did not and cannot without legislation include a requirement of the production of the sworn information as one of the relevant documents under s. 55. It was not relevant for that purpose; it is not relevant under a less precise principle of fair procedures which is the other leg of the argument propounded on behalf of the applicant.

It is trite to say that there seems no valid reason why as a matter of courtesy such a document would not be produced; it is an obvious comment that the failure even to answer the request from the English solicitors was a discourtesy.

In his judgment just delivered, Walsh J has adverted to the possibility that a person may be removed by order of a court or otherwise out of this jurisdiction to another jurisdiction where he might be exposed to practices or procedures which if exercised within this State would amount to infringement of his constitutional rights, and illustrated this by reference to a charge of conspiracy being brought. As to what charge may be brought, a topic not raised in argument, I express no view. As to procedures, I recognize that there are many countries in which trial by jury of serious crime is unknown. In my judgment in Russell v Fanning [1988] IR 505, 507 having quoted from my judgment in Shannon v Fanning [1984] IR 569, 598, I said:

This requirement of reciprocity is not limited to the ‘one offence’ factor; it requires compliance with the constitutional fair procedures that apply in this jurisdiction.

I repeat my observation that, subject to the constraints that I have sought to identify, the making of extradition arrangements and the procedures for their enforcement are matters for political decision by the government, and it alone. The Oireachtas, at the instance of the government, enacted Part III of the Extradition Act 1965 limiting the requirements as to production of documents to those that I have stated; absent a constitutional frailty, it is not for the courts to interfere in that political decision.

It is not alone in that context that I endorse the views expressed by Walsh J, as to the use of the correct name of the State in documents emanating from courts of other countries which seek the assistance of the courts of Ireland. Once attention has been drawn to this which appears to be a conscious and deliberate practice, the courts in Ireland should refuse to sanction any further such refusal to recognize Article 4 of the Constitution. If this means that in a case such as the present a warrant will not be endorsed, as it should not, or, if endorsed will not be enforced by the courts, the problem will not have been created within this jurisdiction. It should be unnecessary to point out that s. 2 of the Republic of Ireland Act 1948 by which it was declared that the description of the State shall be the Republic of Ireland did not, in any fashion, affect the name of the State as prescribed by Article 4 of the Constitution.1

In my view, no lawful reason has been demonstrated as to why the proceeding under the Extradition Act 1965 should not proceed before the District Justice. I would dismiss the appeal.

Finucane v McMahon [1990] ILRM 505
Finlay CJ
This is an appeal brought by the plaintiff/applicant against the order of the High Court dated 7 April 1989, made by a Divisional Court, dismissing both his claim for release pursuant to s. 50 of the Extradition Act 1965 and his claim for release pursuant to Article 40 of the Constitution.

The applicant was convicted at the Crown Court in Belfast of having had in his possession on 20 August 1981 two rifles and a quantity of ammunition with intent by means thereof to endanger life or cause serious injury or to enable any other person by means thereof to endanger life or cause serious injury to property, and was, on 14 June 1982 sentenced to eighteen years’ imprisonment.

On 25 September 1983 the applicant escaped with others from the Maze Prison in Northern Ireland. His delivery to Northern Ireland is now sought on a number of warrants relating to offences alleged to have been committed in the course of that escape, and on a warrant requiring him to serve the unexpired balance of the sentence already imposed upon him.

I will first deal with the application pursuant to Article 40 of the Constitution.

This was submitted both in the High Court and on this appeal upon the following grounds, that is to say:

The Court would be failing in its duty to protect his fundamental constitutional rights if it permitted his return to Northern Ireland to serve the balance of his sentence in the Maze Prison where, it is alleged, that there is a probability that he would be subjected to assaults and inhuman treatment by prison officers and would be subject to a prison regime which permits its staff, either personally or with dogs to assault prisoners, to deprive them of or delay access to doctors or solicitors, to commit perjury, to be uncooperative with enquiries or with investigations conducted by the Northern Ireland Office, the governor of the prison or the Royal Ulster Constabulary, without being disciplined.

This submission is largely based on the judgment of this Court in Russell v Fanning [1988] ILRM 333, where, at p. 340 in the course of my judgment I stated:

I would accept that if a court upon the hearing of an application to set aside an order for delivery under the Extradition Act 1965 were satisfied as a matter of probability that the plaintiff would, if delivered into another jurisdiction, be subjected to assault, torture or inhuman treatment it would, in order to protect the fundamental constitutional rights of the plaintiff be obliged to release him from the detention and to refuse to deliver him out of the jurisdiction of these courts.

Counsel for the applicant in part relied upon this principle, but submitted that some less standard of proof than probability was appropriate in the application of the principle and suggested that it would be more correctly stated as being only necessary for an applicant in order to obtain the protection of this rule to establish a ‘real danger’ of such events occurring. This particular submission was based upon the fundamental nature of the constitutional rights involved and upon the finality of permitting delivery out of the jurisdiction which of necessity prevented further protection of constitutional rights by the court.

The duty of the court ‘as far as practicable to defend’ the constitutional rights of the applicant may not necessarily be best served by any rigid formula of standard of proof.

I am satisfied that what is necessary is to balance a number of factors, including the nature of the constitutional right involved; the consequence of an invasion of it; the capacity of the court to afford further protection of the right and the extent of the risk of invasion. Upon the balancing of these and other factors in each case, the court must conclude whether its intervention to protect a constitutional right is required and, if so, in what form.

The primary facts concerning this issue were proved by affidavit and by oral evidence in the High Court. In the course of their judgments with each of which Costello J agreed, Hamilton P and Gannon J set out in convenient form the facts which they found arising from this evidence. In addition, certain other facts of somewhat less importance for the issue here arising were established in uncontested evidence. The learned trial judges then proceeded to raise inference from the facts as found by them.

I am, it seems to me, on this appeal obliged to consider and, if appropriate, to review those inferences.

The facts so found or established can thus be summarised.

1. 38 prisoners escaped from H-Block in the Maze Prison into the grounds of the prison, and most of their number escaped from the prison itself, imprisoned a number of prison officers and, in effect, fought their way out of the prison.

2. In the course of the escape Prison Officer Ferris was stabbed and died from a heart attack. Lord Chief Justice Lowry, as he then was, in the trial of a number of accused in respect of charges arising out of the escape, held that he could not be satisfied beyond a reasonable doubt, that the stabbing was the cause of the heart attack.

3. The applicant was, in an official report on the escape made in 1985, identified as one of the persons involved in the attack on Prison Officer Ferris.

4. Four other prison officers were stabbed; two prison officers were shot; 13 prison officers were kicked and beaten; and 42 were subsequently off work with nervous disorders.

5. The applicant gave evidence that before the escape he was threatened by two prison officers, whom he named, with being taken out and executed if in protests or prison disturbances any member of the prison staff was injured. Of tjese two named persons evidence was given that one had been murdered by the IRA and that the other was still alive, though retired from the prison service. No evidence was tendered on behalf of the surviving prison officer denying the accusation of the making of a threat.

6. Immediately after the escape a great number of IRA prisoners remaining in H-Block were assaulted by prison officers, including assaults by dogs handled by prison officers on being moved to a different prison block.

7. Medical and legal assistance was not made available upon request to the prisoners who had been assaulted for about four days after the date of the assault, and this was due to action taken by the prison staff out of what they said was respect for the death of their colleague, Prison Officer Ferris.

8. The prison officers refused to cooperate with every form of enquiry into the allegations of assault by them in the aftermath of the escape, and clearly at an early stage entered into a widespread conspiracy to deny absolutely all accusations of assault or ill-treatment, and also to deny the refusal of requests for medical assistance.

9. These denials were maintained by the authorities who were the named defendants in claims made by the prisoners for damages for assault. This denial appears to have been made despite the existence of a number of reports of investigations by different bodies and persons, including the Board of Prison Visitors, which while incomplete due to the non-cooperation of both the prison officers and of the prisoners themselves, must be read as being strongly indicative of the existence of some major breach of discipline and some form of ill-treatment or assault.

10. The conspiracy was finally uncovered in a trial of a claim made by one of the prisoners, Pettigrew, before Hutton J (as he then was) when documents were produced which had earlier not been revealed to counsel acting on behalf of the defendants which clearly indicated the absolute falsity of the denial of unsatisfied requests for medical assistance, and which led the learned trial judge in that case to conclude, having regard to the medical evidence adduced as well, that the denials of the actual assaults were also false. What he there described as the conspiracy to cover up the assaults in defeasance of these claims, he strongly condemned.

11. Although since the time of the judgment in the case of Pettigrew v Northern Ireland Office in 1988, ex gratia payments are being offered to prisoners whose claims had previous to that time been dismissed by reason of the false evidence given against them, and although other pending claims, the evidence would indicate, are now being treated as assessments of damage, it would appear that no disciplinary action of any description has been initiated against any of the prison officers in relation either to the misconduct by way of assaulting prisoners or to their misconduct in attempting to pervert the course of justice. There does not appear to have been any criminal charge against any of the prison officers and, on the evidence, I would be driven to the conclusion that no disciplinary or criminal charge is likely in the future.

12. Many of the prison officers who were guilty of these assaults and this perjury are still serving in the Maze Prison, and none has been discharged from the service because of any part of this conduct.

13. Hutton J in the course of his judgment expressed the opinion, with which I would agree, that one of the probable causes of these unjustified assaults was anger at the death of Prison Officer Ferris.

It was submitted by the respondents that the very fact that so many of the prisoners have now successfully brought their claims before the courts in Northern Ireland indicated that there was no ground for the applicant’s fear of invasion of his constitutional rights.

I have no difficulty in accepting that if ill-treatment of any of the prisoners in the Maze Prison is brought to the notice of the courts in Northern Ireland it will be condemned and remedied. The very forthright and unequivocal language of the judgment of Hutton J in the judgment which was before this Court in Pettigrew’s case amply supports such a belief.

This Court has, however, as its primary obligation the duty to prevent such invasions of the appellant’s rights and it is not a sufficient discharge of that duty for it to rely upon the vindication of those rights by compensation after they have been invaded.

Having carefully considered the findings of fact made by the Divisional Court and the uncontested evidence before it, I have come to the conclusion that there is a probable risk, if the applicant were returned to the Maze Prison in Northern Ireland that he would be assaulted or injured by the illegal actions of the prison staff.

In reaching this conclusion I have been particularly influenced by the fact that he has been, rightly or wrongly, identified as being involved in the attack on Prison Officer Ferris, which, it is reasonable to assume, members of the prison staff may well still associate with his death, notwithstanding the ruling in the criminal case.

If they do, the total absence of any repercussions on the staff as a result of the ill-treatment of prisoners in the aftermath of the escape, and from that point of view the success of their conspiracy to cover up their conduct would appear to make the applicant, in my view, a probable target for ill-treatment.

The present detention of the applicant is in pursuance of an order of the District Court made pursuant to the Extradition Act 1965 for the delivery of the applicant into the custody of the RUC for the execution of warrants which include a warrant for the detention of the applicant in the Maze Prison to serve the unexpired balance of the sentence of 18 years imposed on him on 14 June 1982. Having regard to the findings made by me I am satisfied that this Court should prohibit such delivery in order as far as practicable to defend the applicant’s constitutional rights which are protected by Article 40.3 of the Constitution. His further detention therefore on foot of this District Court order would become unlawful.

Claim pursuant to s. 50 of the Extradition Act 1965
With regard to the plaintiff’s claim for exemption in respect of a political offence pursuant to s. 50 of the Extradition Act 1965, I have read the judgment which is about to be delivered by Walsh J.

In so far as that judgment endorses the principle laid down by this Court in Quinn v Wren [1985] ILRM 410 I agree with it, and see no reason to alter the views expressed by me in that case.

In so far as it dissents from the application by the majority of this Court of that principle to the facts established in Russell v Fanning my position is as follows.

I accept that any extradition case must be decided in the light of its own facts and circumstances and that the question as to whether the principle laid down in Quinn v Wren is applicable to any particular case depends on whether the activity constituting the offence charged or the conviction recorded, as the case may be, can legitimately be construed as subverting the Constitution and usurping or endeavouring to usurp the function of the Government under the Constitution.

The view expressed by Walsh J in his judgment in this case, that the activity constituting the conviction of the plaintiff could not be so construed is manifestly a decision reached after the most comprehensive and detailed consideration of all the relevant factors. It is a view which I am aware is supported by the majority of my other colleagues in this Court in this case.

In these circumstances, having regard to the fundamental nature of the issues which arise in extradition cases, I am satisfied that it would be consistent with the jurisprudence of this Court that I should accept this view so that the basic principles underlying it may clearly represent the decision of this Court.

I would, therefore, allow the appeal and direct the release of the plaintiff.

WALSH J:

This is an application for the extradition of the appellant to Northern Ireland on foot of a warrant charging him with escaping from prison, the object of which is to return him to serve a sentence in the prison from which he escaped.

On 14 June 1982 the applicant was convicted in Northern Ireland on the charge of having guns and ammunition with intent to endanger life contrary to Article 17 of the Firearms (Northern Ireland) Order 1981. The offence took place on 28 August 1981 and on 14 June the applicant was sentenced to 18 years’ imprisonment. On 25 September 1983 he escaped from that imprisonment at the Maze Prison in Northern Ireland.

On 5 October 1987 20 separate warrants for the arrest of the appellant were issued in Northern Ireland relating to offences alleged to have been committed by him during the course of the escape from prison. The warrants were sent to this jurisdiction for execution and were endorsed for execution by the respondent. He was arrested within this jurisdiction on foot of the said warrants and brought before the District Court which in due course made orders of extradition in respect of each of the 20 warrants and also a 21st order of extradition on foot of another warrant for the arrest of the applicant which has been issued seeking his extradition to Northern Ireland to continue to undergo the prison sentence of 18 years.

Since then it has been made clear that it is now the intention of the Director of Public Prosecutions in Northern Ireland to prosecute only in respect of seven of the original 20 warrants in addition to the 21st warrant. Each of the seven warrants refers to incidents alleged to have occurred during the prison break.

The applicant brought proceedings in the High Court pursuant to provisions of s. 50 of the Extradition Act 1965, and also proceedings for an order pursuant to Article 40.4.2° of the Constitution that his detention was not in accordance with the law. The cases were heard together in the High Court by a Divisional Court consisting of the President of the High Court and Gannon and Costello JJ.

The applicant in an affidavit sworn on 7 July 1988 claimed that the offence in respect of which he was convicted in Northern Ireland, namely, possessing arms with intent to endanger life, was committed by him as a member of and on behalf of the IRA of which he was a member of an active service unit and that the operation was directed against armed British soldiers who were on active service. In respect of the escape he claimed that as ‘a republican prisoner of war’ it was his duty to escape and he had been instructed by the ‘republican camp staff’ in the prison to escape. He also swore in the affidavit that the offence which was directed against the armed British soldiers who were on active service was confined to attempting to end British rule in Northern Ireland and that he did not have as an objective the subversion of the Constitution of Ireland or the usurpation of the organs of state established by the Constitution. He made a similar averment in respect of the purpose of the escape. He also swore that the objectives of the IRA in general was not to subvert the Constitution of Ireland or to undermine by force the organs of state established by the Constitution.

The President of the High Court in dismissing the applicant’s claim drew attention to the fact that the IRA is an illegal organisation in this jurisdiction by virtue of SI No. 162 of 1939 made pursuant to the provisions of s. 18 of the Offences Against the State Act 1939. The learned President stated that he did not accept the truth of the averments made by the applicant in relation to the general objects of the IRA. The learned President took the view that the facts of the case were indistinguishable from those in Russell v Fanning [1988] ILRM 333 and that he was bound by the judgment of the Supreme Court in that case, which had been delivered by the Chief Justice. In effect the learned President was saying that because the applicant was a member of the IRA, an organisation which he accepted as being one which had as its aims and objectives the overthrow of the organs of state set up under the Constitution, that an act done in the furtherance of any of the aims of the IRA could not qualify for the political exemption contained in the Extradition Act 1965. Gannon J in his judgment on this issue in the case also came to the conclusion that for the reasons stated in the majority judgment of the Supreme Court in Russell v Fanning that the political exemption was not available to the applicant. Costello J also agreed with the reasons stated by his two colleagues.

On the question of the political exemption counsel on behalf of the applicant has urged the court ought not to follow its own decision in Russell v Fanning on the grounds that the reason given by the Chief Justice for holding that the political exemption did not apply in the case of Russell was based on the unwarranted inference that the Oireachtas never intended the political exemption in provisions of the Extradition Act 1965, to apply in respect of acts such as those alleged against Russell because such acts amounted to a violation of Articles 6.1 and 6.2 of the Constitution and that such activities amounted to subversion of the Constitution and the usurpation of the functions of government.

For the sake of clarity it is best to quote the exact words used by the learned Chief Justice which appear at p. 338–339 of the report and which are as follows:

The objectives for which, on the affidavit of the plaintiff, the attack was made on Detective Superintendent Drew and the objectives which were a factor in the escape by the plaintiff from the Maze Prison were to achieve the reintegration of the national territory by force of arms. The plaintiff states that he is a member of an organisation, the Provisional IRA, which intends to carry out the task.

The Constitution and in particular Articles 6.1 and 6.2 make it quite clear that, subject to the provisions of the Constitution, decisions as to the method by which the national territory is to be integrated are matters for the government subject to the control of Dail Eireann, and that the carrying out of these decisions is exercisable only by or on the authority of the organs of state established by the Constitution.

Any person or group of persons is, of course, entitled to advocate a particular policy of reintegration, whether that is or is not consistent with existing government policy from time to time.

For a person or a group of persons however, to take over or seek to take over the carrying out of a policy of reintegration decided upon by himself or themselves without the authority of the organs of state established by the Constitution is to subvert the Constitution and to usurp the functions of government. In my view, ‘political offence’ within the meaning of s. 50 of the Extradition Act 1965, cannot be construed so as to grant immunity to a person who by his own admission has, in respect of the matters with which he is charged, that objective. This ground of appeal must therefore fail.

The learned Chief Justice had earlier in the judgment agreed with O’Hanlon J’s decision in the High Court in the same case that by reason of the decision of this Court in Quinn v Wren [1985] ILRM 410 he was bound to interpret s. 50 of the Extradition Act 1965 as excluded from the meaning of ‘political offence’ offences committed for the purposes set out and with the aims and objectives set out in the plaintiff’s affidavit. In Russell v Fanning the court was asked to overrule its decision in Quinn v Wren which the court declined to do. The decision in Quinn v Wren was based on the reasoning that as the Extradition Act 1965 was passed since the coming into force of the Constitution the first and fundamental rule which governed the interpretation of the Act must be the presumption that the Oireachtas intended by its provisions not to offend against any expressed or implied provision of the Constitution. The decision reasoned that it therefore followed that s. 50 of the Act of 1965 could not be construed as granting exemption from extradition on the ground of the political exemption in the Act to anybody charged with an offence, the purpose of which ‘is to subvert the Constitution or usurp the functions of the organs of state established by the Constitution.’ As a statement of principle I think it cannot be questioned and is manifestly correct.

However it is well established that every extradition case must be decided in the light of its own particular facts and circumstances. The question must arise whether the particular activity for which the applicant was convicted in Northern Ireland and the escape subsequently made can legitimately be construed as subverting the Constitution and usurping or endeavouring to usurp the function of the government under the Constitution. The activities under review in Quinn v Wren namely, the objective of the establishment of a ‘Thirty Two Counties Workers Republic by force of arms’ was an objective clearly aimed at the overthrow of the Constitution and the organs of government set up under the Constitution and, in the appropriate case, could be treasonable and in contravention of Article 15.6 of the Constitution.

In Russell v Fanning the decision was to the effect that the activities impugned amounted to a violation of Article 6 of the Constitution. In the present case the respondents relied upon the decision of Russell v Fanning to govern the decision in this case on the point of whether or not the political exemption provision of the Extradition Act 1965 was available to the present applicant.

The first thing to observe is that the decision of the High Court on this point was based essentially upon the fact that the IRA is an illegal organisation in this jurisdiction upon the grounds set out in the statutory instrument already referred to pursuant to s. 18 of the Offences Against the State Act 1939. Yet the particular incident which led to the conviction of the applicant, and which is the activity that falls to be examined in the present case, was one which occurred outside the jurisdiction and was related to an episode involving the applicant and a member or members of the British army. The learned President of the High court declined to believe that the IRA did not have as one of its objectives the overthrow of the Constitution of Ireland. The refusal to accept the claim to the contrary concerning the objectives of the IRA cannot without more prove that the particular offence of the applicant had such an objective. In effect the case was decided upon the fact that he was a member of the IRA and linked to its general objectives rather than on the particular activity in question which led to his conviction.

Membership of the IRA obviously does not attract the political exemption simply because of such membership in respect of any offence committed by any of its members. The nature and objective of the particular activity must be the test. Being a member of the IRA does not by itself disqualify any activity of a member from the application of the political exemption. Quinn v Wren was decided upon the particular activities in question which were held to be aimed at the overthrow of the State. The same rule would apply to anybody or any group of persons, whether members of the IRA or not if their activities came within those the subject of consideration in Quinn v Wren. Members of the IRA might be prosecuted and convicted outside the jurisdiction of this State for political activities totally unconnected with the reintegration of the national territory as, for example, connected with the political situation in other countries. In such an event if the matter came before the courts here by way of an application for extradition the matter would have to be examined as to its nature and motivation before deciding whether the political exemption should apply.

Nobody may be extradited from this State in respect of any offence unless it can be done within the terms of the Extradition Act 1965 (No. 17), the Extradition Act 1987 (No. 1) and the Extradition Act 1987 (No. 25). The present case is governed only by the 1965 Act but the body of legislation dealing with extradition must be looked at as a whole and in the light of the legislative history of the subject before deciding on whether the inference upon which Russell v Fanning was decided can be justified.

Northern Ireland is part of the national territory as defined by Article 2 of the Constitution. Pending the reintegration of the national territory Article 3 of the Constitution provides that the laws enacted by the Oireachtas shall have the State as the area and extent of their application and may have extra-territorial effect if the Oireachtas so enacts. Since 1920 emergency powers legislation has existed in Northern Ireland with recurring bouts of civil unrest resorted to from time to time by members of the local minority community in armed pursuit of a political philosophy of reunification of Ireland. Since 1971 the IRA has embarked upon a protracted guerilla campaign in pursuit of the same philosophy in the form of rural but more often urban guerilla activity which relies heavily on the use of firearms, bombing, intimidation and significant support from sections of the local population. This has been met by highly sophisticated measures of counter-insurgency especially designed to defeat political subversion and political violence. It is unnecessary to detail the breadth and extent of such measures which include military and non-military measures including, as part of the process, the criminalisation of the political violence with important changes in the substantive and procedural law of the area. The claimed objective of the IRA is to inflict a military defeat or to demonstrate that the government of the area is unable effectively to govern the area. As in the case of the 40 or so other small wars which are going on in the world at the moment it is quite different from an open and declared inter-State war as envisaged by the Geneva Conventions and from a numerical point of view the IRA and its supporters would scarcely meet the criteria of the protocols to the Geneva Conventions relating to internal civil wars. However it would be quite unrealistic to regard the situation as other than a ‘war or a quasi war’ to use the words of McDermott J (as McDermott LJ then was) in what is known as the Patrick McElhone case on 10 March 1975 when he tried and acquitted a British soldier on a charge of murder at Belfast City Commission in a non-jury trial. When the case was referred to the House of Lords by the Court of Criminal Appeal of Northern Ireland under the name Attorney General for Northern Ireland’s Reference (No. 1 of 1975) ([1977] AC 105 and [1976] NI 169) Lord Diplock who read the leading speech referred to the situation as ‘a state of armed and clandestinely organised insurrection against the lawful government of Her Majesty by persons seeking to gain political ends by violent means …’ (see p. 136 of AC and p. 206 of NI)

On 1 September 1976 Dail Eireann resolved pursuant to Article 28.3.3° of the Constitution that ‘arising out of the armed conflict now taking place in Northern Ireland’ a national emergency existed affecting the vital interest of the State. On the same day Seanad Eireann passed a resolution in identical terms. These resolutions are still in force. These resolutions, pursuant to the said provision of the Constitution referred to ‘an armed conflict in which the State is not a participant’ and it is unnecessary for the purpose of this judgment to consider whether that provision requires neutrality on the part of the State in respect of the conflict or whether or to what extent intervention of any sort is permitted. It is sufficient to note that the conflict affects the vital interest of this State and therefore the State must take such measures as it considers necessary to protect those interests within the State.

Three years prior to that resolution an agreement known as the Sunningdale Agreement had been reached following a conference between the government of Ireland and the government of the United Kingdom and other participants in the non-violent political life of Northern Ireland. It was agreed by the parties at that conference that persons committing crimes of violence, however motivated, in any part of Ireland should be brought to trial irrespective of the part of Ireland in which they were located. Different ways of solving the problem were discussed among them were ‘the amendment of legislation operating in the two jurisdictions on extradition, the creation of a common law enforcement area in which an all Ireland court would have jurisdiction, and the extension of the jurisdiction of domestic courts so as to enable them to try offences committed outside the jurisdiction.’ It was agreed that problems of a considerable legal complexity were involved, and that the Irish and British governments would jointly set up a commission to consider all the proposals put forward at the conference and to recommend as a matter of extreme urgency the most effective means of dealing with those who commit these crimes. In due course a body known as the Law Enforcement Commission was appointed jointly by the two governments in December 1973.

The terms of reference of the commission are to be found at p. 7 of the report of the commission, made on 25 April 1974. The terms of reference expressly included a reference to the question of extradition and the subsequent report indicates that it was considered in considerable detail. In this context what the Commission was concerned with were offences which were then currently accepted as being political offences or offences connected with political offences within the meaning of the Extradition Act 1965 with the view to qualifying the political exemption in its application to a schedule of specified offences by excluding from the exemption particular politically motivated offences involving violence. The commission was informed by the Irish government that it was pointed out at the Sunningdale Conference by the representatives of the Irish government that ‘it is a well recognised principle in international law that the extradition of a person accused of a political offence does not take place and that the Irish government did not feel that a departure from a principle of international law so firmly established could be justified.’

What emerged as a result of the conference was legislation enacted by the Oireachtas and, in almost identical terms, legislation enacted by the parliament of the United Kingdom providing for extra territorial jurisdiction in the domestic courts. The Irish legislation, namely, the Criminal Law (Jurisdiction) Act 1976 contained a schedule of offences for which persons could be tried here even though the offences were committed in Northern Ireland. The offences scheduled were the ones most commonly occurring for political motives although under the terms of the Act they are not confined to political motivation and are equally applicable to offences committed without any political motive. It has been pointed out by Mr Colm Campbell in his learned article entitled ‘Extradition to Northern Ireland: Prospects and Problems’ in the Modern Law Review, Vol. 52 (1989) p. 585, that in terms of securing convictions of fugitive offenders in respect of politically motivated crimes committed in Northern Ireland the Criminal Law (Jurisdiction) Act 1976 has been conspicuously more successful than the extradition process. He further points out that the practical difficulties of the extradition method of dealing with the problem predicted in paragraph 71 of the report of the Law Enforcement Commission has been shown to have been correct.

It is thus clear that the Oireachtas chose not to legislate to qualify the political exemption contained in the Act of 1965 but, clearly recognising its application to politically motivated offences committed in Northern Ireland, instead chose to deal with the situation by means of the enactment of the Criminal Law (Jurisdiction) Act 1976. The political exemption provision is still the law in this State and as a principle has remained unrepealed. In fact it has been reiterated in subsequent legislation concerning extradition although abated in its application in certain cases as set out in the Extradition Act 1987 (No. 1), to give effect to the European Convention on the Suppression of Terrorism.

The effect of the European Convention on the Suppression of Terrorism as adopted by our legislation has been, to put it in very general terms, to withdraw from the political exemption offences involving the use of explosives or automatic firearms (which by their nature tend to be indiscriminate in their effects) and any attempts at the same, and offences involving kidnapping, the taking of hostages or serious false imprisonment. It also withdraws the political exemption in respect of other matters which are not immediately relevant to the present case. S. 4 also enables a court to take into account any particular serious aspects of an offence including the collective danger to the life, physical integrity or liberty of persons or affected persons foreign to the motives behind it, or that cruel or vicious means were used in the commission of the offence. The references to ‘collective’, ‘persons foreign to the motives’ and ‘cruel and vicious means’ are recognised elements of terrorism. The court is empowered to form the opinion by reason of these elements that the offence could not properly be regarded as a political offence or an offence connected with a political offence. None of these is applicable to the present case and therefore it is unnecessary to consider them further.

My object in referring to this recent legislation is to indicate that a distinction has been drawn between what is strictly regarded as terrorism and what is regarded as politically motivated offences or offences connected with political offences. Putting it briefly political offences are defined as offences usually, though not necessarily, consisting of violent crime directed at securing a change in the political order. The effect of the adoption of the Council of Europe Convention was to enable derogation from what the Council of Europe in the report accompanying the convention called ‘the traditional principle according to which the refusal to extradite is obligatory in political matters’ in respect of certain acts of violence. It is thus clear that the use of violence does not in itself take an act out of the political exemption but particular forms of violence such as those already indicated will be grounds for abating the political exemption. This will not effect any change in the distinction between pure political offences and relative political offences, as defined by Ó’Dálaigh CJ in Bourke v Attorney General [1972] IR 36.

The Extradition Act 1965 was modelled upon the provisions of the European Convention on Extradition and follows it closely. Article 3 of the convention prohibited extradition in respect of offences which were regarded by the requested party as political offences or offences connected with political offences. Article 26 enabled parties to make reservations in respect of Article 3 but the government of Ireland made no such reservation either in respect of events in Northern Ireland or elsewhere, and in the subsequent legislation based upon the convention, namely, the Act of 1965 no such qualification was made.

In our domestic law we do not recognise the existence of political exemption to offences committed within the State and triable within the State in respect of offences which are politically motivated. However, the legislative provisions for the political exemption apply in respect of those parts of the national territory which are not within the State, as well as to places outside of Ireland, subject to the qualifications to be found in the legislative provisions already referred to and to others not referred to and not relevant to the present case.

It is quite clear that in international law indiscriminate attacks or killing of the civilian population is contrary to the laws of war and can be classed as crimes against humanity even if they have a political objective and are also acts of terrorism whether committed by a state or by those seeking to overthrow a state. A similar outlook is at the heart of the European Convention for the Suppression of Terrorism. Needless to say terrorism can exist without any political motivation such as where a section of the population is terrorised in the course of personally motivated banditry.

The expression ‘terrorism’ is frequently used as a blanket term for many violent acts ranging from pure terrorism to nationalist uprisings to achieve independence. For purely propaganda purposes it is frequently used to characterise activities disapproved of by the propagandists. Only a looseness of thought can equate it with violence as opposed to peaceful persuasion. ‘Terrorism has no agreed definition and its use is often a way of conveying disapproval rather than being descriptive’ — ‘Suppressing Terrorism under the European Convention, a British Perspective’ by H.V. Lowe and J.R. Young. (Netherlands International Law Review 1978 Vol. XXV, 305). The essential ingredients are instilling terror in the public or a section of it for the purpose of intimidating such persons and the indiscriminate nature of attacks which put in jeopardy the lives or safety of civilians or other persons unconnected with the objectives of the attack.

The decision of this Court in McGlinchey v Wren [1983] ILRM 169 which acknowledged that the political exemption was expressly disclaimed by the appellant, touched upon the distinction between an act of terrorism and a ‘political offence’. In that judgment the court did not seek to attach any particular definition to the expression ‘political offence’ or a particular definition of ‘terrorism’. One must therefore assume that the terms were used in their ordinary accepted meaning. It is furthermore to be noted that the case dealt solely with the particular facts of the case which disclosed a totally indiscriminate type of attack with a machine gun on a private dwelling-house when a civilian totally unconnected with any political objectives was killed. As the evidence stood this offence was correctly characterised as terrorism, with which the appellant denied any involvement and for which he was subsequently acquitted. The treatment of the matter in that case did not determine that a politically motivated offence would cease to qualify for the exemption simply because violence was used. Furthermore the decision expressly left open for future consideration the conclusion that might be reached in different circumstances. The ‘reasonable man’ test referred to must be a purely objective approach not to be influenced by sympathy or lack of sympathy with the aims or the means employed. The British Prevention of Terrorism Acts, the latest of which was enacted in 1989, defined terrorism as the use of violence for political ends, and includes the use of violence for the purpose of putting the public or any section of the public in fear but does not create any offence of ‘terrorism’. It is a definition devoid of any legal basis in international law and is simply an ad hoc definition for the purpose of permitting the detention of persons who are suspected of such activity. It has restricted application in geographical terms in that it applies only to such activities which relate to Northern Ireland affairs and to countries outside Great Britain, the Isle of Man and the Channel Islands. It is not applicable to acts of political violence if perpetrated by Scottish nationalist extremists or Welsh nationalist extremists or English extremists such as the ‘Angry Brigade’ if the activities relate only to the affairs of those respective areas. The law in this State, whether legislative or otherwise has never accepted any such imprecise definition.

The fairly elaborate list of offences against the State which are set out in the Offences Against the State Act 1939 cover all the matters which could be in a general sense referred to as political offences within the State. It is noteworthy that the Oireachtas has not given any of these offences an extra-territorial effect. Thus the Oireachtas has, in effect, declined to make criminal under the Offences Against the State Act acts of the like nature committed outside the jurisdiction. Prior to the enactment of the Extradition Act 1965 the Oireachtas was well aware of the past history of unrest and armed conflict in Northern Ireland, yet elected to make no provision for dealing with acts done in Northern Ireland until the enactment of the Criminal Law (Jurisdiction) Act 1976.

In particular it was aware of the fact that because of the renewal in 1956 of armed conflict aimed at the ending of partition by the use of force Part II of the Offences Against the State (Amendment) Act 1940 was brought into force on 8 July 1957 and remained in force for some years. Thus the question of the legal situation of persons accused of armed political activities in Northern Ireland cannot have been absent from the minds of the members of the Oireachtas. In subsequent extradition legislation no such provision was made and that fact coupled with the particular provisions made in the Criminal Law (Jurisdiction) Act 1976 demonstrates that the Oireachtas intentionally refrained from characterising as matters directed to the overthrow of this State or as activities designed to usurp the functions of our government, the political violence in Northern Ireland which had as its objective the re-integration of the national territory. Furthermore the Oireachtas in framing the 1965 Act did not avail of the provisions of Article 26 of the European Convention on Extradition in any way to modify the effect of Article 3 of that convention which was incorporated into the Act of 1965, namely, the exemption of political offences or offences connected with political offences. In fact the policy adopted, as is evidenced by the Act of 1976, and by the Convention of Dublin agreed on 4 December 1979 by the member states of the European Communities, appears to have been one to give effect to the maxim aut dedere aut judicare .

In the light of the review of the political and historical background to our extradition legislation, which I have attempted to summarise, I am of opinion that the court cannot draw the inference that it was the intention of the Oireachtas that the provisions relating to the political exemption in the Act of 1965 should not apply to persons charged with politically motivated offences of violence when the objective of such offences was to secure the ultimate unity of the country.

It is, of course, true that it always has been the policy of successive Irish governments to endeavour to ensure that reunification is brought about by peaceful means. The fact that the policy adopted by persons engaged in the armed conflict in Northern Ireland is to seek to achieve the same means by violence, deplorable and counter-productive as it is, demonstrates that such persons are pursuing a policy which is opposed to and contrary to and at variance with the policy adopted by the government of Ireland. If these activities were undertaken within this jurisdiction they would, of course, be clearly within the contemplation of the domestic law. But in so far as they occur outside the jurisdiction they do not, save to the extent that they fall within the ambit of the Criminal Law (Jurisdiction) Act 1976. The fact that the policy or activities followed by persons acting outside the jurisdiction of the State is opposed to or contrary to the policy adopted by the government of Ireland in relation to the unity of the country is not, in my view, sufficient to equate it to a policy to overthrow this State or to subvert the Constitution of this State. In one sense any offence which damages the political interest of the State is a political offence whether committed inside or outside the State. But that is a matter for which the State must expressly legislate. There may be many matters in international affairs including warlike activities in respect of which the government of this State has a particular interest or a particular policy including that under Article 29 of the Constitution, of seeking to promote the peaceful settlement of international disputes. But that in itself would not be sufficient to enable the courts to deprive anybody who involves himself in the same dispute, in a manner opposed to the general government policy and who becomes a fugitive in this State, of the benefit of the statutory provisions dealing with the political exemption.

Under our legislation, unlike the position in many other states, the decision that a fugitive offender shall be extradited is exclusively a judicial one. The Minister for Justice can within the provisions of the Act of 1965 direct that a person shall not be extradited. His power in this regard is more restricted than that vested in the executive in other states but it is an additional safety factor in the process as he may have better access to information from his political and diplomatic sources which ordinarily would not be available to the courts and, possibly, could negotiate for better treatment for the fugitive if returned.

For the courts however, extradition cannot be treated as a question of foreign policy. They must remain completely impartial and detached and free from all political or diplomatic pressure in their objective determination of the issues involved. In addition they must safeguard the constitutional rights of the fugitive and ensure that there will be no rendition which would subject the fugitive to injustice or to any treatment or procedure which would be inconsistent with the norms of our concept of fair procedures. While foreign proceedings may be fair and humane without conforming in all respects with the particular guarantees in our Constitution, our statutory provisions do not permit the courts to ignore the motives of the requesting state or the fairness of the procedures by refusing to consider the treatment the fugitive will receive if returned. Neither should our courts ignore the answerability of the State to the organs of the European Convention of Human Rights and Fundamental Freedoms if a fugitive offender is handed over to any other State, whether a member of the Council of Europe or not, where the courts are not satisfied that his treatment there would not be in breach of the rights protected by the convention.

In my view the decision in Russell v Fanning on the application of the political exemption ought not to be followed. There is no valid ground to infer from the plain and unambiguous meaning of the appropriate provisions of the Act of 1965 that the Oireachtas did not intend them to be applicable to a case such as the present one. The words themselves and the legislative context and ambiance of this subject all point to the opposite conclusion.

I wish to add that I am satisfied that the analysis and the conclusions of Hederman J and McCarthy J in their respective judgments in Russell v Fanning are valid.

For the reasons I have given I am satisfied that the offence for which the applicant was convicted was one which would have qualified for the political exemption and that the alleged offences the subjects of the present extradition proceedings are all so closely connected with the original offence as also to attract the political exemption — see the judgment of this Court in Bourke v Attorney General — and on their own would also attract the like exemption.

For these reasons I would allow the appeal on this aspect of the case.

I agree with the judgment of the Chief Justice on the Article 40 aspect of the case and I would allow the appeal on that ground also.

GRIFFIN J:

Two questions arise for decision in this case:

1. Whether the offences alleged to have been committed by the appellant Dermot Finucane in the course of his escape from the Maze Prison in Northern Ireland, and the offence in respect of which he was serving a sentence of 18 years’ imprisonment, and in respect of which the warrants issued in Northern Ireland, were political offences or offences connected with a political offence, which would entitle the appellant to avail of the political exemption pursuant to s. 50 of the Extradition Act 1965, and

2. Whether his release from custody should be directed by the court pursuant to Article 40 of the Constitution irrespective of whether the political exemption was available to him under s. 50.

In the course of the argument made on behalf of the appellant on the issue of the political exemption, it was submitted that the decisions of this Court in Quinn v Wren [1985] ILRM 410 and Russell v Fanning [1988] ILRM 333 were wrongly decided, or alternatively should not be followed, or in the further alternative should be distinguished. A like submission had been made, and was rejected, in Russell v Fanning in which the court had been invited to overrule its decision in Quinn v Wren. I have had the advantage of reading in advance a copy of the judgment delivered by the Chief Justice and of that delivered by Walsh J. As has been pointed out by the Chief Justice in Quinn v Wren, and by him and by Walsh J in the instant case, every extradition case must be decided in the light of its own facts and circumstances. Like the Chief Justice, in so far as the judgment of Walsh J upholds the principles established in Quinn v Wren, I entirely agree with it. In respect of the decision of this Court in Russell v Fanning, Walsh J has, in his judgment, expressed the view that, on the application of the political exemption, the case should not be followed. He reached this conclusion after a thorough examination and review of all the facts and circumstances existing at the time of the conviction of the appellant of the offence in respect of which he was convicted and sentenced, and at the time of his escape from the Maze Prison, and of the provisions of the Extradition Act 1965. Notwithstanding, and with due respect to his views, as expressed in his judgment, I remain of the opinion that Russell v Fanning was correctly decided. But as I am aware that the principles stated by and the conclusions reached by him are supported by my two colleagues who are to follow, thus forming the majority of the court, I do not propose to elaborate on my opinion. However, as this is the court of final appeal, although it may not be necessary to do so, I should like to say that, having regard to the importance of the use of precedent in our system of jurisprudence as providing a degree of certainty upon which members of the public are entitled to rely in the conduct of their affairs, the principles established in and the conclusions reached by the majority of the court, are those which should now be applied in all cases in which the political exemption is in issue.

In respect of the application pursuant to Article 40 of the Constitution, I am satisfied that even if the political exemption was not available to the appellant, the court should refuse to deliver him out of the jurisdiction and should direct his release from custody. On this question, I am in complete agreement with the judgment of the Chief Justice, and with the reasons stated by him for the conclusions at which he arrived. I would like however to add some observations of my own.

The 38 prisoners who escaped on 25 September 1983 were housed in H Block 7, which contained over 120 prisoners in all. On the evening of the escape the prison authorities decided to transfer all the remaining prisoners in H Block 7, a total of 88, to H Block 8 which was about 60 to 70 metres away and was unoccupied, to enable a thorough search to be made for hidden weapons and to enable the police to conduct their investigation in that block. Along the route which the prisoners had to traverse there were German shepherd dogs, in the charge of prison officers who were dog handlers, on either side, four dogs being on the right and three on the left, and in addition two dogs in the yard of H Block 7. Before the transfer took place and after the dogs had first taken up positions, the governor of the prison, Mr Whittington, who was present for only a few minutes, ordered that the dogs should be moved back behind a little wall along the route. Having regard to the events that occurred subsequently, it would appear that after the departure of the governor the position of the dogs was changed to their original position notwithstanding his orders.

A large number of prisoners alleged that, in the course of their transfer, during which most of them were in their bare feet and were naked from the waist up, they were assaulted by prison staff and bitten by the dogs. They further alleged that, on 26 September, they made requests to see one of the doctors who attend the prison and that these requests were refused or ignored. They allege that further requests on 27, 28 and 29 September were also refused or ignored.

On 26 September Mr Whittington had a meeting with representatives of the Prison Officers’ Association and was told that, as a mark of respect to Officer Ferris, they were imposing certain conditions from 14.00 hours on Monday until after the funeral of the officer. On the following day, 27 September, Mr Whittington learned that the prison officers were not accepting requests by prisoners to see a doctor. He was very concerned at this, and sent for the representatives of the Prison Officers’ Association. He expressed his concern to them, and asked them to change their attitude, but they were not willing to do so. He then reported the matter to the Northern Ireland Office. On Friday, 30 September, being the day after the funeral of Officer Ferris, he ordered that the prison would return to normal functioning. A number of prisoners did not in fact receive visits from the doctor until nine to ten days after the escape.

Because of the allegations that prisoners had been assaulted on 25 September, and bitten by dogs, the prison department of the Northern Ireland Office requested the governor of the prison to carry out an investigation into these allegations. This investigation commenced early in October 1983 and was carried out by Mr McLaughlan, the deputy governor of the prison. His report was completed in November 1983, and in it he stated that ‘I have met with what could be described as “a wall of silence” in my attempt to investigate the allegations’. This was from both prisoners and prison officers. However, a number of prison officers, including the dog handlers, who had been involved in the transfer of prisoners to H Block 8, made written statements which were furnished to Mr McLaughlan and in which they all stated that no prisoner had been assaulted and no dog had come into contact with a prisoner. All officers declined to be interviewed by Mr McLaughlan.

All the foregoing facts are to be found in the judgment of Hutton LCJ in an action taken by Brian Pettigrew against the Northern Ireland Office and the governor, hereinafter referred to.

A large number of prisoners instituted proceedings against the Northern Ireland Office and the governor of the prison in respect of the assaults, including dog bites, alleged to have been suffered by them. Three of these actions were tried in the County Court. In each of the three cases a number of prisoners and former prisoners gave evidence on behalf of the plaintiffs that they had been bitten by dogs in the course of the transfer to H Block 8, and that their requests to see a doctor had been refused or ignored. A large number of prison officers gave evidence to the effect that no one had been bitten by a dog and that no request for a doctor had been refused. All three actions were dismissed.

One of the prisoners transferred on the day of the escape was Brian Pettigrew. He commenced proceedings in the High Court of Justice in Northern Ireland, claiming damages for (inter alia) assaults (including dog bites) alleged to have been suffered by him in the course of his transfer, and in respect of the alleged failure or refusal of the governor to allow him to see a doctor. The action was tried by Hutton J, as he then was. It would appear that after the plaintiff had given evidence and been cross-examined, it was stated by his counsel that it was proposed to call as witnesses on his behalf persons who were prisoners in H Block 7 on the day of the escape and who were transferred to H Block 8, and who, it was alleged had been assaulted by prison officers and bitten by dogs in the course of the transfer. Counsel for the defendants objected to the admissibility of such evidence. The learned trial judge heard arguments on the admissibility of that evidence, and in due course delivered a written judgment, which I presume to have been a reserved judgment. He held that the evidence of the other prisoners that they were bitten by dogs was admissible in evidence in that case.

The trial continued and the learned trial judge, who by that time had become Lord Chief Justice, delivered judgment in writing on 17 November 1988. In that judgment, he said at p. 6 that Mr Campbell, QC, for the defendants, in the course of his cross-examination and pursuant to his instructions, put to the plaintiff and to other former prisoners called as witnesses that if they had made a request to see a doctor on Monday 26 September and on the subsequent days, that request would have been granted. But after the trial had proceeded for two weeks, Mr Campbell informed the court that documents had just come to light which showed that his instructions were incorrect and that the true position was that if such requests had been made on any of the four days following the escape, the request would not have been granted.

It appears from the judgment that all the dog handlers and the principal officer in charge of them stated in evidence that no dog had bitten or come into contact with any prisoner. In addition, the Lord Chief Justice stated that it was suggested to the plaintiff and to the prisoners and former prisoners called by him that, if they had made a request to see a doctor on Monday 26 September, in order to obtain treatment for alleged dog bites, arrangements would have been made for them to see a doctor, the implication being that they had not done so because they had sustained no bites.

Doctors who had been called to examine the plaintiff in that case and to examine other prisoners nine or ten days after the escape, gave evidence, and the Lord Chief Justice found (inter alia):

1. that having regard to the doctors’ evidence he did not believe the evidence of the dog handlers and the principal officer in charge of them that no prisoner was bitten by a dog;

2. that a number of prisoners, some of whom were naked from the waist up, did have injuries from dog bites when they arrived in H Block 8;

3. that a number of prison officers who gave evidence about the activities of the dogs must have lied in the witness-box.

He stated that it is deplorable that a prisoner being moved from one part of a prison to another should have been bitten by dogs in the charge of prison officers. The plaintiff in that case was awarded damages, including aggravated and exemplary damages.

It is for the purpose of putting the appellant’s application under Article 40 of the Constitution into proper context that I have dealt with the aforesaid matters at some length. It is clear that a number of crimimal offences were in all probability committed by some, at least, of the prison officers in the prison — these would include assault, perjury, and conspiracy. Although it is now more than six years since the escape, no prison officer has been disciplined, suspended, dismissed, or charged with any offence. During the course of the hearing of the appeal in this Court in Russell v Fanning, in which judgment was delivered on 19 January 1988, a suggested explanation for such failure to discipline etc was that a large number of claims for damages had been brought by the prisoners and were then unresolved.

Whilst that explanation may have appeared plausible at the beginning of 1988, it was no longer so after Hutton LCJ delivered his judgment. It is now clear from the reports made by the governor, the deputy governor, the medical records of the prisoners, and the medical reports of the doctors who attended them, that the prison authorities were well aware of the fact that requests for medical attention were refused and that there was evidence that some prisoners had been bitten by dogs. Moreover, with this knowledge, three actions were successfully fought in the County Court by the prison authorities on the false basis that there had been no requests for medical treatment, and that no person had been bitten by a dog. Many of the prison officers who were serving at the prison in September 1983, and who gave evidence, are still serving there.

In the case of the appellant, there are further factors which are of considerable relevance on the issue arising in pursuance of Article 40. In his affidavit, he alleged that in April 1983 he was taken out of one of the workshops in the prison by two warders, whom he named, and threatened with execution by them if any warder was injured in disturbances which were then taking place in the prison. One of those named by him was murdered by the IRA on 17 February 1985. The other has since retired from the prison service, but could have been available to swear an affidavit that such allegations were untrue. No such affidavit was provided for this case.

Furthermore, as a result of the escape, an inquiry into the security arrangements at the Maze Prison was conducted by HM chief inspector of prisons, and the report of the inquiry (known as ‘the Hennessy Report’) was submitted to the House of Commons in January 1984. Although only very few of those who took part in the escape are identified in the report, the appellant is identified at para. 2.19 as having chased Officer Ferris who ran from the gate lodge and was shouting to the officer at the pedestrian gate to secure it and sound the alarm. That paragraph continues:

‘He [Officer Ferris] had been stabbed three times in the chest. Before he was able to reach the gate, he collapsed and later died. Finucane continued on to the pedestrian gate where he stabbed two officers who had just entered the prison. Officer , the officer on gate duty, had no time to sound the alarm or secure the gate before he too was stabbed.’ (The names of all officers referred to in the report were omitted from the printed report for security reasons).

It seems to me to be a fair inference from that paragraph of the report that the appellant was being identified as the person who stabbed Officer Ferris. In R v Burns (1987) 9 Cr App R 57, 16 prisoners in the Maze Prison (the 16 not including the appellant) were indicted before Lord Lowry LCJ, as he then was, for the murder of Prison Officer Ferris. In his judgment acquitting all 16 of the charge of murder, Lord Lowry said that having carefully considered all the medical evidence about the heart condition of the prison officer, he could not be satisfied beyond reasonable doubt that the unlawful acts of any prisoner (‘including the so far unidentified prisoner who stabbed Prison Officer Ferris’) caused or helped to cause his death. Notwithstanding that finding, human nature being what it is, it appears to me to be highly likely that there are still prison officers in the Maze Prison who do not accept that the alleged activities of the appellant during the escape did not cause or contribute to the death of Prison Officer Ferris.

I agree with the Chief Justice that, if returned to the Maze Prison the appellant would, in the circumstances of this case, be a probable target for ill-treatment and I would concur in the order proposed by him pursuant to Article 40 of the Constitution. I would accordingly allow the appeal.

HEDERMAN J:

With regard to the plaintiff/appellant’s claim for exemption in respect of a political offence pursuant to s. 50 of the Extradition Act 1965 I agree with the judgment delivered by Walsh J.

On the applicant/appellant’s claim for relief pursuant to Article 40.4.2° of the Constitution, I agree with the judgment of Finlay CJ. I would allow the appeal on both aspects of the case.

McCARTHY J:

On 25 September 1983 there was a mass escape from H Block 7 of the Maze Prison in Northern Ireland. The plaintiff/applicant was one of those who escaped. His extradition to Northern Ireland has been ordered by the District Court. He sues by way of special summons for an order under s. 50 of the Extradition Act 1965 and, by way of judicial review, for an order of certiorari in respect of the District Court order and an order of habeas corpus (so called) being a complaint under Article 40.4.2°, of the Constitution that he is being unlawfully detained.

The s. 50 claim
The plaintiff says that his original offence, having guns and ammunition with intent to endanger life, was a political offence, and that the 20 other warrants issued in Northern Ireland relating to offences alleged to have been committed during the course of the escape were political offences or offences connected with political offences. To deal with that argument it may be said that all the offences have the same alleged general purpose; the original offence being committed as a member of and on behalf of the IRA, in an operation directed against armed British soldiers who were on active service; the escape offences being in carrying out his duty to escape on instructions by ‘the republican camp staff’. He abjured having any objective of subverting the Constitution or usurping the organs of state established by the Constitution (see Quinn v Wren [1985] ILRM 410).

The facts are not in issue; the legal inference to be drawn from the facts — whether or not the offences ‘qualify’ for the political exemption, is the legal issue. Therefore, no question arises as to where the onus of proving facts lies; the larger question as to where the onus lies of establishing that the offence in question is either a political offence or one connected with a political offence has not been argued in this appeal no more than it appears to have been argued in earlier cases, save in Bourke v Attorney General [1972] IR 36 (see State (Magee) v O’Rourke [1971] IR 205; McGlinchey v Wren [1982] IR 54; McMahon v Leahy [1985] ILRM 422; Shannon v Ireland [1984] IR 548; Quinn v Wren ( supra ); Maguire v Keane [1986] ILRM 235).

The plaintiff contends that Russell v Fanning was wrongly decided and should not be followed, that the appropriate law is as appears from the Bourke and Magee cases. Mr MacEntee SC, referred to a number of unreported decisions of the High Court between 1974 and 1976 all of which, he says, followed the ‘appropriate law’ (see Burns v Attorney General High Court (Finlay P) 4 February 1974; McLoughlin v Attorney General High Court (Finlay P) 20 December 1974; McCarry & Clarke v Attorney General 15 January 1976; Gilhooley v Attorney General 4 June 1976; McManus & Doherty v Attorney General 23 March 1977; Swords v Attorney General 22 December 1977; O’Hagan & Herron v Attorney General 18 July 1978; Quigley & Ors v Fanning 22 July 1980). They are noted at p. 303 of Hogan and Walker — Political Violence and the Law in Ireland . It was, the argument goes, an impermissible change in McGlinchey v Wren to introduce a totally new concept, no argument in relation to such a radical change having been heard. The effect was to empty the section of application in a vast number of cases. The logical sequence was to effect an outlawry, speculating on what other rights might be lost.

Russell v Fanning was decided in the High Court on 18 February 1986 and by this Court on 18 January 1988. Mr O’Flaherty SC, relies upon that decision and the principle of stare decisis as stated, although qualified, in Attorney General v Ryan’s Car Hire Ltd [1965] IR 642 and Mogul of Ireland v Tipperary (NR) County Council [1976] IR 260. Neither case is amongst those mentioned in the report of Russell v Fanning, in which O’Hanlon J, in the High Court, appeared to find that the offences there in question could be regarded as political offences or offences connected with a political offence. Despite that conclusion, against which the State brought but did not pursue an appeal, he concluded that the protection of s. 50 of the 1965 Act did not extend:

to the present case by reason of the fact that the offences alleged to have been committed by the plaintiff were committed for the purpose of promoting the objectives of the Irish Republican Army.

The Chief Justice referred to this (at p. 338) by stating:

On this issue O’Hanlon J, decided that having regard to the decision of this Court in Quinn v Wren [1985] ILRM 410 he was bound to interpret s. 50 of the Extradition Act 1965, as excluding from the meaning of ‘political offence’ offences committed for the purposes set out and with the aims and objectives set out in the plaintiff’s affidavit.

I understand the conclusion to be that whilst the offences are, in ordinary parlance, political offences or offences connected with political offences, they are not, because they purport to usurp the functions of government, to be treated as such within the meaning of s. 50.

In Magee’s case the plaintiff was charged before the Commissioner of Oyer and Terminer in Belfast with:

(1) Housebreaking with intent, contrary to s. 27(2) of the Larceny Act 1916;

(2) Using a motor car on the public highway without insurance contrary to s. 41 of the Road Traffic Act (Northern Ireland) 1955;

(3) Malicious damage to property contrary to s. 51 of the Malicious Damage Act 1861; and

(4) Assault on a peace officer contrary to s. 38 of the Offences Against the Person Act 1861.

FitzGerald J, (at p. 216) stated that none of these charges were political offences or connected with a political offence; Teevan J, agreed to allow the appeal, without giving any reasons therefor. Ó’Dálaigh CJ, with whose judgment Walsh J agreed stated (p. 211):

In as clear language as perhaps one could expect in the circumstances, Magee has confessed to being concerned in the preparation of an armed IRA raid on Holywood military barracks. There can be little room for doubt that his action falls either within the category of ‘political offence’ or of ‘offence connected with a political offence.’ Counsel for the respondent has offered no argument to the contrary and, in any event, in my judgment Magee has clearly brought himself within the terms of paragraph (b) of s. 50(2) of the Extradition Act 1965. (emphasis added)

Budd J did not directly comment on this question but stated, having reviewed, in detail, the evidence as to the intended raid on Holywood barracks (at p. 215):

This evidence and the inferences that, in my view, should be properly drawn from it lead me to the opinion that there are substantial grounds for believing that Magee, if removed from the State under the Act of 1965, will be prosecuted or detained for a political offence or an offence connected with a political offence.

In State (Quinn) v Ryan [1965] IR 70 at 120 Ó’Dálaigh CJ, stated:

The Article 6 argument upon which the majority decision in Russell v Fanning was based was not raised in Magee nor, presumably, in any of the many decisions of the High Court which followed on it. It might be validly argued that in making the order for extradition in Russell, O’Hanlon J was departing from an established legal principle and thereby infringing the rule of stare decisis.

The court is now asked to review the decision in Russell v Fanning and, if necessary, to overrule it. I have re-read the judgments in that case; because of the challenge made to it I am free to differ from its conclusion. I affirm the views I expressed, and the reasons I stated. Therefore, I agree with the conclusion expressed by Walsh J. S. 50 of the Extradition Act 1965 states a statutory imperative — that a person arrested under Part III shall be released if the High Court so directs in accordance with the section. A direction may be given by the High Court where the court is of opinion that the offence to which the warrant relates is a political offence or an offence connected with a political offence. Both these phrases must always be considered according to the circumstances existing at the time when they have to be considered. See the judgment of Ó’Dálaigh CJ, in Bourke at pp. 58–60. It follows that I would allow the appeal and direct the release of the plaintiff pursuant so s. 50.

I reserve for another occasion the consideration of what effect is to be given to undertakings by the prosecuting authority in another jurisdiction in respect of what may or may not be the subject of prosecution.

The Inquiry under Article 40.4.2°
I adopt the description of the relevant events as contained in the judgment of the Chief Justice. In Russell (at 363–364) I said:

A breakdown in discipline may be an understandable human reaction against those believed responsible for the death of a fellow prison officer; a failure to institute and carry out disciplinary procedures at least to identify, if not to punish, those responsible for assaulting the returned prisoners is, in my view, inexcusable and points to a breakdown in the prison system. Having regard to the conclusion I have reached on the first issue, it is not necessary that I should express a view on this question; suffice it to say that I incline to the view that the plaintiff had discharged the onus of proof sufficiently to impose upon the prison authority the burden of proof in respect of discipline of prison officers.

(a) Standard of Proof

The case concerns the personal liberty and bodily integrity of a citizen. Unlike other inquiries under Article 40 the consequence of holding the detention lawful is that the courts will have no effective role in the further protection of the constitutional rights of that citizen — he will be extradited back to the prison from which he escaped. So, the argument goes, there is a lesser standard of proof appropriate; it is not a question of probability but whether or not there is a real and substantial danger — a disproportionate risk that the applicant, if delivered into another jurisdiction, will be ill-treated. Mr MacEntee argues that it is never possible to show as a probability that people will behave outrageously. I do not accept that proposition. If in a series of instances it were shown that people in the same situation had been ill-treated over a period, then it is probable that another person put in the same situation and subject to the same control would be ill-treated. I accept, however, that in many instances, despite there being a very real danger, it is impossible to prove the probability of such ill-treatment. In my view, the courts charged with the protection of the Constitution and of the citizens whose fundamental rights are thereby guaranteed defence and vindication would fail in their duty if, being satisfied that there is a real danger that a citizen delivered out of the jurisdiction will be ill-treated, did not refuse to permit such delivery.

In the light of that, the courts must look at the circumstances of each case.

(b) The Danger

In Russell I inclined to the view that the plaintiff had discharged the onus of proof sufficiently to impose upon the prison authority the burden of proof in respect of discipline of prison officers. In Pettigrew’s case, to which the Chief Justice has referred, which was tried in the courts in Northern Ireland after the decision of this Court in Russell, an entirely new scenario was revealed. In Russell [1988] IR 505, 518 O’Hanlon J, said:

Once again, the evidence tendered on behalf of the plaintiff stops short of alleging or establishing the existence of a practice of ill-treatment or the use of unlawful violence by prison staff against prisoners in the Maze Prison. If the prisoners’ rights were infringed in the manner described, immediately after their recapture in 1983, they are being given an opportunity to vindicate their rights in court in the civil proceedings which are now pending. I am of opinion that by reason of (a) the lapse of time which has occurred since the break-out took place, (b) the civil proceedings for damages which other prisoners are now prosecuting, and (c) the publicising of these allegations in the present proceedings, coupled with the response evoked from the prison authorities, it is reasonable to assume that the ‘safe conduct’ promised in paragraph 10 of Mr Hassan’s affidavit is well-founded.

O’Hanlon J did not know that in a series of such proceedings perjured testimony would be given by prison officers as a result of which these claims would be dismissed. He did not know that a number of these prison officers would later sit in the High Court in Belfast listening to a false case being made by their counsel because of their lies — a case that had to be retracted in the course of the trial. He did not know that despite the dismissal of the claim in the courts in Northern Ireland the Northern Ireland Office would subsequently offer to compensate those whose actions had failed. He did not know that those prison officers who had lied in court or who had allowed their legal representatives to make a false case, who had conspired to pervert the course of justice would, so far as is known, remain undisciplined and unpunished still, presumably, serving in the prison service in Northern Ireland. He did not know that the prison officers at the Maze Prison would agree together to obstruct two official inquiries into the mass break-out from the prison to such good effect that a leading member of the Prison Officers’ Association expressed the hope that Deputy Governor McLaughlan ‘was meeting plenty of brick walls’. He did not know what level of administration in Northern Ireland was involved in that conspiracy to pervert the course of justice; in this case Hamilton P (p. 46) accepted that the Northern Ireland Office was not a party to such conspiracy. Whatever strictures may have been expressed by Hutton LCJ, in his judgment in Pettigrew’s case, the circumstance remains unchanged, that no disciplinary action has been taken against the prison officers. I do not overlook the fact that Russell was extradited and it may be inferred that he has not been ill-treated.

I agree that this Court should prohibit the delivery of the applicant in order as far as practicable to defend his constitutional rights which are protected by Article 40.3 of the Constitution.

McGuire v Attorney General [1994] 2 ILRM 344 Lynch J
This is an application pursuant to Article 40.4.2° of the Constitution seeking an order for the release of the applicant from custody notwithstanding that on 19 April 1993 the District Court pursuant to Part II of the Extradition Act 1965 ordered the detention of the applicant so that the Minister for Justice might order his extradition to the United States of America.

The applicant is charged with three serious offences in the United States namely that he:

(1) Did conspire to violate the Arms Export Control Act between November 1978 through 12 July 1989 in the State of Massachusetts and in other places in the United States of America in violation of 18 USC 371.

(2) Did conspire to injure or destroy property of a foreign government between November 1978 through 12 July 1989 in the State of Massachusetts and in other places in the United States of America in violation of 18 USC 956.

(3) Was in possession of property in aid of foreign insurgents between November 1978 through 12 July 1989 in the State of Massachusetts and in other places in the United States of America in violation of 18 USC 957.

The District Court found correspondence between these three charges and offences under Irish law and also found that all other formalities required by Part II of the Extradition Act 1965 had been complied with and accordingly made the order for the detention of the applicant.

The only issue for my decision is whether the alleged offences are political offences or offences connected with political offences. Even on that issue only one question arises for my determination, namely whether the decision of the majority of three judges or the minority of two judges in the House of Lords in the case of Cheng v. Governor of Pentonville Prison [1973] AC 931 should be preferred. The majority held that to constitute a political offence the activity the subject matter of the charge or conviction must have a political motive or purpose against or relating to the requesting state. The minority held the contrary.

The applicant does not claim to have any political motive or purpose against or relating to the United States of America or its government in anything which he may have done in the United States. He claims that anything he may have done in the United States was done with a political motive and for a political purpose against the government of the United Kingdom in relation to its rule and policy in Northern Ireland.

Counsel for the applicant submitted that it was not open to the court to insert words into s. 11 of the 1965 Act which are not there and he quoted extensively from the speech of Lord Simon of Glaisdale in Cheng’s case. He also referred to: State (Gilliland) v. Governor of Mountjoy Prison [1987] IR 266; [1986] ILRM 381; Cotterrell, Extradition and Offences of a Political Character (1973) 89 LQR 476–478; Finucane v. McMahon [1990] 1 IR 165; [1990] ILRM 505 and Shannon v. Fanning [1984] IR 569; [1985] ILRM 385.

Counsel for the respondents submitted that there is a distinction between a political act and a political offence and he quoted extensively from the majority speeches in Cheng’s case and especially that of Lord Diplock. He also referred to Ingard on Extradition , pp. 2 and 3 and pp. 175–6 and Shannon v. Fanning (above) and especially the judgment of McCarthy J generally and at p. 598 et seq.

Conclusions
S. 3(1) of the Extradition Act 1870 provides as follows:

A fugitive criminal shall not be surrendered if the offence in respect of which his surrender is demanded is one of a political character, or if he prove to the satisfaction of the police magistrate or the court before whom he is brought on habeas corpus, or to the Secretary of State, that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character.

The 1870 Act, except s. 24, was repealed by the Extradition Act 1965, s. 11 of which provides as follows:

(1) Extradition shall not be granted for an offence which is a political offence or an offence connected with a political offence.

(2) The same rule shall apply if there are substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons.

Lord Diplock at p. 946 of Cheng’s case says:

The purpose of the restriction, as it seems to me, was twofold. First, to avoid involving the United Kingdom in the internal political conflicts of foreign states. Today’s Garibaldi may well form tomorrow’s government. And secondly the humanitarian purpose of preventing the offender being surrendered to a jurisdiction in which there was a risk that his trial or punishment might be unfairly influenced by political considerations. As indicated by the inclusion of the second part of the restriction, it was suspicion of the motives of requisitioning states in seeking the surrender of fugitive criminals who were political opponents of the government of that state which underlay both the requirements of s. 3(1) of the Act. Such suspicion was understandable in 1870 in the light of the recent history of the struggle for the unification of Italy. But there could be no similar grounds for suspicion of the motives of a requisitioning state in seeking the surrender of a fugitive criminal who though a political opponent of the government of some other state was not a political opponent of the state demanding his surrender. Nor would there appear to be any greater risk that his trial or punishment for the offence in such a state might be unfairly influenced by political considerations than if he had committed the same offence in the United Kingdom and been tried and punished for it here. So if a purposive construction of the Act is adopted this too leads to the conclusion that an offence of a political character for the purposes of the restriction was intended to be confined to offences in which the purpose sought to be achieved by the offender was directed against the government of the state seeking his surrender.

It seems to me that this reasoning applies a fortiori to s. 11 of the 1965 Act. Subs. (2) is introduced by the words ‘the same rule’. Subs. (2) can manifestly apply to any of the matters mentioned therein only if they might occur in the requesting state. Applying ‘the same rule’ to subs. (1) it seems to me to envisage a political offence only in relation to the requesting State.

I quote also from the speech of Lord Salmon in Cheng’s case at p. 962 and I take the liberty of substituting ‘Ireland’ for ‘England’ and ‘the 1965 Act’ for ‘the 1870 Act’.
It seems to me that the benevolence with which it is said that [the 1965 Act] should be construed in favour of a fugitive offender must surely have some rational limits. Otherwise persons could, for example, bomb buildings or destroy civilian aircraft or murder visiting politicians in say the United States or any other country with which we have an extradition treaty with the motive of obtaining some political end in a far off land, knowing that they could escape trial and punishment by escaping to [Ireland]. This would act as an encouragement for the commission of crimes which would greatly endanger the lives of those who would be in no way concerned with or have any connection with the political ends for which the crimes were perpetrated. It would also mean that such crimes could be committed in this country with exactly similar results should the criminals escape to the United States or any other country which was party to an extradition treaty with [Ireland]. Extradition is never granted except on a reciprocal basis. Accordingly if such crimes were committed here and the criminals escaped abroad there is no chance of them being surrendered if [the 1965 Act] really bears the construction for which the appellant contends.

I can hardly regard that construction as favouring the liberty of the individual under the common law but only as something totally different namely a licence to kill in a foreign state to the great peril of its citizens when neither they nor their government have any connection with the political motive or ends for which the crime was committed.

I prefer the reasoning of the majority speeches in the Cheng case and in particular the reasoning of the passages which I have quoted above and I accordingly hold that the offences with which the applicant is charged in the United States of America are not political offences and I therefore refuse his application for an order for release pursuant to Article 40.4.2° of the Constitution.

Magee v O’Dea

[1994] 1 ILRM 540

Flood J
Background
The events which underlie the above entitled proceedings occurred in the City of Derby, England on 14 April 1992. On that date Sergeant Michael Newman, a serving member of the Royal Signals Regiment, and based at the army recruiting office, Main Centre, Derby was shot in the Liversage Street car park, Derby at about 4.23 pm as he walked towards his car. He had just got into the car park when he was approached from behind by two men. One of the men produced a hand gun and shot Sergeant Newman in the head at point-blank range. The assassin and his companion ran to a car driven by an accomplice and made off. Sergeant Newman died in hospital on 15 April 1992 from the gunshot wound he had received on the previous day.

On 12 January 1993 a warrant was issued for the arrest of the above named Joseph Magee, alleging that on 14 April 1992 at Derby in the County of Derbyshire, England he murdered the said Michael Newman contrary to common law. This warrant was issued by Barbara Leslie Copestake, a justice of the County of Derbyshire.

The said warrant was transmitted to the defendant, Edward J. O’Dea, assistant commissioner of the Garda Síochána in Dublin, who backed the warrant and authorised the execution of the warrant within this State by a member of the Garda Síochána. That backing or authorisation appears to be dated 13 January 1993.

On 9 January 1993, by a singularly fortunate but, apparently, unconnected event, the said Joseph Magee was arrested at Limerick pursuant to s. 30 of the Offences Against the State Act 1939, detained in Limerick Garda Station until 3 pm on Monday, 11 January and brought before a special sitting of the District Court charged with an offence of failing to give his name when so requested, contrary to s. 30 of the Offences Against the State Act 1939 and was thereafter remanded in custody to Limerick Prison until 14 January.

On 14 January he was brought before the District Court on the said charge. He was not at that point in time advised or made aware that there was going to be made an application for his rendition or extradition to the United Kingdom. At 10.15 am, whilst in custody in the courthouse in Limerick, Mr Ted McCarthy was introduced to him and he was told he was a solicitor, who had been retained, or sent in by somebody on his behalf. In conversation with Mr McCarthy he was advised by him, that the charge upon which he was in court was quite a minor charge and that he was unlikely to be put into prison on foot of it. Mr McCarthy further advised him that on leaving court he would be arrested on foot of an extradition warrant.

Shortly thereafter his case was called. Mr McCarthy informed the presiding judge of the district court, of the plaintiff’s name and address, which he, the plaintiff, duly confirmed and the proceedings were thereafter struck out.

On leaving court, the plaintiff, Joseph Magee, was arrested on the said English warrant by Sergeant Dan Hall, some documents were handed to him and he was brought back into court. Within minutes, the extradition case was called (details of the proceedings are hereafter referred to) and on its conclusion on the same day the learned district judge made an order pursuant to s. 47 of the Extradition Act 1965 directing his delivery, at point of departure, into the custody of a member of the Derbyshire Constabulary to be conveyed to Derby.

In addition, the learned district judge informed the plaintiff of his rights under s. 50 of the Extradition Act 1965 and of his right of appeal.

The matter now comes before this Court on:

(a) An inquiry under Article 40 of the Constitution; and

(b) An application for relief pursuant to the provisions of s. 50 of the Extradition Act 1965.

It should be noted that these two forms of proceedings are not alternates but are in fact proceedings based, one on the constitutional right of a citizen and the other upon the statutory right of the citizen in these circumstances. See State (McFadden) v. Governor of Mountjoy Prison (No. 1) [1981] ILRM 113.

It is common case that there are, in reality, three issues in this matter.

(a) The validity of the District Court order;

(b) Whether the offence charged in the warrant is a ‘political offence’ within the current jurisprudence of extradition proceedings in the context of the provisions of the Extradition Act 1965 and the Extradition (European Convention on the Suppression of Terrorism) Act 1987 and in particular ss. 3 and 4 of the said last mentioned statute; and

In the investigation and consideration of these issues this Court is not concerned in reaching a conclusion as to who was responsible for the death of Sergeant Newman. That is not within the remit of this Court.

As to (a) — Validity of District Court order
The plaintiff in his affidavit says that he learned for the first time on the morning of 14 January, whilst in the District Court, of the existence of an application for extradition, that within some 10 to 15 minutes the application was called, and having heard the state case, in particular as to the identification of the plaintiff as one and the same person as that described in the warrant, the district judge retired to consider the matter, returned and without consulting either the state solicitor or the plaintiff’s solicitor proceeded to recall Constable Neville Black of the RUC, and then questioned him on his basis for his identification of the plaintiff with the person named in the warrant.

After this the learned district judge again retired before coming out and announcing his decision.

There is a conflict of evidence between the plaintiff and Mr Michael D. Murray, state solicitor, on two matters, namely,

(a) as to whether or not the plaintiff’s solicitor, Mr McCarthy, cross-examined Constable Black when he first appeared in the witness box; and

(b) whether Mr McCarthy made any submissions to the learned trial judge at the close of the evidence or at any time.

I cannot resolve these in the absence of oral testimony. I am, however, satisfied that:

(a) extradition applications are not common form of proceedings in the Limerick District Court;

(b) that the learned district judge did not advise the plaintiff and/or his solicitor that if he wished to investigate in detail the documentary side of the case he would be entitled to an adjournment so to do;

(c) the learned district judge was unable to make up his mind at the close of the evidence as to whether identity of the plaintiff with the person named in the warrant had been established to his satisfaction beyond reasonable doubt because he came back for further evidence on this aspect of the case; and

(d) the district judge did not, prior to re-examining Constable Black, advise the plaintiff’s solicitor or the state solicitor of the precise nature of what he intended to do and seek submissions in the context of his expressed intentions.

In State (Holmes) v. Furlong [1967] IR 210 at p. 223 Walsh J sets out what the district judge must satisfy himself about, beyond reasonable doubt, namely,

(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 6 months; and

(4) if he is satisfied on the above points he should then consider the question of the point of departure from the State.

Barrington J in McFadden’s case having cited with approval a passage from the judgment of Gannon J in State (Healy) v. Donoghue [1976] IR 325 at pp. 335–336 says (at p. 118):

… But in extradition proceedings the freedom of the person sought to be extradited is also ‘put in jeopardy’ and that is why I have emphasised the reference to the ‘right to have an opportunity for preparation of the defence’.

Clearly, the very nature of the documents involved require some degree of checking and detailed consultation between the plaintiff and his adviser in relation to the question as to who could give evidence of identity and from what source. In circumstances where the district judge is well aware that the solicitor consulted has only been engaged within minutes before the matter has come before the court it seems that fair procedures demand that he should invite the solicitor concerned to take an adjournment to enable him to properly investigate and prepare his defence.

Further, our system of justice is an adversarial system. The State presents its case and as this is a quasi-criminal matter should establish the necessary proofs beyond reasonable doubt. I accept that a judge has a right to recall, or in fact call, on his own motion, a witness. All the authorities would suggest that this is a practice which should be sparingly used, and in particular, sparingly used in criminal matters, where the onus of proof is a strict onus of proof, as otherwise it may appear that he is descending into the arena and becoming partisan.

In this instance, clearly the presiding district judge, at the conclusion of the evidence was not satisfied on the question of identity and without reference to any participant returned to court, recalled evidence on identification and appears to have filled any lacunae that existed in the evidence.

It seems to me that the speed with which the matter was dealt with, the absence of any attempt on the judge’s part to ensure that all valid considerations could be given to various aspects of the matter by the defence solicitor and his action in failing to advise (inter alia) the plaintiff’s solicitor of his intention to recall evidence of identity, all appear to me to amount to unfair procedures in a matter where strict proof is required. I do not suggest that there was personal unfairness on the part of the district judge concerned but it would appear, however, to use the phrase used by Barrington J in McFadden’s case ‘that the procedure followed fell short of the constitutionally acceptable standards of fairness with the result that the order made by the learned district justice on foot of those proceedings is invalid and the prosecutor is not being detained in accordance with law.’

Lest I be in any error, I propose to deal with both the other issues raised.

As to (b) — The political exception.
In the immediate aftermath of the said assassination the press reported that the INLA (Irish National Liberation Army) claimed to have carried out the said attack. In fact it is deposed to in the affidavit of Jack Mulholland, who is an author and journalist resident in Belfast, Northern Ireland. He refers to, in fact, a press cutting of the Irish News of 15 April 1992. The said Mr Mulholland confirms in his affidavit that the INLA is an organisation which has as its aim the removal of the crown of the United Kingdom from Northern Ireland, that in pursuance of that object it is engaged in action against the forces of the crown both within Northern Ireland and Great Britain for a number of years and that the said murder of Sergeant Newman was committed by the INLA in pursuance of its policy of armed campaign against the crown forces and that the said murder had no apparent or latent aim to subvert the Constitution or institutions established by the Constitution of Ireland. The jurisprudence relating to, prima facie unlawful acts, which are motivated by the perpetrators thereof, by political motivation, and the consequent exemption from extradition, is to be found in the judgment of Walsh J in Finucane v. McMahon [1990] 1 IR 165 at pp. 207–217; [1990] ILRM 505 at pp. 512–523.

The respondent endeavoured to argue the case that the very nature of this crime clearly established it to be a terrorist crime, claiming that it was carried out by a terrorist organisation, meant to be part of a pattern of terror, the object of which was to put in terror persons who supported the establishment with which the said organisation was in conflict. He further submitted that the said assassination was excluded from the political exemption exception by the provisions of s. 4(1)(a)(i).

S. 4(1)(a) provides as follows:

4
(1)(a) For the purposes mentioned in paragraphs (a) and (b) of s. 3(2), an offence to which this section applies and of which a person is accused … outside the State shall not be regarded as a political offence or as an offence connected with a political offence if the court … having taken into due consideration any particularly serious aspects of the offence including—

(i) that it created a collective danger to the life, physical integrity or liberty of persons …

is of opinion that the offence cannot properly be regarded as a political offence or as an offence connected with a political offence.

S. 4(2)(a) says:

This section applies to—

(i) any serious offence (other than an offence to which s. 3 applies) of which a person is accused … outside the State—

(I) involving an act of violence against the life, physical integrity or liberty of the person ….

One of the conditions precedent to the said section exempting an offence from the category of political offence is that it created ‘a collective danger to the life, physical integrity or liberty of persons’.

The basis advanced by the respondent that the alleged offence in Derby is said to come within that category of ‘collective danger to life’, is the testimony of Ciaran Wright, detective inspector of the Derbyshire Constabulary at paragraphs 7 and 8 of his affidavit sworn on 14 June 1993. That evidence must be approached from an objective point of view and must be taken in the context of the manner in which the assassination was in fact carried out. Detective Inspector Wright refers to the presence of members of the public in the area at the time of the killing and in particular to a number from whom he and his officers have taken statements, the text of which are provided in summary form. Nowhere in those summaries is there any suggestion that any of the persons who have made statements felt endangered or affected by panic induced by the shooting. He then postulates a premise that members of the public ‘might have been killed if the offenders had been disturbed immediately before the shooting or the offenders had thought their escape might be prevented or had the shot been fired at a greater distance from the deceased or had missed the intended target’. This premise must be tested objectively by the fact:

(a) that there is no recorded instance of a member of the public feeling endangered.

(b) that there is no recorded instance of a member of the public claiming to have dispersed as a result of panic induced by the shooting.

Further, the premise must be further considered in the context of the fact that by any objective test the assassination was:

(a) clearly a planned operation.
(b) related to a specific individual.
(c) who was expected to be in a particular place at a particular hour.
(d) who was to be assassinated by a shot fired at point-blank range.
Further it is noteworthy that no charge has been laid against the plaintiff for possession of firearms with intent to endanger life.

In my opinion, judged by an objective test and by objective standards, the said assassination did not create a collective danger to the life, physical integrity or liberty of persons and, accordingly, in my opinion, does not come within s. 4 of the Extradition (European Convention on the Suppression of Terrorism) Act 1987.

I accordingly come to the conclusion that the assassination in question was a political offence within the political exemption clauses for which extradition does not lie.

As to (c) fair trial free from bias
The third issue is whether the plaintiff, if required to stand his trial in England, would obtain a fair trial, having regard to the quality and extent of the media publicity which followed the said event and which clearly and unequivocally related to him.

In considering the publicity, the standard of proof is laid down by the Supreme Court in D. v. Director of Public Prosecutions [1994] ILRM 435. That standard is that the court should require that it should be shown that there is a real or serious risk that the trial would be unfair if it were allowed to proceed. That standard is more fully articulated in the judgment of the Chief Justice, Finlay CJ at pp. 436–437 where he says:

I am satisfied that firstly, the right of an individual to a fair trial is of fundamental, constitutional importance. Secondly, it is clear that the unfairness which it is suggested would occur in this case would consist of an undisclosed recollection by one or more members of the jury of material contained in the newspaper; an association of that recollection with the trial before that person and an undisclosed influence upon the mind of that person in regard to the question of guilt or innocence. Such a form of unfairness could not by reason of its nature be subsequently established or corrected either on appeal or by a quashing of the conviction.

The fundamental nature of the constitutional right involved and of the incapacity of the court further to intervene to defend it leads, in my view, to the conclusion that the standard of proof which the court should require from the applicant in this case concerning his allegation of the likelihood of an unfair trial is that he should be required to establish that there is a real or serious risk of that occurring. Such an approach is consistent with the view taken by this Court in the different context of extradition proceedings in the case of Finucane v. McMahon [1990] 1 IR 165.

Further and later in his judgment he goes on to say (at p. 437) with regard to the actual publication ….
[I]t is, I think, important to point out its particularly lurid features, the simplicity of identification between it and the actual trial to which the applicant would have been subjected and the number of matters extraneous to any issue arising in that trial which are contained in the article, all of which would be highly prejudicial.

In reviewing the evidence I also have to take into account the views expressed in trenchant form by Denham J in the same case where she says at pp. 442:

A court must give some consideration to the community’s right to have this alleged crime prosecuted in the usual way. However, on the hierarchy of constitutional rights there is no doubt that the applicant’s right to fair procedures is superior to the community’s right to prosecute.

If there was a real risk that the accused would not receive a fair trial then there would be no question of the accused’s right to a fair trial being balanced detrimentally against the community’s right to have the alleged crimes prosecuted.

The facts underlying this aspect of the matter are that the murder of Sergeant Newman received extensive coverage in the local and national press in England in particular in the Daily Express , the Daily Mail , the Daily Star . The combined circulation of these papers in England would certainly exceed some 5 million copies.

The prejudicial aspect of this newspaper coverage lies in:

(a) Headlines such as ‘Army Murder: Find This Man’ with a picture of the plaintiff bearing the legend danger man and the column heading ‘This is the face of the suspected cold-blooded murderer of soldier Michael Newman’.

(b) In the Daily Star of 16 April heading ‘GET HIM’‘IRA murder cops, name Gun Psycho’ and again a picture of the plaintiff. He is also described in the Daily Star of 15 April as an animal. In the Daily Star of 15 April as a suicide cowboy who blew up Neave (Airey Neave). He is also described as a most wanted man and again in the Daily Mail of 15 April ‘hunt for limping Irishman’ and again his photograph. The entire article is in juxtaposition with another item in relation to investigations of another IRA terror campaign.

In considering the foregoing evidence which in my opinion is undoubtedly prejudicial one must bear in mind that these headlines and pictures were published in April 1992 almost two years ago and there must be an element of ‘fade’ in the recollection of the public from which potential jurors would be drawn.

It must also be borne in mind that there were published with the foregoing headlines, photographs of the plaintiff which effectively accused him as the person who was the cold-blooded murderer of the army sergeant in Derby.

In addition to the ‘fade factor’ the court must be alive to the fact that a trial judge in England would no doubt strongly and properly charge a jury in a manner which would indicate to them their obligation to try the issues before them only on the evidence adduced and to ignore sensational newspaper articles.

From the plaintiff’s point of view there is the very definite photographic identification of him as the murderer. This is a case in which identity must have a major role and certainly the defence would be embarrassed in cross-examination by the existence of these photographs or more particularly the captions underlying or noted with the photographs in question.

The question which this Court has to address is as the Chief Justice phrased it, the risk of ‘an undisclosed recollection by one or more members of the jury of the material contained in the newspaper; an association of that recollection with the trial before that person and an undisclosed influence upon the mind of that person in regard to the question of guilt or innocence. Such a form of unfairness could not by reason of its nature be subsequently established or corrected either on appeal or by quashing the conviction’.

As this is a fundamental constitutional right — the right to a fair trial and to fair procedures — strict construction is the appropriate form of construction to be applied by this Court. The onus of proof is one of probability of a serious risk of an unfair trial. The point in time at which this risk is to be considered to exist is now — when the plaintiff on extradition would leave the protection of these courts.

I have carefully considered the weight to be given to the lurid and sensational newspaper coverage, the existence of the photograph in the said newspaper and the unvarnished assumption that the person shown in the photograph is guilty of murder, the extent of the newspaper coverage in the national newspapers, the possibility that all or a great part of the foregoing would be rekindled in the mind of a juror trying a plaintiff and I have balanced that against the fade factor, and what I accept would be a careful charge by a trial judge to the jury directing them not to permit themselves be influenced by sensational and lurid newspaper coverage at the time or anything else other than what they hear by way of evidence in the court of trial. In my judgment, on the balance of probabilities, there is a serious risk of the type of unfairness contemplated by the Chief Justice in his said judgment which I have already quoted in D. v. Director of Public Prosecutions.

In the circumstances I would consider that extradition should be refused on this ground also.

Ellis v O’Dea (No. 2)

[1991] ILRM 346
Hamilton P
On 24 April 1989, two separate warrants for the arrest of one Desmond Ellis (hereinafter referred to as the applicant) were issued by one David Hopkins (described in each of the said warrants as ‘Chief Metropolitan Stipendiary Magistrate and Justice of the Peace for the Inner London area assigned to the South Westminster Petty Sessional Division, being a judicial authority in England and Wales competent and having power under the law of England and Wales to issue this warrant’).

The alleged offences, in respect of which the warrants were issued were as follows:

That Desmond Ellis, the applicant herein between 1 January 1981 and 27 October 1983 within the jurisdiction of the Central Criminal Court for England and Wales in the United Kingdom unlawfully and maliciously conspired together with Thomas Alphonsus Quigley, Paul Kavanagh, Gilbert Thomas Patrick MacNamee and other persons to cause by an explosive substance an explosion of a nature likely to endanger life or cause serious injury to property in the United Kingdom contrary to s. 3(1)(a) of the Explosive Substances Act 1883 and s. 7 of the Criminal Jurisdiction Act 1975, and

that the applicant between 1 January 1981 and 27 October 1983 within the jurisdiction of the Central Criminal Court for England and Wales in the United Kingdom unlawfully and maliciously had in his possession or under his control explosive substances with intent by means thereof to endanger life or cause serious injury to property in the United Kingdom or to enable any other persons so to do. Contrary to s. 3(1)(b) of the Explosive Substances Act 1883 and s. 7 of the Criminal Jurisdiction Act 1975.

Each of the said warrants are expressed to have been based on:

Information on oath having this day been laid before the said magistrate by Ian MacLeod that the applicant had committed the said offences.

On 26 April 1989, each of the said warrants was duly endorsed within this jurisdiction by Assistant Commissioner Edward J. O’Dea.

The applicant having been duly arrested in accordance with the terms of the said warrants was brought before the Dublin Metropolitan District Court.

On 8 January 1990, two orders were made by the said court in respect of the said warrants ordering the delivery of the applicant at Casement Aerodrome, Baldonnel, County of Dublin (being a convenient point of departure from the State) into the custody of a member of the Metropolitan Police being the police force of the place where the said warrant was issued and which is situate in England and Wales for conveyance to Bow Street Magistrates’ Court being the place where the said warrant was issued.

In each case the applicant was informed by the court on the making of the said orders that he would not be delivered up until the expiration of 15 days from the date thereof except with his consent given before a justice of the District Court or a peace commissioner and also of the right within the said period to have an application made by him or on his behalf for an order of habeas corpus or for his release under s. 50 of the said Act and that in the event of such application being made that he would not be delivered up while such application was pending.

On 19 January 1990 a special summons was issued in the High Court on behalf of the applicant claiming his release pursuant to the Extradition Acts 1965/1987.

On 18 June 1990 the applicant applied to the High Court and obtained an order in accordance with Article 40.4.2° of the Constitution that the respondent named therein, namely the Governor of Portlaoise Prison do produce before the court the body of the applicant and do certify in writing the grounds of his detention.

In the same order, it was ordered that the application pursuant to the provisions of Article 40 of the Constitution be consolidated with the action already referred to and instituted on behalf of the applicant on 19 January 1990.

On 27 June 1990, the respondent to the habeas corpus proceedings, the Governor of Portlaoise Prison, certified in writing the grounds for the detention of the applicant herein.

These grounds were that he held the applicant in custody in Portlaoise Prison pursuant to two orders for delivery at the point of departure of the Dublin Metropolitan District Court dated 8 January 1989 together with an order of transfer of the Minister for Justice dated 8 January 1990.

On 27 January 1990, the High Court made an order directing that the applicant do on or before 6 July deliver a statement of claim and file and deliver an affidavit or affidavits grounding the points of the applicant’s claim and that the defendant do deliver a defence within one week of the date of such delivery as aforesaid and the matter was adjourned for further hearing to Tuesday, 24 July 1990.

In accordance with the terms of the said order, a statement of claim was delivered on behalf of the applicant and a defence thereto was delivered on behalf of the respondents and defendant.

In his statement of claim the applicant claims his release pursuant to:

1. S. 50 of the Extradition Acts 1965 to 1987 on the grounds that the offences mentioned in the warrants are political offences;

2. S. 50 of the said Acts on the grounds that the offences mentioned in the warrants are offences connected with political offences;

3. S. 50 of the said Acts on the grounds that the offences in the warrants do not correspond with any offences under the law of this State or if they have the appearance of correspondence do not in fact so correspond;

4. S. 50(bbb) of the said Acts on the grounds that, having regard to the lapse of time since the commission of the offences and all the circumstances, it would be unjust, oppressive and invidious to deliver up the plaintiff herein;

5. Article 40 of the Constitution on the grounds that there is no or insufficient evidence to ground the request for extradition and/or for issuing the warrants and/or for the decision of the Attorney General that there was an intention to prosecute founded on sufficient evidence and/or for the implied or express provisions of the Extradition Acts whereby rendition may only be granted where there is sufficient evidence to warrant same;

6. Article 40 of the Constitution on the grounds that the rendition of the plaintiff is sought to a jurisdiction where, having regard to all the relevant circumstances, there is a substantial risk or danger that the plaintiff will be exposed to acts and procedures in and incidental to his trial which would fail to guarantee him a fair trial;

7. Article 40 of the Constitution on the grounds that the practice of prosecuting and the accepted modes of proof in respect of conspiracy charges in the United Kingdom fall short of an acceptable standard as to certainty and clarity required in a fair and proper criminal trial;

8. Article 40 of the Constitution on the grounds that the prosecuting authorities in the United Kingdom have been guilty of unconscionable delay in seeking a warrant and requesting the plaintiff’s rendition and that the plaintiff has been prejudiced thereby;

9. Article 40 of the Constitution on the grounds that there is a substantial risk that the plaintiff will before and during his trial, be exposed to prejudicial publicity on newspaper and television, whereby he will be deprived of his right to trial by an unprejudiced jury or such right will be materially curtailed;

10. Article 40 of the Constitution on the grounds that the plaintiff’s rendition is sought to the jurisdiction of the courts of England and Wales in which of recent times and particularly in relation to explosives charges against persons suspected of being members of the Provisional IRA a significant number of persons have been convicted and sentenced on the basis of incorrect, misleading, inadequate or insufficiently controlled forensic evidence. There is a significant risk in the instant case, of such incorrect, misleading, inadequate and/or insufficiently controlled forensic evidence being tendered against the plaintiff and of the same being acted upon to the plaintiff’s detriment.

A defence was delivered on behalf of the respondents in which they deny or do not admit the facts set forth in the applicant’s statement of claim and then further plead that the defendants will rely in particular on the Extradition (European Convention on the Suppression of Terrorism) Act 1987 and allege that:

(a) the offences specified in warrants are offences to which s. 3 applies.

(b) that they are offences to which s. 4 applies and that they should not be regarded as political offences by reason of the matters mentioned in s. 4(1)(a) of the said Extradition Act 1987.

With regard to that portion of the applicant’s claim that involves the potential abuse of his constitutional rights if he were returned to England in accordance with the orders made by the Dublin Metropolitan District Court, I consider it appropriate at this stage to refer to the statement of the Chief Justice made in the course of his judgment in the case of Finucane v Governor of Portlaoise Prison [1990] ILRM 505 where he stated:

The duty of the court ‘as far as practicable to defend’ the constitutional rights of the applicant may not necessarily be best served by any rigid formula or standard of proof.

Before dealing with this aspect of the applicant’s case, I consider it desirable to deal with the application made pursuant to the provisions of Article 50 of the Extradition Act 1965.

The relevant provisions of this Article are:

(1) A person arrested under this Part shall be released if the High Court or the minister so directs in accordance with this section.

(2) A direction under this section may be given by the High Court where the court is of opinion that

(a) the offence to which the warrant relates is

(i) a political offence or an offence connected with a political offence, or

(c) 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.

(3) A direction of the court under this section may be given either on application made by or on behalf of the person concerned or on the question being referred to the court by the minister.

The question as to what constitutes ‘a political offence’ or ‘an offence connected with a political offence’ has been considered by this Court and the Supreme Court in a large number of cases. The European Convention on the Suppression of Terrorism was signed subject to ratification on behalf of Ireland on 24 February 1986 by the then Minister for Justice, Mr Alan Dukes, TD.

On 18 February 1989, the then Minister for Foreign Affairs, Mr Brian Lenihan, TD signed Ireland’s instrument of ratification of the European Convention on the Suppression of Terrorism.

On 21 January 1987, the Oireachtas caused to be enacted the Extradition (European Convention on the Suppression of Terrorism) Act 1987.

The preamble to the Act provided that it was:

an Act to give effect to the European Convention on the Suppression of Terrorism, done at Strasbourg on 27 January 1987 and to amend and extend the Extradition Act 1965.

This Act came into operation on 1 December 1987.

S. 3 of the said Act of 1987 provided that:

(1) For the purposes mentioned in subs. (2)

(a) No offence to which this section applies and of which a person is accused or has been convicted outside the State shall be regarded as a political offence or as an offence connected with a political offence, and

(b) No proceedings outside the State in respect of an offence to which this section applies shall be regarded as a criminal matter of a political character.

Subs. (2) provides, inter alia, that the purposes referred to in subs. (1) are:

(b) The purposes of Part III of the Act of 1965 in relation to any warrant for the arrest of a person issued after the commencement of this Act in a place in relation to which that Part applies.

S. 3(3)(a) of the Act of 1987 provides, inter alia, that this section applies to:

(v) an offence involving the use of an explosive or an automatic firearm, if such use endangers persons, and

(vi) any offence of attempting to commit any of the foregoing offences.

S. 4(1)(a) of the Act of 1987 provides that:

For the purposes mentioned in paras. (a) and (b) of s. 3(2), an offence to which this section applies and of which a person is accused or has been convicted outside the State shall not be regarded as a political offence or as an offence connected with a political offence if the court or the minister, as the case may be, having taken into due consideration any particularly serious aspects of the offence, including:

(1) that it created a collective danger to the life, physical integrity or liberty of persons, or

(2) that it affected persons foreign to the motives behind it, or

(3) that cruel or vicious means were used in the commission of the offence, is of opinion that the offence cannot properly be regarded as a political offence or as an offence connected with a political offence.

(b) For the purposes mentioned in s. 3(2)(c) proceedings outside the State in respect of an offence to which this section applies shall not be regarded as a criminal matter of a political nature.

S. 4(2)(a) of the said Act of 1987 provides that:

This section applies to:

any serious offence (other than an offence to which s. 3 applies) of which a person is accused or has been convicted outside the State

(a) involving an act of violence against the life, physical integrity or liberty of a person, or

(2) involving an act against property if the act created a collective danger for persons, and

(3) any offence of attempting to commit any of the foregoing offences.

(b) references in this section to an offence include references to participation as an accomplice of a person who commits the offence.

By virtue of the provisions of the Extradition (Amendment) Act 1987, Part III of the Extradition Act 1965 was amended as follows:

(a) By the insertion of the following section after s. 44:

44A

(1) A warrant for the arrest of a person accused of an offence under the law of a place in relation to which this Part applies shall not be endorsed for execution under this Part if the Attorney General so directs.

(2) A direction of the Attorney General under this section may be revoked by the Attorney General at any time if he becomes of the opinion referred to in s. 44B.

S. 44B provides that:

A direction of the Attorney General under s. 44A shall be given unless the Attorney General having considered such information as he deems appropriate, is of opinion that:

(a) there is a clear intention to prosecute or, as the case may be, to continue the prosecution of the person named or described in the warrant concerned for the offence specified therein in a place in relation to which this part applies, and

(b) such intention is founded on the existence of sufficient evidence.

44C In any proceedings in which, but for this section, proof would be required of the fact that, in relation to a warrant referred to in s. 44A a direction of the Attorney General under that section was not given, it shall be presumed, until the contrary is proved that such a direction was, in accordance with that section and s. 44B not given and is not required to be given in relation to the warrant.

Part III of the said Act of 1965 was further amended by the insertion of the following paragraph in s. 50(2) after para. (bb) (inserted by the Extradition ):

(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 or described therein for that offence and other exceptional circumstances, it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under s. 47.

The Oireachtas has enacted that no offence shall be regarded as a political offence or an offence connected with a political offence if it is:

an offence involving the use of an explosive or an automatic firearm, if such use endangers persons, (Vide s. 3(3)(a)(v) of the Act of 1987) or

an offence of attempting to commit any such offence (Vide s. 3(3)(a)(vi) of the Act of 1987).

The Oireachtas has further enacted that any serious offence:

(1) involving an act of violence against the life, physical integrity or liberty of a person, or

(2) involving an act against property if the act created a collective danger for persons and

(3) any offence of attempting to commit any of the foregoing offences.

shall not be regarded as a political offence or an offence connected with a political offence, if the court is of the opinion that the offence cannot properly be regarded as a political offence or as an offence connected with a political offence having taken into due consideration any particularly serious aspects of the offence, including:

(1) that it created a collective danger to the life, physical integrity or liberty of persons,

(2) that it affected persons foreign to the motives behind it, or

(3) that cruel or vicious means were used in the commission of the offence. (Vide s. 4 of the Act of 1987).

Consequently, the first issue for determination by me is whether or not the offences alleged against the applicant are offences to which these provisions or either of them apply because if they do they cannot be regarded as political offences.

The first offence alleged against the applicant is an offence contrary to s. 3(1)(a) of the Explosive Substances Act 1883 and s. 7 of the Criminal .

As appears from Mr Nicholls’ affidavit, s. 3(1) of the Explosive Substances Act 1883 as amended by s. 7 of the Criminal Jurisdiction Act 1975 provides that:

A person who in the United Kingdom or a dependency or (being a citizen of the United Kingdom and colonies) elsewhere unlawfully and maliciously

(a) does any act with intent to cause, or conspires to cause, by an explosive substance an explosion of a nature likely to endanger life or cause serious injury to property, whether in the United Kingdom or the Republic of Ireland; or

(b) makes or has in his possession or under his control an explosive substance with intent by means thereof to endanger life, or cause serious injury to property, whether in the United Kingdom or the Republic of Ireland, or to enable any other persons so to do, shall, whether any explosion does or does not take place, and whether any injury to person or property is actually caused or not, be guilty of an offence and on conviction on indictment shall be liable to imprisonment for life and the explosive substances shall be forfeited.

It is convenient at this stage to refer to s. 4 of the Criminal Law (Jurisdiction) Act 1976 (No. 14 of 1976) which provides that:

The Explosive Substances Act 1883 is hereby amended by the substitution for ss. 2 and 3 of the following sections:

2. A person who in the State or (being an Irish citizen) outside the State unlawfully and maliciously causes by an explosive substance an explosion of a nature likely to endanger life, or cause serious injury to property, shall whether any injury to person or property is actually caused or not, be guilty of an offence and on conviction on indictment shall be liable to punishment for life.

Subs. 3 provides that:

A person who in the State or (being an Irish citizen) outside the State, unlawfully and maliciously

(a) does any act with intent to cause, or conspires to cause, by an explosive substance an explosion of a nature likely to endanger life, or cause serious injury to property, whether in the State or elsewhere, or

(b) makes or has in his possession or under his control an explosive substance with intent by means thereof to endanger life, or cause serious injury to property, whether in the State or elsewhere, or to enable any other person so to do, shall, whether any explosion does or does not take place, and whether any injury to person or property is actually caused or not, be guilty of an offence and on conviction on indictment, shall be liable to imprisonment for a term not exceeding 20 years, and the explosive substances shall be forfeited.

Counsel on behalf of the applicant has submitted that the offences alleged against him namely:

(a) unlawful and malicious conspiracy to cause by an explosive substance an explosion of a nature likely to endanger life or cause serious injury to property in the United Kingdom and

(b) the unlawful and malicious possession or control of an explosive substance with intent by means thereof to endanger life or cause serious injury to property in the United Kingdom or to enable any other persons so to do are not offences to which the provisions of s. 3(3)(a)(v) of the Act of 1987 apply.

Counsel on behalf of the respondent has submitted that having regard to the preamble of the Act of 1987 which stated that the Act was to give effect to the European Convention on the Suppression of Terrorism signed at Strasbourg on 27 January 1988 in interpreting the Act and endeavouring to ascertain the intention of the legislature, I should have regard to the provisions of the said convention.

Article 1(e) of the said convention provides that:

For the purpose of extradition between contracting parties, none of the following offences shall be regarded as a political offence or as an offence connected with a political offence or an offence inspired by political motives. An offence involving the use of a bomb, grenade, rocket, automatic firearm or letter or parcel bomb if this use endangers persons.

Article 2 of the said convention provides that:

For the purposes of extradition between contracting parties, a contracting State may decide not to regard as a political offence or as an offence inspired by political motives a serious offence involving an act of violence other than one covered by Article 1 against life, physical integrity or liberty of a person.

The same shall apply to a serious offence involving an act against property, other than one covered by Article 1 if the act created a collective danger for persons.

Article 13 of the convention provides that:

1. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance or approval, declare that it reserves the right to refuse extradition in respect of any offence mentioned in Article 1 which it considers to be a political offence, an offence connected with a political offence or an offence inspired by political motives, provided that it undertakes to take into due consideration, when evaluating the character of the offence, any particularly serious aspects of the offence including:

(a) that it created a collective danger to the life, physical integrity or liberty of persons; or

(b) that it affected persons foreign to the motives behind it; or

These factors are referred to in s. 4(1)(a) of the Act of 1987.

In the course of his judgment in Finucane’s case, Walsh J stated:

The political exemption provision is still the law in this State and as a principle has remained unrepealed. In fact, it has been reiterated in subsequent legislation concerning extradition although abated in its application in certain cases as set out in the Extradition Act No. 1 of 1987 to give effect to the European Convention on the Suppression of Terrorism.

The effect of the European Convention on the Suppression of Terrorism as adopted by our legislation has been, to put it in very general terms, to withdraw from the political exemption offences involving the use of explosives or automatic firearms (which by their nature tend to be indiscriminate in their effects) and any attempts at the same, and offences involving kidnapping, the taking of hostages or serious false imprisonment. It also withdraws the political exemption in respect of other matters which are not immediately relevant to the present case. S. 4 also enables a court to take into account any particularly serious aspects of an offence including the collective danger to the life, physical integrity or liberty of persons or affected persons foreign to the motives behind it, or that cruel or vicious means were used in the commission of the offence. The references to ‘collective’, ‘persons foreign to the motives’ and ‘cruel and vicious means’ are recognised elements of terrorism. The court is empowered to form the opinion by reasons of these elements that the offence could not properly be regarded as a political offence or an offence connected with a political offence.

My object in referring to this recent legislation is to indicate that a distinction has been drawn between what is strictly regarded as terrorism and what is regarded as politically motivated offences or offences connected with political offences. Putting it briefly, political offences are defined as offences usually, though not necessarily, consisting of violent crime directed at securing a change in the political order. The effect of the adoption of the Council of Europe convention was to enable derogation from what the Council of Europe in the report accompanying the convention called ‘the traditional principle according to which the refusal to extradite is obligatory in political matters’ in respect of certain acts of violence. It is thus clear that the use of violence does not itself take an act out of the political exemption but particular forms of violence such as those already indicated will be grounds for abating the political exemption.

The following principles emerge from the judgment of Walsh J in Finucane’s case:

1. Nobody may be extradited from this State in respect of any offence unless it can be done within the terms of the Extradition Act 1965, the Extradition Act No. 1 of 1987 and the Extradition Act No. 25 of 1987.

2. The political exemption provision is still the law in this State and as a principle has remained unrepealed.

3. The political exemption provision has been abated in its application in certain cases as set out in the Extradition Act No. 1 of 1987 to give effect to the European Convention on the Suppression of Terrorism.

4. The court is empowered to form the opinion that an alleged offence cannot properly be regarded as a political offence or as an offence connected with a political offence once it has given due consideration to any particularly serious aspects of the offence including the matters set forth in s. 4(1)(a) of the Act of 1987, including the fact that it created a collective danger to the life, physical integrity or liberty of persons, the fact that it affected persons foreign to the motives behind it or that cruel or vicious means were used in the commission of the offence.

5. These factors are in the words of Walsh J ‘recognised elements of terrorism’.

6. A distinction has been drawn between what is strictly regarded as terrorism and what are regarded as politically motivated offences or offences connected with political offences.

7. Political offences are defined as offences usually, though not necessarily, consisting of violent crime directed at securing a change in the political order.

8. The use of violence does not in itself take an act out of the political exemption but particular forms of violence such as those already indicated will be grounds for abating the political exemption. The essential ingredients are instilling terror in the public or a section of it for the purpose of intimidating such persons and the indiscriminate nature of attacks which put in jeopardy the lives or safety of civilian or other persons unconnected with the objectives of the attack.

9. The nature and objective of the particular activity must be the test in each case and must be considered at the time when they have to be considered.

The nature and object of the particular activity alleged against the applicant

The offences against the applicant are set out in the charges already referred to herein.

In his affidavit sworn on 2 April 1990, the applicant avers at para. 12 thereof that:

I believe that the offences alleged against me were committed by members of the Provisional IRA within the United Kingdom as part of its long-standing military campaign against the Crown. Such facts are peculiarly within the knowledge of the prosecuting authorities of the United Kingdom insofar as at least three of the named conspirators are in jail in England for the said offences. Moreover, I believe it was part of the prosecution case against them that they were active members of the Provisional IRA, which is a proscribed organisation under English law, pursuing a campaign within the United Kingdom. Most of the matters are also public knowledge since the trial of the aforementioned persons. The offences alleged against me were an integral and necessary part of the pursuit by the Provisional IRA of the military campaign against the Crown to end British rule in the Six Counties of Ireland.

And he further averred at para. 13 of the affidavit that ‘there is no evidence or matter capable of being evidence against me on either warrant and my arrest is not sought in good faith and the warrants are not founded on any or any sufficient evidence’.

In his affidavit sworn on 11 May 1987 Detective Sergeant Ian MacLeod, a member of the Metropolitan Police in New Scotland Yard, stated inter alia, that:

1. In 1981 he was a member of the team conducting the investigation of the matters for which the applicant’s extradition from Ireland is sought on foot of the warrants issued at Bow Street Magistrates’ Court by one David Hopkin, that from his knowledge of the circumstances of the matter he believed there was a conspiracy to place bombs which created a collective danger to the lives and physical integrity of persons, that it affected civilians and generally persons foreign to any political motives behind it and that cruel and vicious means were used.

In his said affidavit, he briefly outlined the circumstances of the case. He averred that in October 1983 a cache of delayed action incendiary bombs, commercial explosives and the equipment commonly used in the construction of improvised explosive devices was discovered buried in woodland near Pangbourne in Oxfordshire and that forensic evidence linked items found in that cache with

(a) a bomb concealed in a van which exploded in Ebury Bridge Road, London on Saturday, 10 October 1981 at 12.08 pm discharging a large quantity of six-inch nails and pieces of the vehicle into the immediate vicinity of the van. A married woman aged 59 and a young man aged 18, who were walking past the van at the time of the explosion were killed. In addition, a further 10 civilian passers-by whose ages ranged from 2 to 85 years suffered lacerations, abrasions, and bruising of varying degrees of severity. In addition, 24 Guardsmen who were passing in an Army bus and its civilian driver suffered injuries ranging from shock to multiple injuries to chest, lungs, shoulders, arms and skull.

(b) a bomb which exploded under the private car of Sir Stuart Pringle, the Commdt General of the Royal Marines, outside his home in a residential street in South London on Saturday, 17 October 1981 at 11.34 am. The car would, on occasions, be used by Sir Stuart Pringle’s wife, Lady Pringle. The explosion caused severe injuries to Sir Stuart Pringle which necessitated the amputation of his right leg below the knee. The force of the explosion scattered parts of the car over a wide area, and would have caused severe injuries to persons unfortunate enough to be in the vicinity. In the event, no other persons were injured.

(c) a bomb contained in two packages left in a toilet in a Wimpy Bar in Oxford Street, London on Monday, 26 October 1981, which exploded shortly after 3.30 pm. Immediately prior to the bomb’s discovery, the restaurant area of the Wimpy Bar was crowded with members of the public, including children. The Wimpy Bar and the area immediately surrounding it were cleared of members of the public prior to the explosion. A civilian bomb disposal expert employed by the Metropolitan Police, who was attempting to defuse the bomb was killed when it exploded.

(d) a bomb which exploded at the rear of a private residential building in South London, in which the then Attorney General rented a flat, on Friday, 13 November 1981 at 11.20 pm. The explosion caused substantial damage to the flat occupied by the Attorney General. The Attorney General was not in the flat. Had he or anyone else been in the rear rooms of the flat at the time they would almost certainly have been killed.

(e) a bomb was discovered in the public toilet area on the third floor of a large department store in Oxford Street on Monday, 26 October 1981 at 3.40 pm. Immediately prior to the discovery of the bomb the department store was crowded with shoppers. When the bomb was discovered the store was evacuated and members of the public were cleared from its immediate vicinity. If the bomb had exploded it would have caused death or serious injury to any shoppers or shop staff in the immediate vicinity.

The said Sergeant MacLeod was cross-examined by counsel on behalf of the applicant and when asked what evidence there was to connect the applicant with the said cache, he replied that such evidence consisted of 13 separate fingerprints of the applicant on various items found therein including a bag in which explosives were contained, tape, cassettes and electrical devices.

This is the only evidence available to me with regard to the nature and object of the particular activity alleged against the applicant.

From this is appears that:

1. The offences alleged against the applicant were committed by members of the Provisional IRA within the United Kingdom as part of its long standing military campaign against the Crown and were an integral and necessary part of the pursuit by the Provisional IRA of the military campaign against the Crown to end British Rule in the Six Counties of Ireland (vide affidavit of the applicant).

2. It is alleged that portion of the explosive substances referred to in the charges alleged against the applicant were used in the five incidents referred to in the affidavit of Det Sgt MacLeod.

3. The use of explosive substances in the circumstances and places referred to in Det Sgt MacLeod’s affidavit

(1) created a collective danger to the life and physical integrity of persons;

(2) affected and was likely to affect persons, such as shoppers, passers-by and ordinary citizens foreign to the motives behind it and

(3) constituted cruel and vicious means, the discharge of a large quantity of six-inch nails being particularly cruel and vicious.

I have given due consideration to these matters and being satisfied that:

(a) the offences alleged against the applicant are serious offences;

(b) they involved acts of violence against the life and physical integrity of persons, and

and am of opinion that the offences cannot properly be regarded as political offences or offences connected with a political offence.

I have formed this opinion having duly considered the matters referred to in s. 4 of the Extradition Act No. 1 of 1987 but this section does not apply to offences to which s. 3 of the said Act applies.

Before considering the question whether the offences alleged against the applicant are offences to which s. 3 of the Act of 1987 applies, there is one matter with which I have to deal.

In his statement of claim, the applicant alleges that the offences mentioned in the warrants are political offences and/or offences connected with political offences.

The Extradition Act 1965 has not been repealed.

In his judgment in McGlinchey v Wren [1982] IR 154 the then Chief Justice stated at page 160 that:

Under the Act of 1965, the onus of establishing that the offence in question is either a political offence or one connected with a political offence, as a reason for not handing over a person sought on a warrant properly endorsed under Part III is upon the person who seeks asylum in our jurisdiction.

He also stated at p. 159 that:

Whether a contrary conclusion could be reached in different circumstances would depend on the particular circumstances and on whether these particular circumstances showed that the person charged was at the relevant time engaged either directly or indirectly, in what reasonable, civilised people would regard as political activity.

He further stated at p. 160 that:

The excusing per se of murder and of offences involving violence, and the infliction of human suffering by or at the behest of self-ordained arbiters, are the very antithesis of the ordinances of christianity and civilisation and of the basic requirements of political activity.

These statements constituted the ratio decidendi in the case and in effect decided that indiscriminate violence or terrorism cannot be regarded as political activity. They have not been affected by the decision in Finucane’s case.

In the course of his judgment in Finucane’s case, Walsh J stated that:

The decision of this Court in McGlinchey v Wren which acknowledged that the political exemption was expressly disclaimed by the appellant, touched upon the distinction between an act of terrorism and a political offence. In that judgment, the court did not seek to attach any particular definition to the expression ‘political offence’ or a particular definition of ‘terrorism’. One must therefore assume that the terms were used in their ordinary accepted meaning. It is furthermore to be noted that the case dealt solely with the particular facts of the case which disclosed a totally indiscriminate type of attack with a machine-gun on a private dwellinghouse when a civilian totally unconnected with any political objectives was killed. As the evidence stood, this offence was correctly characterised as terrorism.

For the reasons set out by me when dealing with the nature and object of the acts alleged against the applicant in the course of this judgment, I am satisfied that, independent of the provisions of the Extradition Act of 1987, the offences set forth in the two warrants therein cannot be regarded as political offences or offences connected with a political offence as they contemplate and involve indiscriminate violence and can be correctly characterised as terrorism.

S. 3 of the Extradition Act 1987 specifies certain offences, five in number, which shall not be regarded as political offences or offences connected with a political offence.

The offence relied on by the respondent in this case is that set out at ss. (3)(a)(v) of the said Act namely:

an offence, involving the use of an explosive or an automatic firearm, if such use endangers persons.

S. 3(4)(c) of the said Act provides that:

‘an offence involving’ in relation to the use of an explosive or an automatic firearm includes any offence committed by means of the explosive or firearm.

The offences alleged against the applicant in this case have already been set out in the earlier portion of this judgment and are:

(1) Conspiracy to cause by an explosive substance an explosion of a nature likely to endanger life or cause serious injury to property and

(2) possession or control of explosive substances with intent by means thereof to endanger life or cause serious injury to property or to enable any other person so to do.

I am satisfied that these offences cannot be regarded as offences to which s. 3 of the Extradition Act No. 1 of 1987 applies.

Though the Act was expressed in this preamble as being an Act ‘to give effect to the European Convention on the Suppression of Terrorism’ the legislature did not avail of the option given to each contracting state by Article 2 of deciding not to regard as a political offence or as an offence connected with a political offence or an offence inspired by political motives a serious offence involving an act of violence, other than one covered by Article 1 against the life, physical integrity or liberty of a person or a serious offence involving an act against property other than one covered by Article 1 if the act created a collective danger for persons.

The offences alleged against the applicant clearly come within the type of offences envisaged by Article 2 of the convention and it was open to the legislature to provide that they should not be regarded as political offences or offences connected with a political offence. They chose not to do so and limited its designation of offences which should not be so regarded to those set forth in Article 1 of the convention and by virtue of the provisions of s. 4 of the Extradition Act No. 1 of 1987 placed a responsibility on the court of deciding whether any serious offence involving an act of violence against the life, physical integrity or liberty of a person or involving an act against property if the act created a collective danger for persons should be regarded as a political offence or an offence connected with a political offence.

The offences set forth in ss. (3)(a)(v) of the 1987 Act involve the use of explosives if such use endangers persons. It does not apply if such use endangers only one person or property.

The offences with which the applicant is charged do. For this reason I am satisfied that these offences do not come with the ambit of s. 3(3)(a)(v) of the Extradition Act No. 1 of 1987.

The applicant further submits that by reason of the lapse of time since the commission of the offences specified in the warrants and other exceptional circumstances, it would, having regard to all the circumstances be unjust, oppressive or invidious to deliver him up under s. 47 of the Extradition Act 1965.

Over seven years have elapsed since the date of the alleged commission of the offences with which the applicant is charged and there are circumstances in which it could be held that it would be unjust, oppressive and invidious to deliver him up under s. 47 on the grounds that such delay was an interference with his right to a trial within a reasonable time. In my view such circumstances do not apply in this case.

It appears from his affidavit sworn on 14 June 1990 that:

(1) From 13 May 1981, he was detained in Portlaoise Prison.

(2) In July 1981, he was released on bail from the said prison.

(3) In February 1982, he broke bail and went to the United States of America via France and Canada.

(4) On 5 February 1982, he was arrested when he attempted to enter the United States of America.

(5) On 3 March 1983, he was deported from the United States of America back to this State.

(6) Since that date he has been in continuing custody in Portlaoise Prison serving a sentence as stated by his counsel, of eight years imposed by the Special Criminal Court.

When he was due for release the application for the warrants the subject matter of these proceedings was made.

It is submitted by counsel on his behalf that the offences now alleged against him could have been the subject of a prosecution in this country pursuant to the provisions of the Criminal Law (Jurisdiction) Act 1976.

As I stated in my judgment in Finucane’s case, this is not a factor to which I can have regard as it is not within the province of a court to decide where any particular proceedings under the said Act should be brought and I am satisfied that the delay in this case was due to the fact that the applicant was facing charges in this country, was granted bail in respect thereof, absconded from this country, attempted to enter the United States of America, was arrested there and detained until he was deported to this country in March 1983 and that since that date he has been serving in Portlaoise Prison a sentence imposed by the Special Criminal Court.

The delay was due to his own actions and I am satisfied that it would not be unjust, or oppressive to deliver him up under s. 47 of the Extradition Act 1965 on that ground.

Counsel for the applicant has submitted that the applicant should be released because the offences alleged against the applicant do not correspond to offences under the law of the State.

As stated by Ó Dálaigh CJ in the course of his judgment in State (Furlong) v Kelly [1971] IR 132 at p. 140:

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 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.

In the course of his judgment in Wyatt v McLoughlin [1974] IR 378, Walsh J stated that:

The function of the Irish court was to discover from the facts alleged whether there was a corresponding Irish offence and to ignore offence names found in English law.

He further stated at p. 397 of the report that:

What the Court of the requested country is concerned with is to enquire as to whether the acts alleged constitute an offence under the law of the requested country.

He further stated at p. 397 that:

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 underlining the offences 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.

He had earlier stated at p. 395 of the report that:

This Court and any other court in proceedings such as these is not at all concerned with the construction of English law.

Consequently, it seems to me that the only issue which I have to determine on this aspect of the case is whether the acts constituting the particular offences for which extradition is sought are acts which, if committed within this jurisdiction, would constitute a criminal offence.

Counsel on behalf of the applicant submitted that because a non-national who was not present within the jurisdiction of the requesting country can be convicted of the offences in the requesting country this fact distinguishes the offences alleged against the applicant from corresponding offences in this State.

A distinction must be drawn between the acts necessary to constitute the offence and the evidence necessary to prove the offence.

In my view, having regard to the dicta quoted herein, evidence necessary to constitute the offence in the requesting country is not a factor to which I should have regard.

I am satisfied that:

(1) The acts alleged against the applicant in the two warrants are offences contrary to the law of the requesting country, the United Kingdom.

(2) The acts alleged against the accused in the first warrant dated 24 April 1989 would if committed within the jurisdiction of this State constitute an offence pursuant to the provisions of the Explosive Substances Act 1883 as amended by s. 4(3)(a) of the Criminal Law (Jurisdiction) Act 1976 and the acts alleged against the applicant in the second warrant would if committed within the State constitute an offence contrary to the provisions of the Explosive Substances Act 1883 as amended by s. 4(3)(b) of the Criminal Law (Jurisdiction) Act 1976.

Consequently, I refuse to direct the release of the applicant on this ground also.

I have set forth in detail the grounds upon which the applicant seeks to be released pursuant to the provisions of Article 40 of the Constitution.

Briefly stated they are:

(1) There is no or insufficient evidence to ground the request for extradition.

(2) If extradited, there is a substantial risk or danger that the plaintiff will be exposed to acts and procedures in and incidental to his trial which would fail to guarantee him a fair trial.

(3) The practice of prosecuting and the accepted modes of proof in respect of conspiracy charges in the United Kingdom fall short of an acceptable standard as to the certainty and clarity required in a fair and proper criminal trial.

(4) The prosecuting authorities in the United Kingdom have been guilty of unconscionable delay in seeking a warrant and requesting the applicant’s rendition and that the applicant has been prejudiced thereby.

(5) There is a substantial risk that the plaintiff will before and during his trial be exposed to prejudicial publicity in newspaper and television, whereby he will be deprived of his right to trial by an unprejudiced jury or such right will be materially curtailed.

(6) There is a significant risk of incorrect, misleading, inadequate and/or insufficiently controlled forensic evidence being tendered against the applicant and of the same being acted upon to the applicant’s detriment.

I have considered the matters therein contained and have had real regard for my constitutional obligation to protect and vindicate, as far as practicable, the constitutional rights of the applicant to a fair trial conducted in accordance with fair procedures.

In so doing, I have applied the standards suggested by the Chief Justice in the course of his judgment in Finucane’s case already referred to.

With regard to the grounds set forth at (1) above, I am satisfied that having regard to the terms of the affidavit of Det Sgt MacLeod and his sworn testimony in this Court, that this ground has not been substantiated.

With regard to ground No. (4), I am satisfied that this ground has not been substantiated for the reasons already set forth by me dealing with the question of the delay in seeking the warrants.

With regard to grounds (2) and (3), I have had regard to the affidavits filed on behalf of the applicant, the incidents therein referred to and the affidavit of Mr Nicholls dealing with the admissibility of evidence in conspiracy cases and I am not satisfied that there is a substantial risk or danger that the applicant will be exposed to acts and procedures in and incidental to his trial which would fail to guarantee him a fair trial or that the accepted modes of proof in respect of conspiracy charges in the United Kingdom fall short of an acceptable standard as to the certainty and clarity required in a fair and proper criminal trial.

With regard to ground No. (5), I accept that it is likely that during the applicant’s trial he will be exposed to a certain amount of publicity but this is inevitable having regard to the nature of the offences alleged against the applicant and the acts alleged to have been perpetrated in pursuance of the alleged conspiracy.

It will be the function of the trial judge to ensure that the jury are not prejudiced thereby and are obliged to decide the case on the basis of the evidence adduced in court and not have regard to any publicity.

With regard to (6) which deals with the forensic evidence, it is true that there have been a number of cases in which such evidence has proved to be unreliable but that is not a ground for proceeding on the basis that all forensic evidence to be adduced in the future will be equally unreliable. The reliability or otherwise of such forensic evidence as is adduced by the prosecuting authorities can be challenged in court.

I am not satisfied that my intervention to protect the constitutional right of the applicant in this case is required and consequently I will refuse to direct his release pursuant to the provision of the Constitution or on any ground.

SUPREME COURT
FINLAY CJ

(Griffin, Hederman and O’Flaherty JJ concurring) delivered his judgment on 14 November 1990 saying: By two District Court orders made on 8 January 1990, pursuant to the provisions of the Extradition Act 1965, it was directed that the appellant herein be delivered into the custody of a member of the Metropolitan Police Force of England and Wales for conveyance to Bow Street Magistrates’ Court to answer

(a) A charge of conspiracy to cause an explosion, and

(b) A charge of having in his possession or under his control explosive substances with intent by means thereof to endanger life or cause serious injury to property.

These offences are respectively stated to be contrary to s. 3(1)(a) and s. 3(1)(b) of the Explosive Substances Act 1883 and s. 7 of the Criminal Jurisdiction Act 1975.

The appellant instituted proceedings by special summons seeking an order for his release pursuant to the Extradition Acts 1965 to 1987, and also sought an order for his release from custody, pursuant to Article 40 of the Constitution. These two separate proceedings were heard together in the High Court by Hamilton P who, on 30 July 1990, having delivered a reserved judgment, made an order refusing the relief sought, pursuant to the Extradition Acts 1965 to 1987, and holding that the return made to the order of habeas corpus was sufficient to justify the detention of the applicant under the orders for his detention and delivery.

The claims made by the appellant in the High Court were:

(a) For an order discharging the order for delivery, pursuant to s. 50 of the Act of 1965 on the grounds that the offences the subject matter of the warrants were political offences or offences connected with political offences.

(b) For an order pursuant to s. 50(bb) of the Act of 1965 as inserted by the Extradition (Amendment) Act 1987 declaring that by reason of the lapse of time since the commission of the offences and other exceptional circumstances it would be unjust, oppressive or invidious to deliver the appellant up under s. 47, and discharging the orders made accordingly.

(d) The grounds on which the applicant sought to be released, pursuant to the provisions of Article 40 of the Constitution, in the High Court were as follows:

(i) That there was no or insufficient evidence to ground the request for extradition.

(ii) That if extradited there was a substantial risk or danger that the plaintiff would be exposed to acts and procedures in and incidental to his trial which would fail to guarantee him a fair trial.

(iii) That the practice of prosecuting and the accepted modes of proof in respect of conspiracy charges in the United Kingdom fell short of an acceptable standard as to the certainty and clarity required in a fair and proper criminal trial.

(iv) That there was a substantial risk that the plaintiff would before and during his trial be exposed to prejudicial publicity in newspapers and television.

(v) That there was a significant risk of incorrect, misleading, inadequate and/or insufficiently controlled forensic evidence being tendered against the applicant.

With regard to the plaintiff’s claim for exemption from delivery on the grounds that the offences were political offences or connected with political offences, the learned President concluded:

(a) that the offences were serious offences,

(b) that they involved acts of violence against the life and physical integrity of persons, and

He accordingly ruled that having regard to the provisions of s. 4 of the Extradition (European Convention on the Suppression of Terrorism) Act 1987 (the No. 1 Act of 1987) they could not be considered to be political offences or offences connected with political offences. In so concluding, the learned trial judge ruled that the offences charged did not come within s. 3 of that Act on the grounds that the appropriate sub-clause, namely, ss. (3)(a)(v) spoke only of an offence involving the use of an explosive or an automatic firearm, if such endangered persons, and would not apply to an offence endangering a person only.

The appellant did not appeal against the finding made by the learned President that these offences, by virtue of the provisions of the No. 1 Act of 1987 could not be deemed to be political offences for the purpose of the Extradition Act 1965. The defendant entered a notice of cross-appeal, appealing against so much of the judgment of the learned President as held that the offences did not come within s. 3 of the No. 1 Act of 1987 but withdrew and did not proceed with that appeal.

It would appear from the judgment of the learned President that with regard to the precise question as to whether ss. (3)(a)(v) of the No. 1 Act of 1987 applied to an offence involving danger to the life of a single person, that s. 11 of the Interpretation Act 1937 would fall to be considered.

The appellant in this Court relied only on three grounds of appeal and they are:

(1) that the offences charged in the warrants did not correspond to any offence in Irish law;

(2) that in the events which have happened the delay in the presentation of the warrants since the date on which the crime is alleged to have been committed gives rise to a situation in which it would be unjust, oppressive or invidious to deliver up the appellant;

(3) that there are substantial risks that if the appellant is delivered to the custody of the police to appear before the Magistrates’ court in England he will, in relation to the charges against him, both as to the nature and procedures of his trial and to proceedings by the prosecuting authorities and police authorities in England, be subjected to unjust and unconstitutional prejudice and disadvantage from which he is entitled to protection by order of this Court.

Correspondence of offences
The acts alleged to constitute an offence in the first warrant are in the following terms:

Between 1 January 1981 and 27 October 1983, within the jurisdiction of the Central Criminal Court for England and Wales in the United Kingdom, unlawfully and maliciously conspired together with Thomas Alphonsus Quigley, Paul Kavanagh, Gilbert Thomas Patrick MacNamee and other persons to cause by an explosive substance an explosion of a nature likely to endanger life or cause serious injury to property in the United Kingdom, contrary to s. 3(1)(a) of the Explosive Substances Act 1883 and s. 7 of the Criminal Jurisdiction Act 1975.

The offence charged in the second warrant is in the following terms:

Between 1 January 1981 and 27 October 1983 within the jurisdiction of the Central Criminal Court for England and Wales in the United Kingdom, unlawfully and maliciously had in his possession or under his control explosive substances with intent by means thereof to endanger life or cause serious injury to property in the United Kingdom or to enable any other person so to do, contrary to s. 3(1)(b) of the Explosive Substances Act 1883 and s. 7 of the Criminal Jurisdiction Act 1975.

The corresponding Irish offences identified in the orders for delivery, and relied upon by the defendants before this Court, were offences contrary to s. 3 of the Explosive Substances Act 1883. The terms of s. 3 of the Explosive Substances Act 1883 were amended by substitution by virtue of the provisions of s. 4 of the Criminal Law (Jurisdiction) Act 1976, and now are as follows:

A person who in the State or (being an Irish citizen) outside the State unlawfully and maliciously

shall, whether any explosion does or does not take place, and whether any injury to person or property is actually caused or not, be guilty of an offence ….

S. 3 of the Explosive Substances Act 1883 has been amended by s. 7 of the English statute, the Criminal Jurisdiction Act 1975, so as now to read:

A person who in the United Kingdom or a dependancy or (being a citizen of the United Kingdom and Colonies) elsewhere unlawfully and maliciously

(a) does any act with intent to cause or conspires to cause by an explosive substance an explosion of a nature likely to endanger life or cause serious injury to property, whether in the United Kingdom or the Republic of Ireland, or

(b) makes or has in his possession or under his control an explosive substance with intent by means thereof to endanger life or cause serious injury to property, whether in the United Kingdom or the Republic of Ireland, or to enable any other person so to do

shall, whether any explosion does or does not take place, and whether any injury to person or property is actually caused or not, be guilty of an offence ….

A consideration of the terms of the warrants and of the English Act of 1975 and the Irish Act of 1976 make it clear that a corresponding offence would appear to exist. Counsel for the appellant, however, urges upon the court that there is no truly corresponding offence, by virtue of the following contention. An affidavit of English law filed on behalf of the defendant in these proceedings sets out two relevant principles of the common law applicable to criminal cases in England which are:

(a) That a person who conspires with another or others and is at that time situated outside the jurisdiction of the United Kingdom courts, is amenable to trial in those courts if one of his co-conspirators does an act within the United Kingdom in furtherance of the criminal conspiracy.

(b) Where two or more persons are engaged in a joint venture constituting a criminal offence, each is responsible for the acts of the others and accordingly any one of the persons so engaged is amenable to trial in the courts of the United Kingdom if one of his accomplices does an act in furtherance of the crime within the United Kingdom.

Thus, in the particular example, it is suggested as a matter of English law that a person outside the United Kingdom, who has never entered the United Kingdom, is capable of being in control of an explosive substance within the United Kingdom if his accomplice in the crime of possessing and controlling it for the purpose of causing an explosion is with the explosives in the United Kingdom.

It was submitted that neither of these two principles applies in Irish law, and that, therefore, notwithstanding the close similarity between the terms of the English and Irish statute creating the offences involved in this case, there is no corresponding offence to that contained in Irish law. I am satisfied that this submission must fail because it is a fundamental principle of the Irish common law, applicable to the criminal jurisdiction of the Irish courts, that a person entering into a conspiracy outside Ireland in furtherance of which an overt act is done in Ireland is amenable to trial in the courts of Ireland. I am equally satisfied that a person who, though located outside Ireland, does an act which either in itself or by reason of the conduct of an accomplice has the effect of completing a criminal offence in Ireland, is amenable to the Irish courts.

The broad reason underlying these two principles is, of course, that the criminal law must take cognisance of any crime committed within the State and must make persons, if charged before it, amenable for that crime, irrespective of where they were located at the time of its commission. It would be the very negation of an adequate criminal jurisdiction and an absurdity if a person joining in a criminal act being either a conspiracy or a joint venture could escape responsibility by reason of the fact that he has committed no overt act within the jurisdiction.

I have no doubt, therefore, that the learned district justice was correct in holding that the offences charged in the warrants corresponded to the offences inserted in the Explosive Substances Act 1883 by the Criminal Law (Jurisdiction) Act 1976.

Delay
The terms of s. 50(bbb) inserted into the Extradition Act 1965 by s. 2 of the Extradition (Amendment) Act 1987 are as follows:

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 s. 47.

The terms of s. 50 would accordingly read that if a court were satisfied of that fact then it should discharge the order to deliver a person up under the Act.

On the evidence before the High Court, it would appear that the offences alleged against the appellant in the warrants were discovered not earlier than October 1983, when a quantity of arms was found in England. From that time up to a date after the issue of the warrants in April 1989, the appellant was in custody in prison in Ireland, for a period on remand and subsequently as a convicted prisoner serving a sentence.

The case now being made is that while it is conceded that the extradition warrants could not practically have been executed until after the completion of the sentence being served by the appellant that he should have been informed of the intention of the authorities in the United Kingdom to charge him with these offences, and try him when he had completed his prison sentence here, and that he is prejudiced in his defence to those charges by not having been aware of the intention to charge him. With regard to this submission, certain factual matters are of importance. There is no averment in either of the affidavits filed by the appellant in the High Court in this case that he was unaware of the intention of the prosecuting authorities in the United Kingdom to charge him in connection with these explosives which were found in October 1983 until the issue of the warrants. There is no averment in the affidavits of any prejudice due to any lack of knowledge of an impending charge on the part of the appellant, nor to any fact or circumstance which could have been dealt with in relation to his defence to the charges, if he had known about the intention to prosecute him at an earlier time than the issue of the warrants. After the issue of the warrants the solicitor acting for the appellant wrote a lengthy letter to the Attorney General, which is part of the evidence in the High Court in this case, putting forward a number of submissions in order to secure a direction from the Attorney General preventing the delivery out of the jurisdiction of the appellant. This question of delay or prejudice arising from it is not amongst the matters mentioned in that letter.

It would appear that whilst a complaint of delay was undoubtedly made in the High Court that the question of the failure to notify an intention to prosecute was not raised in that court.

I am satisfied that it must, however, be examined in this Court, having regard to the importance of the rights of the appellant in this regard.

I am satisfied that there was no evidence before the High Court, and there is no evidence before this Court, upon which a court could come to the conclusion that a prejudice has occurred to the appellant in relation to his defence on these charges, by reason, as is suggested, of the failure to inform him at an earlier time of the intention to prosecute him. There is not even evidence before this Court that he was unaware of such an intention and that is not an assumption which it seems to me that the court could properly make. If the appellant wished to establish the general circumstances leading within the subsection to injustice or oppression, it would be necessary for him to adduce evidence and discharge a burden of proof in that regard. Having failed to do so, the court cannot make an order discharging the delivery order under this subsection.

Fair trial and procedures
The evidence in support of this contention brought before the High Court was firstly an affidavit from a Mr MacNamee who was present at the trial of his brother who was charged with explosives offences in the United Kingdom and who had come from Ireland. That affidavit deposed to the fact that the accused in that case upon giving evidence was cross-examined with regard to whether he was a nationalist, whether he was a member of the IRA, whether his relatives were, and whether he was a member of Sinn Féin. It would appear that these questions were asked without any objection being made on his behalf.

In addition, Ms Gareth Peirce, a solicitor practising in England, who had appeared for a number of different Irish persons charged with terrorist offences in England, swore an affidavit in which she dealt with a number of cases with which she was concerned.

Dealing with this evidence the learned President stated as follows:

In support of these grounds the applicant relies on his affidavits filed on 15 June 1990 and 27 June 1990, the exhibits referred to therein, the affidavit of Francis MacNamee sworn on 10 July 1990, and the affidavit of Gareth Peirce sworn on 17 July 1990. I have considered the matters therein contained and I have had real regard for my constitutional obligation to protect and vindicate as far as practicable the constitutional rights of the applicant to a fair trial conducted in accordance with fair procedures. In so doing, I have applied the standards suggested by the Chief Justice in the course of his judgment in Finucane’s case, already referred to.

The learned President then dealt separately with each of the matters which had been submitted to him, and concluded his judgment with the following words:

Particular emphasis was laid by counsel in this Court on the affidavit of Ms Peirce in which she gave short details of a total number of nine cases, in seven of which she represented the defendants. Of those nine cases, five of the accused were acquitted, either at the stage of committal or by the withdrawing of charges, or by the verdict of a jury. Details of the other cases included cases which have become notorious in relation to the quashing of convictions obtained through forensic evidence which appears to have been wholly unreliable.

Having carefully considered these cases and the information contained in the affidavit concerning them, they do not, in my view, establish a risk that the plaintiff will be tried or prosecuted or that investigations will be conducted in a manner which would be inconsistent with the reasonable standards of fair trial required by our Constitution.

The learned President reached the same conclusion in his judgment, on the facts as he found them, and I have no doubt that it was an inference he was entitled to draw and that it was the correct one, and that accordingly it cannot be disturbed by this Court on this appeal.

I would accordingly dismiss this appeal.

McCARTHY J:

The argument for the appellant is under three heads:

(1) that there is no corresponding offence as required by s. 50 of the Act of 1965.

(2) that there has been such delay as to make rendition invidious within the meaning of s. 50(2)(bbb).

(3) that there is an apparent risk that if the appellant is extradited to England his trial will not conform with the requirements of the Constitution.

I agree with the Chief Justice that all of these grounds of appeal fail, and I do not wish to add anything to the reasons he has stated in respect of the first two grounds.

The ‘risk’ ground
Where an Act of the Oireachtas authorises the making of an order in certain stated circumstances, it does not necessarily follow that the appropriate order will be made; if making the order would infringe a constitutional right, then the order will not be made (See the judgment of Henchy J in McMahon v Leahy [1984] IR 525 at 541). The making of an extradition arrangement is a political decision made by the government of the day in accordance with the relevant Acts of the Oireachtas or, as in the instance of Part III of the Act of 1965, made by an Act of the Oireachtas itself (See the judgments of McCarthy J in Russell v Fanning [1988] IR 525 at 541 and Ellis v O’Dea [1989] IR 530 at 541).

The Extradition (European Convention on the Suppression of Terrorism) Act 1987 was enacted ‘to give effect to the European Convention on the Suppression of Terrorism, done at Strasbourg on 27 January 1977, and to amend and extend the Extradition Act 1965.’ It came into operation on 1 December 1987 and, inter alia, excluded from the category of political offence or offence connected with a political offence ‘an offence involving the use of an explosive or an automatic firearm, if such use endangers persons’ (s. 3(1) and (3)(a)(v). The word ‘persons’ unless the contrary intention appears, which it does not, shall be construed as importing the word ‘person’ (Interpretation Act 1937, s. 11(a)).S. 9 of the Act effected an amendment of s. 50 of the Act of 1965 by the insertion of paragraph (bb).

The Extradition (Amendment) Act 1987 came into operation on 14 December 1987 and was continued in operation by a resolution passed by each House of the Oireachtas in December 1988. The amendment of the Act of 1965 effected by s. 2 of the Extradition (Amendment) Act 1987 provides that warrants such as in the present appeal shall not be endorsed for execution if the Attorney General so directs; such directions shall not be given unless the Attorney General having considered such information as he deems appropriate is of opinion that such intention is founded on the existence of sufficient evidence. Further, it shall be presumed, until the contrary is proved, that such a direction was not given and not required to be given in relation to the warrant. A further provision amended s. 50(2) of the 1965 Act by the insertion after paragraph (bb) of paragraph (bbb) as detailed in the judgment of the Chief Justice.

The Extradition (European Convention on the Suppression of Terrorism) Act 1987 excluded from the category of political offence or offence connected with a political offence a variety of different offences; the Oireachtas clearly contemplated that such offences would be subject to extradition. The Extradition (Amendment) Act 1987 made provision for the added supervision of the Attorney General and in particular required that he should be of opinion that the intention to prosecute was founded on the existence of sufficient evidence.

The making of the extradition arrangement presupposes that the government and the Oireachtas are satisfied, amongst other things, that, an Irish citizen being extradited either to the United Kingdom, as in this instance, or to any other State with which Ireland has such an arrangement, will not have his constitutional rights impaired. This does not, however, relieve the High Court or, on appeal, this Court, from its duty to inquire into allegations that there is a risk as contended on this appeal. In my view, the evidence tendered, as detailed in the judgment of the Chief Justice, falls far short of proving such facts as to compel one to conclude that such a risk exists as a reality.

cation is dismissed.

Fusco v. O’Dea (No. 2)

Geoghegan J. [1998] 3 IR 470
H.C.

Geoghegan J.
28th June, 1995

The plaintiff’s claim is for his release pursuant to the provisions of s. 50 of the Extradition Act, 1965, as amended. The proposed extradition relates to offences contained in warrants marked”A”, “B”, “C”, “D” and “E”. The plaintiff had originally been tried for these offences by the Crown Court in Northern Ireland sitting without a jury. While judgment was being reserved and the plaintiff remanded in custody in Belfast, the plaintiff escaped from prison in Northern Ireland. This escape occurred on the 10th June, 1981. A few days after the escape the Crown Court gave judgment and imposed terms of imprisonment for these offences. On the 18th January, 1982, the plaintiff was arrested by the Garda Siochana in County Kerry and brought before the Special Criminal Court where he was charged with the offence of escape and kindred offences arising out of the escape from Crumlin Road jail in Belfast. These charges were preferred under the Criminal Law (Jurisdiction) Act, 1976. The plain tiff was informed of his rights under s. 14(1) of the Act of 1976, and he did not elect for trial within Northern Ireland. The plaintiff was duly tried and convicted of the escape offences by the Special Criminal Court and sentenced to prison terms which he served in Portlaoise prison. The plaintiff was subsequently convicted for an offence involving an attempted escape from Portlaoise prison and was given a term of imprisonment to run consecutively following the expiration of the other terms. In respect of all the combined terms of imprisonment imposed in this jurisdiction, the plaintiff was due to be released on the 16th December, 1991. If he had not been given the additional consecutive term of imprisonment for the attempted escape from Portlaoise prison he would have been due for release on the 25th August, 1989.
On the 11th December, 1991,i.e., five days before his release date, the plaintiff was taken up to Dublin from Portlaoise prison by prison officers and brought to Green Street where he was then arrested by an officer of the Garda Siochana close to the courthouse on that street. The arrest was effected pursuant to a warrant issued under s. 43 of the Extradition Act, 1965, and the arrest was then purported to be made under s. 45 of the same Act. Immediately upon arrest the plaintiff was brought before the President of the District Court sitting as the District Court in the Green Street courthouse. The normal procedures under the Extradition Act, 1965 then followed and the plaintiff was remanded in custody. He was subsequently released on bail pending the outcome of these proceedings.
It is conceded by the defendant that the “political offence”exemption would apply to the offences contained in warrants”C” and”E”. Accordingly, in relation to those offences, the plaintiff would be entitled to his release pursuant to s. 50 of the Extradition Act, 1965, as amended. In relation to the offences contained in the remaining warrants, that is to say, “A”, “B” and”D”, it is accepted by the plaintiff that the “political offence” exemption would not apply but the plaintiff, nevertheless, seeks his release under s. 50 in respect of these offences also on three grounds. These are:-
1. That the provisions of s. 45 of the Extradition Act, 1965, were not properly complied with and that accordingly, everything that followed is a nullity.
2. That the court should hold after drawing proper inferences from the evidence that a decision was made by the Northern Ireland authorities following on the plaintiff’s arrest in Kerry in the month of January, 1982, or possibly even before that, not to seek his extradition having regard to an alleged assumption that extradition would not have been possible in the light of the statute law and established case law in this jurisdiction at that time. It is then argued that this decision, having been by implication communicated to the plaintiff, gave rise to an estoppel which prevented a future application for extradition.
3. That in all the circumstances and in particular, but not exclusively, the circumstances relied on for the purposes of the second argument, the court should, by virtue of s. 50(2)(bbb) of the Extradition Act, 1965, as amended, direct the release of the plaintiff.
I will deal with each of these arguments but the second and third arguments can be more or less taken together. The first argument, that is to say, the argument relating to s. 45 of the Act of 1965, is grounded on several quite different points. In the first place counsel for the plaintiff argues that the purported execution of the warrant endorsed under s. 43 took place in Portlaoise prison and he says that cannot be done and furthermore he says that even if it can be done, the plaintiff should then have been brought to the nearest District Court under s. 45(2) which in this case would have been Portlaoise and not to Dublin as in fact happened. I would reject both of these points. There is no legal principle of which I am aware which would prevent the execution of the warrant taking place within a prison where the person to be arrested was serving a sentence but I am quite satisfied that the point does not arise at any rate because the warrant was not in fact executed in Portlaoise prison. For the same reason, the argument that the plaintiff should have been brought to Portlaoise District Court also fails. The prison officers who removed the plaintiff from Portlaoise prison were not members of the Garda Siochana and a warrant endorsed under s. 43 may be executed under s. 45 only by a member of the Garda Siochana. Insofar as there was a purported execution of the warrant therefore, it quite clearly took place in Green Street in Dublin when the member of the Garda Siochana effected the arrest. Counsel for the plaintiff, however, submits that even if he is wrong in arguing that the purported execution of the warrant took place in Portlaoise and not in Dublin, the execution of the warrant in Dublin and the subsequent District Court hearing were nullities because there was no power in the prison authorities in Portlaoise to have the plaintiff transferred to Dublin for the purposes of the intended arrest. I do not accept this argument either. The plaintiff was taken up to Dublin by the prison officers under orders from the Governor of the prison, the Governor having received a direction from the Minister for Justice in the following terms:-
“The Minister for Justice hereby orders and directs that Angelo Fusco, a prisoner at present confined in Portlaoise prison, be produced at the Dublin Metropolitan District Court on the 11th December, 1991, and from day to day as may be necessary, the Minister for Justice being satisfied that the presence of the said person at such place is required in the interest of justice.”
According to counsel for the defendant, the authority to issue that direction derives from s. 11 of the Prisons Act, 1898. Under that section the Minister for Justice, on proof to his satisfaction that the presence of any prisoner at any place is required “in the interest of justice” may, by writing under his hand, order that the prisoner be taken to that place. In this case the Minister, for what to him seemed good reasons and indeed allegedly reasons of security, issued the direction so that in effect the District Court proceedings could take place in Green Street courthouse following on a garda arrest. I think that the expression “in the interest of justice” is wide enough to cover this situation but even if I am wrong about that, I do not think that the execution of the warrant and the District Court proceedings were invalidated on that account either by reason of the principles laid down in The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550, or otherwise. Accordingly, I hold that the warrant was properly executed and the District Court hearings were lawfully constituted and that the court lawfully exercised its jurisdiction. I therefore reject the plaintiff’s claim in so far as it is based on these arguments.
As I have already indicated, the second and third of the main arguments are inter-related and can be conveniently dealt with together. In case this matter goes to a higher court, I should make clear at this stage that I am finding as a fact that a decision was made in or about 1982, by the Northern Ireland authorities not to seek extradition in respect of the offences the subject matter of these warrants. There is no direct evidence of this decision but I draw a necessary inference from the facts that such a decision must have been made and I do so for the reasons put forward by counsel for the plaintiff. In arriving at this view I am not overlooking the evidence of Inspector Hamlin of the R.U.C. that he was not aware of any such decision and had seen no document recording it. It seems obvious from the internal garda correspondence included in the discovery and from the general circumstances of the case that such a decision was made. In a minute of the 29th July, 1981, from the Deputy Commissioner of the Garda Siochana to the Assistant Commissioner, Security and Intelligence Branch, it is noted as follows in relation to the escape of the prisoners from Crumlin Road Prison:-
“Proceedings could be taken under s. 3 of the Criminal Law (Jurisdiction) Act, 1976, if subjects are located in this jurisdiction or applications could be made for their extradition to Northern Ireland. In view of the contents of the final paragraph of Detective Superintendent McNeill’s report dated the 20th June, 1981, I would thank you to say which action the R.U.C. has requested.”
That minute was replied to by Assistant Commissioner Ainsworth in a minute of the month of August, 1981, in the following terms:-
“With reference to yours of the 2nd July, 1981, there is no point in going through the further exercise of extradition in these cases. It is proposed to deal with them under the Criminal Law (Jurisdiction) Act, 1976. Appropriate proofs have been solicited from the R.U.C. and they are in the course of preparation.”
From the tenor of these communications, it is perfectly obvious that there were on-going discussions between the Garda Siochana and the R.U.C. and it is quite clear that the Northern Ireland authorities decided against extradition in relation to the prison escape and opted for the procedure under the Criminal Law (Jurisdiction) Act, 1976. But if that is so, I think that it must necessarily follow that a decision was made at that time, presumably at a high level, not to seek extradition in relation to the original Northern Ireland offences for which the plaintiff had been convicted. If the Northern Ireland authorities had considered there was any possibility at all of obtaining extradition, that is the route which they surely would have followed. It would seem to me that at that stage even if, for some peculiar reason, extradition would not have been obtainable in respect of the prison escape offences but would have been obtainable in respect of the original Northern Ireland offences, extradition would have been sought in respect of those offences only. There would appear to have been no reason relating, for instance, to availability of witnesses or something of that kind which would have led to the decision to invoke the Criminal Law (Jurisdiction) Act, 1976, in respect of the prison escape offences. I infer that that procedure must have been adopted because of the perceived impossibility of obtaining extradition.
The extradition law in this jurisdiction subsequently changed so that the political offence exemption became more limited. In the light of that situation there was nothing in theory to prevent the Northern Ireland authorities changing their minds and applying for extradition in respect of the original offences in the more favourable circumstances in which they found themselves. I know of no principle of law to the effect that a decision not to seek extradition is irrevocable once made. Nor can the person sought to be extradited be heard to argue that his position cannot be altered or disimproved by reason of a change in the law. But while both of these propositions are true in theory, the surrounding circumstances may entitle the person sought to be extradited to successfully invoke s. 50(2)(bbb) of the Act of 1965, as amended. For the reasons which I have indicated, that is the only conceivable basis on which, in my view, the plaintiff would be entitled to succeed in this case in relation to the offences the subject matter of warrants “A”, “B” and “D”.I therefore turn now to consider whether that paragraph does in fact come into play in this case.
The relevant part of s. 50(2)(bbb) inserted into it, reads as follows:-
“(2) A direction under this section may be given by the High Court where 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 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 . . .”
The relevant offences in this case were committed in 1980 and the date of conviction was the 12th June, 1981. There has undoubtedly therefore been a long lapse of time. It is suggested that the only reason for the delay was because an application for extradition would be pointless as long as the plaintiff was serving a prison sentence in this jurisdiction. If that prison sentence had simply been for the commission of a crime or crimes in this jurisdiction, I would accept that it would not be unjust, oppressive or invidious to deliver up the plaintiff under s. 47 on foot of warrants executed toward the end of the Irish sentences. But there are “other exceptional circumstances” in this case, which combined with the long lapse of time, render it unjust, oppressive and invidious to deliver up the plaintiff under section 47. I do not propose to attempt a separate definition of “unjust”,”oppressive” and”invidious”. There is, in my view, considerable overlap between the three expressions. I consider that all three expressions can be applied in this case to render extradition inappropriate. The plaintiff is not a lawyer. There is no evidence or suggestion that it was ever intimated, or still less explained to him, that he was in jeopardy of extradition in respect of the original offences at the end of his prison terms in Portlaoise. It would seem reasonable to accept that having regard to the decision in 1982 by the Northern Ireland authorities to invoke the Criminal Law (Jurisdiction) Act, 1976, in respect of the Crumlin Road prison escapes rather than seek extradition in respect of those offences and/or the original offences for which the plaintiff was convicted, the plaintiff would have assumed that once he was finished with the prison terms in Portlaoise he was in no danger of being extradited to Northern Ireland. He has sworn on affidavit that that was his belief and has given his reasons for that belief which, in my view, are perfectly credible reasons. It would have been a simple matter to have indicated to the plaintiff at the time that the Criminal Law (Jurisdiction) Act, 1976, was being invoked that at the end of any prison term which he might receive in respect of the escapes, he could be liable to extradition to Northern Ireland in respect of the original offences. Far from there being such a simple communication, the conduct of the Northern Ireland authorities at that time gave rise to an implied communication to the plaintiff to the opposite effect.
I think it is clear from what I have said, that I am not, of course, holding that the invoking of the Criminal Law (Jurisdiction) Act, 1976, in respect of the prison escape offencesper se precluded an extradition application in respect of the original offences. Indeed, in other cases there could well be circumstances where it would be necessary to invoke the Criminal Law (Jurisdiction) Act, 1976, to achieve justice quite apart from any problems about obtaining extradition. Therefore in no sense am I holding that an extradition application could not be made. But what I am saying is that it would be oppressive and unjust to accede to it in circumstances where the conduct of the Northern Ireland authorities could reasonably have indicated to the plaintiff that he was not in jeopardy of extradition being sought.
He became lawfully married in the Registry Office in Killarney, County Kerry, on the 10th February, 1992. By this union the plaintiff has a son who was born on the 24th January, 1979, a daughter who was born on the 4th October, 1982, and he has a step-daughter by his wife’s former marriage in respect of whom he claims he has acted in all respects as a parent. The family are well settled in County Kerry and the plaintiff lives with them. The eldest child,i.e., the step-daughter, was enrolled in the Mercy primary school near his home and completed her primary education there. She then moved to a secondary school in the same vicinity and completed her leaving certificate in the month of June, 1994. The son was also at the Mercy primary school as was the natural daughter of the plaintiff. In para. 23 of his main affidavit, the plaintiff avers that his children have undergone their entire education in Tralee, with the exception of the step-daughter, who spent about two years at school in Belfast. He says that they have spent their formative years there and have become completely integrated in the local community. The step-daughter became a prefect and member of the debating team in her school and was head-girl in her final year and at the time of the swearing of the affidavit was studying at the Tralee Regional Technical College. The son was in his Junior Certificate year at Tralee Community College and the wife has been active in the locality in the residents’ association and in connection with a local youth club. The plaintiff maintains that his family is now firmly established in Tralee having lived there some thirteen years. The children have been reared and spent their formative years there, according to him. He argues that it would be hugely disruptive of their lives for them now to have to move to Northern Ireland. It is arguable to what extent I can take any of these factors into account but a number of English authorities have been cited to me by counsel for the plaintiff which indicate that in a general way family circumstances can be regarded as relevant. In this connection, other decided cases would seem to me to be of only marginal relevance because the facts are very different in each case. I am not, therefore, relying in particular on any one case cited to me. But I believe that the family circumstances can legitimately be taken into account not on their own but in combination with the other special factors which I have referred to in this case and which gave rise, or certainly could reasonably have given rise, to a belief on the part of the plaintiff that he would not be in danger of extradition. I therefore have come to the conclusion that this Court should direct the plaintiff’s release in respect of the offences in the relevant warrants on the grounds set out in para. (bbb) of s. 50(2) of the Act of 1965, as amended.
There is, however, another matter to which I wish to refer. In applying para. (bbb), I have not found it necessary to consider as a relevant factor a possible denial by the Northern Ireland authorities of credit to the plaintiff for the period of time spent in Portlaoise prison relating to the Crumlin Road escapes. There were ample grounds for applying para. (bbb) independently of that ground. But I think I should make it clear in case it became relevant on appeal that if I did have to consider that factor, it would not have been held by me to be a ground for applying para. (bbb) because I would have been prepared to accept the affidavit of Peter Neville-Bell of the Northern Ireland Office as sufficient evidence that full credit would be given for the Portlaoise sentence relating to the Belfast prison escape offences. The question of whether credit would be given or not arose at the hearing and I considered it to be of importance that there be some definite evidence in relation to it. It was agreed that such evidence would be obtained and I delayed preparing a judgment. Some considerable time after the hearing, this affidavit of Peter Neville-Bell was put in evidence. At that stage counsel for the plaintiff requested liberty to serve notice of intention to cross-examine, which I refused. I am aware that the propriety of exacting undertakings from a foreign government has been queried by individual members of the Supreme Court, notably by Ã“ DÃ¡laigh C.J. and more recently by McCarthy J. but I do not regard the affidavit of Mr. Neville-Bell as constituting an undertaking but rather as providing information as to the intentions of the Secretary of State for Northern Ireland. Having regard to the long history of co-operation in countering terrorism between the authorities in both jurisdiction, I consider that the Court should assume that the intention of the Secretary of State, as conveyed, would in fact be carried out and, in my view, that would be sufficient to oust the application of para. (bbb) if based solely on any alleged possibility of lack of credit for service in Portlaoise prison.
For the reasons which I have indicated, however, the plaintiff is entitled to succeed in relation to all the warrants. In respect of warrants “A”, “B” and “D” the release will be ordered by virtue of para. (bbb) as cited above and in the case of warrants “C”and “E” on the basis of the political offence exemption.

The defendant appealed to the Supreme Court by way of notice of appeal

Hamilton C.J.
18th February, 1998

On the 12th June, 1981, the above named Angelo Fusco (hereinafter called the plaintiff) was convicted by the Crown Court sitting at Belfast, Northern Ireland, of the following offences:-
(a) that he, the said plaintiff, on the 2nd May, 1980, in the County Court Division of Belfast, murdered Herbert Richard Westmacott contrary to common law;
(b) that he, the said plaintiff, on the 2nd May, 1980, in the County Court Division of Belfast, attempted to murder members of Her Majesty’s Forces, contrary to common law;
(c) that he, the said plaintiff, on the 2nd May, 1980, in the County Court Division of Belfast, had in his possession firearms and a quantity of ammunition, with intent by means thereof to endanger life or cause serious injury to property or to enable any other person by means thereof to endanger life or cause serious injury to property contrary to s. 14 of the Firearms Act (Northern Ireland), 1969;
(d) that he, the plaintiff herein, on the 22nd February, 1980, in the County Court Division of Belfast attempted to murder Peter Reynolds MacFadyen, contrary to common law;
(e) that he, the said plaintiff, on the 22nd February, 1980, in the County Court Division of Belfast had in his possession an M60 machine gun and a quantity of ammunition, with intent by means thereof to endanger life or cause serious injury to property or to enable any other person by means thereof to endanger life or cause serious injury to property contrary to s. 14 of the Firearms Act (Northern Ireland), 1969.
In respect of the offence set forth at (a), the plaintiff was sentenced on the 12th June, 1981, to imprisonment for life with a recommendation that the minimum period which should elapse before the Secretary of State considers the release of the said plaintiff under licence under s. 23 of the Prison Act (Northern Ireland), 1953, should be 30 years.
With regard to the offence set forth at (b) above, the said plaintiff was sentenced to imprisonment for life.
With regard to the offence set forth at (c) above, the said plaintiff was sentenced, on the 12th June, 1981, to 20 years imprisonment.
With regard to the offence set forth at (d) above, the plaintiff was sentenced to imprisonment for life.
With regard to the offence set forth at (e) above, the plaintiff was sentenced to 20 years imprisonment.
The aforesaid sentences were ordered to run concurrently.
Subsequent to his trial for the aforesaid offences but prior to his conviction and sentencing in respect thereof on the 12th June, 1981, the plaintiff, together with seven others, did on the 10th June, 1981, escape from lawful custody in Crumlin Road prison, Belfast, and remained at large until his arrest by members of the Garda Siochana in County Kerry on the 18th January, 1982.
At para. 12 of his affidavit, sworn in these proceedings on the 2nd November, 1994, the plaintiff herein referred to the judgment of the Court of Criminal Appeal in his case in support of his account of the facts in this case.
Dealing with his arrest, the said judgment, stated:-
“The applicant, Angelo Fusco, was also arrested by Sgt. Callaghan in Tralee. On the 18th January, 1982, Sgt. Callaghan was in possession of a search warrant under s. 29 of the Offences of the State Act, 1939. He entered the premises to which it related and there met Fusco. He arrested him. When doing so, he said:- ‘I am arresting you under s. 30 of the Offences Against the State Act, 1939, on suspicion that you are a member of an unlawful organisation, to wit, the I.R.A.'”
Though warrants had been issued for the arrest of the plaintiff and the other persons involved in the escape from Crumlin Road prison and forwarded to the garda authorities by the Royal Ulster Constabulary on the 21st June, 1981, no application was made in accordance with the provisions of the Extradition Act, 1965, as amended (“the Act of 1965”) for the extradition of the plaintiff to Northern Ireland.
The plaintiff was, however, brought before the Special Criminal Court on the 19th January, 1982, where he was charged with the following offences:-
“(i) shooting with intent to prevent lawful apprehension, contrary to s. 2 (1) of the Criminal Law (Jurisdiction) Act, 1976;
(ii) possession of a firearm with intent to endanger life, contrary to the same section;
(iii) production and use of a firearm in the course of escape, contrary to the same section;
(iv) escape from lawful custody in Northern Ireland, having been charged with murder [an offence listed in the schedule to the Criminal Law (Jurisdiction) Act, 1976] contrary to s. 3 of the same Act.”
None of the offences with which the plaintiff was charged was a scheduled offence within the meaning of the Offences Against the State Act, 1939. However, the appropriate certificate under s. 47(2) of that Act giving the Special Criminal Court jurisdiction to try the charges was issued by the Director of Public Prosecutions on the 19th January, 1982.
The plaintiff, together with a number of accused, was arraigned before the Special Criminal Court on the 16th February, 1982, and charged with the above offences.
The plaintiff was informed by the President of the Special Criminal Court of his right under the provisions of s. 14(1) of the Criminal Law (Jurisdiction) Act, 1976, to opt to go into custody in Northern Ireland for trial there instead of being tried in the State for the said offences but did not exercise that option.
The plaintiff was found guilty of each of the offences set forth in the indictment and was given sentences of 10, 8, 8 and 5 years respectively, to be served concurrently as and from the date of sentence, namely, the 25th February, 1982.
An application was made to the Special Criminal Court for leave to appeal against the plaintiff’s conviction of the said offences but was refused.
The plaintiff’s appeal to the Court of Criminal Appeal against such refusal and his application for leave to appeal were dismissed by the Court of Criminal Appeal on the 7th February, 1983.
While in custody in Portlaoise prison, the plaintiff attempted to escape from such custody and was convicted by the Special Criminal Court on the 29th May, 1986, of the offence of attempted escape from custody and was ordered to undergo a consecutive period of imprisonment which was due to end on the 16th December, 1991, he having been in custody since the date of his arrest on the 18th January, 1982.
On the 6th December, 1991, five separate warrants were issued by Thomas Joseph Travers, Resident Magistrate, a Justice of the Peace for each and every County Court jurisdiction in Northern Ireland, a judicial authority in Northern Ireland competent and having power under the law of Northern Ireland to issue such warrants.
These warrants related to the offences of which the plaintiff was convicted by the Crown Court sitting at Belfast, Northern Ireland, on the 12th June, 1981, which said offences are set forth at (a), (b), (c), (d) and (e) at the outset of this judgment.
These warrants were directed to the Chief Superintendent of the Royal Ulster Constabulary at Royal Ulster Constabulary Station, Musgrave Street, Belfast, Northern Ireland. They directed the arrest of the plaintiff, and that he be brought before a Magistrates Court for the County Court Division of Belfast, Northern Ireland, so that an order might be sought that he be returned to prison to undergo detention under the sentences of imprisonment which had been imposed on him in respect of the aforesaid offences.
In accordance with the provisions of s. 43 of the Act of 1965 each of the said warrants were endorsed for execution within the State by any member of the Garda Siochana, by the defendant on the 11th December, 1991.
On the 11th December, 1991, the plaintiff, who was at that time in custody in Portlaoise prison, was brought to Dublin by prison officers under orders from the Governor of the prison, he having received a direction from the Minister for Justice in the following terms:-
“The Minister for Justice hereby orders and directs that Angelo Fusco, a prisoner at present confined in Portlaoise prison, be produced at the Dublin Metropolitan District Court on the 11th December, 1991, and from day to day as may be necessary, the Minister for Justice being satisfied that the presence of the said person at such place is required in the interests of justice.”
At Green Street in the city of Dublin the aforesaid warrants were executed by a member of the Garda Siochana.
In accordance with the provisions of s. 45 of the Act of 1965, the plaintiff was, on arrest, brought before the President of the District Court sitting as the District Court in the Green Street courthouse.
The plaintiff was remanded in custody to Portlaoise prison on that date by the learned President of the District Court, he having heard evidence of arrest and evidence with regard to the nature of the extradition warrants and the identity of the plaintiff as the person named in the said warrants.
A hearing, pursuant to the provisions of s. 47 of the Act of 1965 was held on the 8th January, 1992, when orders for the delivery of the plaintiff at a point of departure were made by the said President of the District Court in accordance with the provisions of the said section.
Section 48 of the Act of 1965 provided as follows:-
“(1) A person to whom an order under section 47 relates shall not, except with his consent given before a justice of the District Court or a peace commissioner, be delivered up under the order until the expiration of fifteen days from the date of the order.
(2) If within that period an application is made by him or on his behalf for an order of habeas corpus or for his release under section 50, he shall not be delivered up while the application is pending.”
On the 9th January, 1992, a special summons was issued in the High Court on behalf of the plaintiff in which his release pursuant to the provisions of s. 50 of the Extradition Acts, 1965 to 1987, was sought and the plaintiff was, consequently, not delivered up pursuant to the said order.
It is desirable at this stage to set forth the provisions of s. 50 of the said Act of 1965 as amended.
Section 50 (as amended) provides that:-
“(1) A person arrested under this Part shall be released if the High Court or the Minister so directs in accordance with this section.
(2) A direction under this section may be given by the High Court where the Court is of opinion that –
(a) the offence to which the warrant relates is –
(i) a political offence or an offence connected with a political offence, or
(ii) an offence under military law which is not an offence under ordinary criminal law, or
(iii) a revenue offence, or
(b) there are substantial reasons for believing that the person named or described in the warrant will, if removed from the State under this Part, 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, or
(bb) there are substantial grounds for believing that the warrant was in fact issued for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinion or that his position would be prejudiced for any of these reasons, or
(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 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, or
(c) 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.”
As appears from the judgment of the learned trial judge and, indeed, the submissions made to this Court, it was conceded on behalf of the defendant that the “political offence” exemption contained in the said section would apply to the offences the subject matter of warrants “C” and “E” and that in relation to the offences referred to in the said warrants the plaintiff would be entitled to his release pursuant to the provisions of s. 50 of the Extradition Act, 1965, as amended and the learned trial judge directed the release of the plaintiff in respect of the said warrants on the basis of ‘the political offence’ exemption. There is no appeal against this portion of his order.
With regard to the offences the subject matter of warrants “A”,”B” and “D” it was conceded on behalf of the plaintiff that the”political offence” exemption did not apply in respect of the offences, the subject matter of the said warrants.
In these circumstances, the plaintiff’s case for his release in accordance with the provisions of s. 50 of the Extradition Act, 1965, as amended, was based on three grounds.
These were:-
1. That the provisions of s. 45 of the Extradition Act, 1965, were not properly complied with and that accordingly, everything that followed was a nullity.
2. That the court should hold, after drawing proper inferences from the evidence, that a decision was made by the Northern Ireland authorities following on the plaintiff’s arrest in Kerry in January, 1982, or possibly even before that, not to seek his extradition having regard to an alleged assumption that extradition would not have been possible in the light of the statute law and the established case law in this jurisdiction at that time.
It was then argued that this decision, having been by implication communicated to the plaintiff, gave rise to an estoppel which prevented a future application for extradition.
3. That in all the circumstances and in particular, but not exclusively, the circumstances relied on for the purposes of the second argument, the court should, by virtue of s. 50(2)(bbb) of the Extradition Act, 1965, as amended, direct the release of the plaintiff.
The learned trial judge rejected the grounds set forth at (1) and held that the warrants were properly executed by members of the Garda Siochana in accordance with the provisions of s. 45 of the Act of 1965.
The learned trial judge, however, directed the release of the plaintiff in respect of the offences set forth at warrants “A”,”B” and “D” on the grounds set out in para. (bbb) of sub-s. (2) of s. 50 of the Act of 1965, as amended.
These grounds were :-
“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 . . .”
The defendant has appealed against that portion of the order made by the learned trial judge and the plaintiff has cross-appealed against the finding of the learned trial judge that the warrants were validly executed by the members of the Garda Siochana in accordance with the provisions of s. 45 of the Act of 1965 and has also appealed on the grounds that he had been refused the opportunity, by the learned trial judge, to cross examine Peter Neville-Bell on the contents of his affidavit which was put in evidence some considerable time after the hearing.
The first matter to be considered by this Court is the appeal brought by the defendant against the portion of the order and judgment of the learned trial judge as directed the release of the plaintiff pursuant to the provisions of s. 50 of the Extradition Act, 1965, as amended, in respect of warrants “A”, “B” and “D”,there being no appeal in respect of the order granting release in respect of warrants”C” and “E”.
If this appeal is dismissed, it will not be necessary for the Court to consider the issues raised in the plaintiff’s cross-appeal.
Appeal of the defendant
While the High Court is empowered by s. 50 of the Act of 1965 to order the release of a person in respect of whom an order has been made in accordance with the provisions of s. 47 of the Act of 1965, it is only empowered to do so in the circumstances outlined in sub-s. (2) of the said section.
In the circumstances of this case, the High Court was only empowered to grant the plaintiff’s release if it were of opinion that it would be unjust, oppressive or invidious to deliver him up under s. 47 of the Act of 1965 by reason of the lapse of time and other exceptional circumstances and all the circumstances of the case.
The learned trial judge held that in this case that there were”other exceptional circumstances” which, combined with the long lapse of time between the conviction for the relevant offences and the application for extradition, rendered it unjust, oppressive and invidious to deliver up the plaintiff under s. 47 of the Act of 1965.
It is clear from a consideration of the judgment of the learned trial judge that the “exceptional circumstances”to which he had regard were:-
1. his finding of fact that a decision had been made in or about 1982, by the Northern Ireland authorities not to seek extradition in respect of the offences the subject matter of the warrants issued by a judicial authority in Northern Ireland and forwarded to the garda authorities on the 21st June, 1981;
2. his finding that the Northern Ireland authorities decided against extradition in relation to the prison escape and opted for the procedure under the Criminal Law (Jurisdiction) Act, 1976;
3. his inference from such finding that a decision was made at that time not to seek extradition in relation to the original Northern Ireland offences for which the plaintiff had been convicted and his inference that this procedure must have been adopted because of the perceived impossibility of obtaining extradition in respect of the offences of which he had been found guilty on the 12th June, 1981;
4. his finding, as was the case, that it had never been intimated, or explained to the plaintiff, that he was in jeopardy of extradition in respect of these original offences at the end of his prison terms in Portlaoise;
5. his finding that it would seem reasonable to accept that the plaintiff would have assumed that he was in no danger of being extradited to Northern Ireland in respect of the offences for which he had been convicted;
6. his finding that the conduct of the Northern Ireland authorities gave rise to an implied communication to the plaintiff that he would not be liable to extradition to Northern Ireland in respect of the original offences;
7. his finding that it would be oppressive and unjust to accede to the application for extradition where the conduct of the Northern Ireland authorities could reasonably have indicated to the plaintiff that he was not in jeopardy of extradition being sought;
8. the family circumstances of the plaintiff as set forth in the course of his judgment.
The defendant has challenged the validity of all the above findings, in law and of fact.
The findings of the judge (and the consequent grounds of appeal) may be divided into four separate categories:-
(1) those which relate to the alleged decision by the Northern Ireland authorities not to seek the plaintiff’s extradition in respect of the offences the subject of the warrants already referred to;
(2) that which relates to the finding that the election by the Northern Ireland authorities to have the plaintiff tried under the provisions of the Criminal Law (Jurisdiction) Act, 1976 in respect of his escape from Crumlin Road prison involved or constituted an option on their part not to seek extradition of the offences the subject matter of the warrants;
(3) those which relate to the finding by the learned trial judge that the conduct of the Northern Ireland authorities was such as to give rise to an implied inference that the plaintiff was not in jeopardy of extradition to Northern Ireland in respect of the offences the subject matter of the said warrants and that it was reasonable for the plaintiff to assume that once he finished with his prison terms in Portlaoise Prison he was in no danger of being extradited to Northern Ireland;
(4) those which relate to the learned trial judge’s taking into account the family and social circumstances of the plaintiff and his alleged failure to have sufficient regard to the seriousness of the offences.
The learned trial judge’s opinion that by reason of “lapse of time” and “other exceptional circumstances” it would be unjust, oppressive and invidious to deliver up the plaintiff under s. 47 of the Act of 1965 was based on a number of facts as found by him and inferences he drew from such facts.
In reviewing the decision of the learned trial judge, this Court is entitled and indeed bound to draw its own inferences from the primary facts and to form an independent opinion on the matter of injustice, oppression or invidiousness, while giving due weight to the conclusion of the learned trial judge.
Before dealing with the facts of this case and the submissions made thereon, it is desirable at this stage to outline briefly what appeared to be the law with regard to the nature of “a political offence or an offence connected with a political offence” at the time of the plaintiff’s arrest on the 18th January, 1982. This is relevant to the fact that, though warrants for the arrest of the plaintiff had been forwarded to the garda authorities by the Royal Ulster Constabulary on the 21st June, 1981, no application was made in accordance with the provisions of the Extradition Act, 1965, as amended, for the extradition of the plaintiff to Northern Ireland.
Prior to the decision of this Court in McGlinchey v. Wren [1982] I.R. 154, the Irish courts had invariably treated offences relating to the conflict in Northern Ireland as political offences or offences connected with a political offence.
In the course of his judgment in that case, delivered on the 7th December, 1982, O’Higgins C.J. stated at p. 159 that:-
“The judicial authorities on the scope of such offences have been rendered obsolete in many respects by the fact that modern terrorist violence, whether undertaken by military or para-military organisations, or by individuals or groups of individuals, is often the antithesis of what could reasonably be regarded as political, either in itself or in its connections. All that can be said with authority in this case is that, with or without the concession made on behalf of the plaintiff, this offence could not be said to be either a political offence or an offence connected with a political offence.”
This case brought about a fundamental change in the law and subsequent to this decision, it was no longer the position that offences alleged to have been committed in the course of the conflict in Northern Ireland were automatically regarded as political offences or offences connected with a political offence.
However, prior to this decision it was reasonable to assume that the offences of which the plaintiff had been convicted would be regarded as political offences and that a request for extradition to Northern Ireland would not be granted.

This was, undoubtedly the view taken by Assistant Commissioner Ainsworth, who stated in the minute of August, 1981, referred to in the judgment of the learned trial judge, that:-
“. . . there is no point in going through the further exercise of extradition in these cases. It is proposed to deal with them under the Criminal Law (Jurisdiction) Act, 1976. Appropriate proofs have been solicited from the R.U.C. and they are in the course of preparation.”
This decision (apparently acquiesced in by the Northern Ireland authorities) was made prior to the arrest of the plaintiff on the 18th January, 1982, and was implemented subsequent to his arrest as already outlined herein.
In the course of his judgment, the learned trial judge stated at p. 477:-
“In case this matter goes to a higher court, I should make clear at this stage that I am finding as a fact that a decision was made in or about 1982 by the Northern Ireland authorities not to seek extradition in respect of the offences the subject matter of these warrants. There is no direct evidence of this decision but I draw a necessary inference from the facts that such a decision must have been made and I do so for the reasons put forward by counsel for the plaintiff. In arriving at this view I am not overlooking the evidence of Inspector Hamlin of the R.U.C. that he was not aware of any such decision and had seen no document recording it. It seems obvious from the internal garda correspondence included in the discovery and from the general circumstances of the case that such a decision was made. In a minute of the 29th July, 1981, from the Deputy Commissioner of the Garda Siochana to the Assistant Commissioner, Security and Intelligence Branch, it is noted as follows in relation to the escape of the prisoners from Crumlin Road prison.
‘Proceedings could be taken under s. 3 of the Criminal Law (Jurisdiction) Act, 1976, if subjects are located in this jurisdiction or applications could be made for their extradition to Northern Ireland. In view of the contents of the final paragraph of Detective Superintendent McNeill’s report dated the 20th June, 1981, I would thank you to say which action the R.U.C. have requested.’
That minute was replied to by Assistant Commissioner Ainsworth in a minute of August, 1981, in the following terms:-
‘With reference to yours of the 2nd July, 1981, there is no point in going through the further exercise of extradition in these cases. It is proposed to deal with them under the Criminal Law (Jurisdiction) Act, 1976. Appropriate proofs have been solicited from the R.U.C. and they are in the course of preparation.’
From the tenor of these communications, it is perfectly obvious that there were on-going discussions between the Garda Siochana and the R.U.C. and it is quite clear that the Northern Ireland authorities decided against extradition in relation to the prison escape and opted for the procedure under the Criminal Law (Jurisdiction) Act, 1976. But if that is so, I think that it must necessarily follow that a decision was made at that time, presumably at a high level, not to seek extradition in relation to the original Northern Ireland offences for which the plaintiff had been convicted. If the Northern Ireland authorities had considered there was any possibility at all of obtaining extradition, that is the route which they surely would have followed. It would seem to me that at that stage even if, for some peculiar reason, extradition would not have been obtainable in respect of the prison escape offences but would have been obtainable in respect of the original Northern Ireland offences, extradition would have been sought in respect of those offences only. There would appear to have been no reason relating, for instance, to availability of witnesses or something of that kind which would have led to the decision to invoke the Criminal Law (Jurisdiction) Act, 1976, in respect of the prison escape offences. I infer that that procedure must have been adopted because of the perceived impossibility of obtaining extradition.”
This passage from the judgment of the learned trial judge contains:-
(1) a clear finding of fact that a decision was made by the Northern Ireland authorities not to seek extradition in respect of the offences, the subject matter of the warrants relating to the offences of which the plaintiff was convicted in Northern Ireland;
(2) a clear finding of fact that the Northern Ireland authorities decided against extradition in relation to the prison escape and opted for the procedure under the Criminal Law (Jurisdiction) Act, 1976.
Having regard to subsequent developmentsviz. the plaintiff’s trial and conviction by the Special Criminal Court it is clear that his finding at (2) was correct.
However, he went on to say that “if that is so, I think it must necessarily follow that a decision was made at that time, presumably at a high level not to seek extradition in relation to the original Northern Ireland offences for which the plaintiff had been convicted.”
It is submitted on behalf of the defendant that the learned trial judge erred in law and in fact in so finding.
I am satisfied that, on the basis of the evidence before him, it was open to the learned trial judge to make such findings and that because of the then perceived difficulties with regard to obtaining an order for extradition in respect of the offences of which the plaintiff had been convicted, it was decided that the appropriate way of dealing with the situation was to avail of the provisions of the Criminal Law (Jurisdiction) Act, 1976, which was done.
As stated by the learned trial judge however at p. 478:-
“The extradition law in this jurisdiction subsequently changed so that the political offence exemption became more limited. In the light of that situation there was nothing in theory to prevent the Northern Ireland authorities changing their minds and applying for extradition in respect of the original offences in the more favourable circumstances in which they found themselves. I know of no principle of law to the effect that a decision not to seek extradition is irrevocable once made. Nor can the person sought to be extradited be heard to argue that his position cannot be altered or disimproved by reason of a change in the law.”
I agree with this statement of the learned trial judge, who then proceeded to outline the issue in this case, namely whether the High Court should direct the release of the respondent by reason of the provisions of s. 50(2)(bbb) of the Extradition Act, 1965, as amended, which said sub-section provided:-
“. . . 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 . . .”
In order to justify a direction pursuant to the provisions of s. 50 of the Extradition Act, 1965, as amended, to release a person arrested under the Act, a court must be of opinion that there was a lapse of time since the commission of the offence or the conviction in respect thereof and other exceptional circumstances which would render it unjust, oppressive or invidious to deliver him up.
The learned trial judge found that –
(1) there was a long lapse of time between the conviction and the date of application for extradition;
(2) there were “other exceptional circumstances”, which combined therewith, rendered it unjust, oppressive and invidious to deliver up the plaintiff under s. 47 of the Act of 1965.
I have already had reason to set out those exceptional circumstances earlier in this judgment.
With regard to the “exceptional circumstances” as identified by the learned trial judge, the defendant has submitted that the learned trial judge erred in fact and in law in:-
(1) finding that it was reasonable for the plaintiff to assume that once he finished with the prison terms in Portlaoise he was in no danger of being extradited to Northern Ireland in respect of the offences the subject matter of the warrants;
(2) holding that the conduct of the Northern Ireland authorities was such as to give rise to an implied inference to the plaintiff that he was not in jeopardy of extradition to Northern Ireland in respect of the said offences;
(3) taking into account the family and social circumstances of the plaintiff as outlined in the judgment, and
(4) failing to give sufficient weight to the seriousness of the offences contained in the warrants.
The learned trial judge was entitled to take into account the family and social circumstances of the plaintiff. As he stated at p. 481:-
“I believe that the family circumstances can legitimately be taken into account not on their own but in combination with the other special factors which I have referred to in this case and which gave rise, or certainly could reasonably have given rise, to a belief on the part of the plaintiff that he would not be in danger of extradition.”
In considering the question of family and social circumstances, he was also obliged to take into account all the circumstances including the seriousness of the offences of which the plaintiff had been convicted in Northern Ireland and all the other circumstances of the case.
In the course of his speech in the House of Lords in the case of Kakis v. Republic of Cyprus [1978] 1 W.L.R. 779, Keith L.J. stated at p. 786:-
“The nature of the function of this House in reviewing a decision of the Divisional Court under section 8(3) of the Act of 1967 was recently considered in Reg. v. Governor of Pentonville Prison, Ex p. Narang [1978] A.C. 247. It was held that the matter is to be approached in the same way as the review of any decision of a subordinate court upon an issue of fact, and that this House is entitled and indeed bound to draw its own inferences from the primary facts and to form an independent opinion upon the matter of injustice or oppression, while giving due weight to the conclusion of the court below.”
The primary facts have already been outlined by me in the course of this judgment.
On the basis of such facts, the learned trial judge was of opinion that having regard to all the circumstances it would be oppressive and unjust to accede to the request for extradition in this case.
I am entitled to draw my own inferences from the said primary facts and to form an independent opinion upon the matter of injustice, oppression or invidiousness.
As pointed out by the learned trial judge, these terms have not been defined and there is a considerable overlap between their respective meanings.
The interests of justice normally require that persons accused of serious crimes should be brought to trial and if convicted, should be obliged to serve sentences lawfully imposed in accordance with law.
Having regard to this fundamental requirement of the interests of justice, a person, such as the plaintiff, who has been found guilty of murder, attempted murder and possession of firearms faces a heavy onus in establishing that it would be unjust, oppressive or invidious to deliver him up pursuant to the provisions of s. 47 of the Act of 1965 for the purpose of serving the sentences lawfully imposed in respect of such offences.
The plaintiff’s difficulties in this regard are compounded by the fact that the application for extradition was necessitated by the fact that the plaintiff did on the 10th June, 1981, escape from lawful custody in Crumlin Road prison and remained at large until his arrest by members of the Garda Siochana in County Kerry on the 18th January, 1982. During the course of such escape he committed the serious offences in respect of which he was charged before the Special Criminal Court on the 19th January, 1982, and convicted thereof and sentenced by the said Court on the 25th February, 1982, as set forth in the earlier portion of this judgment.
The plaintiff had sought and seeks to discharge this onus of satisfying the Court that it would be unjust, oppressive or invidious to deliver him up under s. 47 upon the following grounds:-
(1) A decision was made by the Northern Ireland authorities following the plaintiff’s arrest in Kerry in January, 1982, or possibly before that, not to seek his extradition having regard to the alleged assumption that extradition would not have been possible in the light of the statute law and the established case law in this jurisdiction at that time.
(2) The decision to avail of the provisions of the Criminal Law (Jurisdiction) Act, 1976, to charge the plaintiff before the Special Criminal Court with the escape from lawful custody and other associated offences as outlined earlier herein, and not seeking extradition in respect thereof or in respect of the offences of which he had been convicted in Northern Ireland gave rise to an estoppel which prevented a future application for extradition.
(3) Having regard to this decision, the plaintiff accepted the jurisdiction of the Special Criminal Court and did not opt, in accordance with the provisions of s. 14 of the Criminal Law (Jurisdiction) Act, 1976, to be tried in Northern Ireland in respect of such offences in the belief that, at the termination of such sentences as would be imposed by the Special Criminal Court, no application for extradition would be made.
(4) Relying on such belief, arrangements were made for the transfer of the plaintiff’s family from Northern Ireland to Kerry where they are now established.
It was accepted by the learned trial judge, and is the position, that the decision of the Northern Ireland authorities not to seek extradition in respect of the offences of which the plaintiff had been convicted in 1981 or 1982, did not preclude them from making the present application.
I do not accept that the decision by the Northern Ireland authorities to avail of the provisions of the Criminal Law (Jurisdiction) Act, 1976, to charge the plaintiff before the Special Criminal Court with the escape from lawful custody and other offences and not to seek extradition in respect thereof and the decision not, at that time, to seek extradition in respect of the offences of which he had been convicted in Northern Ireland and in respect of which warrants for the arrest of June, 1981, gave rise to an estoppel which prevented a future application being made such as the present application.
While I am prepared to accept the genuineness of the plaintiff’s belief that, in the events which happened, an application for his extradition would not be made in respect of the offences of which he had been convicted in Northern Ireland, I do not accept that such a belief was justified by the actions or decisions made at the time by the Northern Ireland and/or the garda authorities who acted in accordance with law.
Apart altogether from the reasonableness or otherwise of the plaintiff’s belief, there is an onus on the plaintiff to show that he has been damnified as a result of his reliance upon the facts relied on by him which gave rise to the estoppel.
In this case, the plaintiff claims that he has been damnified by reason of the fact that he relied on such belief, made a conscious decision not to return to Northern Ireland to be tried for the offence of escaping from custody, and opted to be tried within this jurisdiction and to move his family to this jurisdiction.
The change in the circumstances of the family brought about by the decision of the plaintiff to move his family from Northern Ireland to this jurisdiction is undoubtedly a factor to be taken into account in determining whether it would be unjust, oppressive or invidious to deliver up the plaintiff pursuant to the provisions of s. 47 of the Act of 1965.
The circumstances of the family must be considered in the light of and having regard to the seriousness of the offences which the plaintiff has been convicted and sentenced.
Having regard to the seriousness of the offences as outlined herein the change in the circumstances of the family is not such as to render it either unjust, or oppressive or invidious to order the delivery up of the plaintiff in accordance with the provisions of s. 47 of the Act of 1965.
As I have already stated, the interests of justice require that persons accused of serious offences should be brought to trial and if convicted, should be obliged to serve sentences lawfully imposed.
Having regard to all the circumstances of this case, I am of the opinion that there is no basis for holding that it would be either unjust, or oppressive, or invidious to deliver up the plaintiff herein for the purpose of serving the sentences lawfully imposed on him in respect of the serious offences of which he had been found guilty, other than one.
I am of the opinion that it would be both unjust and oppressive to deliver up the plaintiff to serve the said sentences if credit were not given for the period of imprisonment which he served in respect of offences committed in Northern Ireland and which were the subject of the trial before the Special Criminal Court.
In connection with this aspect of the case, the learned trial judge in the course of his judgment stated at p. 481:-
“There is, however, another matter to which I wish to refer. In applying para. (bbb), I have not found it necessary to consider as a relevant factor a possible denial by the Northern Ireland authorities of credit to the plaintiff for the period of time spent in Portlaoise Prison relating to the Crumlin Road escapes. There were ample grounds for applying para. (bbb) independently of that ground. But I think I should make it clear in case it became relevant on an appeal that if I did have to consider that factor, it would not have been held by me to be a ground for applying para. (bbb) because I would have been prepared to accept the affidavit of Peter Neville-Bell of the Northern Ireland office as sufficient evidence that full credit would be given for the Portlaoise sentence relating to the Belfast prison escape offences. The question of whether credit would be given or not arose at the hearing and I considered it to be of importance that there be some definite evidence in relation to it. It was agreed that such evidence would be obtained and I delayed preparing a judgment. Some considerable time after the hearing, this affidavit of Peter Neville-Bell was put in evidence. At that stage counsel for the plaintiff requested liberty to serve notice of intention to cross-examine, which I refused. I am aware that the propriety of exacting undertakings from a foreign government has been queried by individual members of the Supreme Court, notably by Ã“ DÃ¡laigh C.J. and more recently by McCarthy J. but I do not regard the affidavit of Mr. Neville-Bell as constituting an undertaking but rather as providing information as to the intentions of the Secretary of State for Northern Ireland. Having regard to the long history of co-operation in countering terrorism between the authorities in both jurisdictions, I consider that the Court should assume that the intention of the Secretary of State, as conveyed, would in fact be carried out and, in my view, that would be sufficient to oust the application of para. (bbb) if based solely on any alleged possibility of lack of credit for service in Portlaoise prison.”
I agree with the entire of the said portion of the learned trial judge’s judgment and in particular his statement that:-
“Having regard to the long history of co-operation in countering terrorism between the authorities in both jurisdictions, I consider that the court should assume that the intention of the Secretary of State, as conveyed, would in fact be carried out and, in my view, that would be sufficient to oust the application of para. (bbb) if based solely on any alleged possibility of lack of credit for service in Portlaoise prison.”
That, in my opinion, is sufficient to remove any possibility that it would be unjust, oppressive or invidious to order the delivery up of the plaintiff in accordance with the provisions of s. 47 of the Act of 1965.
The plaintiff has appealed against the refusal of the learned trial judge to make an order directing the cross-examination of Mr. Peter Neville- Bell but I am satisfied that the learned trial judge, at that stage of the hearing, properly exercised his discretion to refuse to permit the service of a notice of intention to cross-examine. In fact, counsel for the plaintiff was unable to establish that the plaintiff was in any way prejudiced by such refusal.
The plaintiff has also appealed against the finding made by the learned trial judge that the plaintiff was arrested by members of the Garda Siochana in Green Street in the City of Dublin and that the hearing before the President of the District Court at Green Street in the City of Dublin was properly conducted and that the District Court lawfully exercised its jurisdiction in this matter. It had been submitted by counsel for the plaintiff that the plaintiff was in fact arrested in Portlaoise prison and that by virtue of the provisions of s. 45(2) of the Act of 1965 he should have been brought before a justice of the District Court for the district in which he was arrested.
The learned trial judge properly held that the plaintiff was arrested by a member of the Garda Siochana at Green Street in the City of Dublin and that the appropriate person before whom he should be brought was a justice of the District Court for the district in which he was arrested.
Counsel for the plaintiff further submitted that if in fact the respondent was arrested by a member of the Garda Siochana at Green Street on the 11th December, 1991, that such arrest was unlawful; that the action of the prison officers from Portlaoise prison, in which the plaintiff was lawfully detained, in bringing the prisoner from Portlaoise prison to Green Street was unlawful.
Counsel on behalf of the plaintiff submitted that there was no power in the prison authorities in Portlaoise to have the plaintiff transferred to Dublin for the purposes of the intended arrest.
As appears from the judgment of the learned trial judge, the plaintiff was taken up to Dublin by the prison officers under orders from the Governor of the prison, the Governor having received a direction from the Minister for Justice in the following terms:-
“The Minister for Justice hereby orders and directs that Angelo Fusco, a prisoner at present confined in Portlaoise prison, be produced at the Dublin Metropolitan District Court on the 11th December, 1991, and from day to day as maybe necessary, the Minister for Justice being satisfied that the presence of the said person at such place is required in the interests of justice.”
It had been argued in the High Court that the authority to issue that direction derives from s. 11 of the Prisons Act, 1898.
It transpired at the hearing before the Supreme Court that the provisions of the Prisons Act, 1898, did not apply within this jurisdiction and that consequently there was no authority to direct the transfer of the prisoner to Green Street for the purpose of having the warrants of arrest executed.
Section 45 of the Act of 1965 provides that:-
“(1) A warrant endorsed under section 43 may be executed by any member of the Garda Siochana in any part of the State.
(2) The person named or described in the warrant shall on arrest be brought before a justice of the District Court for the district in which he was arrested, if a justice is immediately available.”
The warrants sought to be executed in this case and which were in fact executed had been issued by the relevant judicial authority in Northern Ireland and had been in accordance with the provisions of s. 43 of the Act of 1965 endorsed by the defendant on the 11th December, 1991, for execution within the State by any member of the Garda Siochana.
The purpose of bringing the plaintiff to Green Street in the City of Dublin on the 11th December, 1991, was to enable the said warrants to be executed there by members of the Garda Siochana.
Irrespective of the question as to whether or not s. 11 of the Prisons Act, 1898, applies, there is nothing unlawful in the action of the Minister in directing the Governor of Portlaoise prison to produce a person detained in the custody of the Governor at a particular place and at a particular time for the purpose of having executed warrants which had been lawfully issued and endorsed, provided that the Governor does not object to so doing.
The purpose of the arrest was to have the person named and described in the warrants brought before a Judge of the District Court.
I am satisfied that the arrest and subsequent appearance of the plaintiff before the President of the District Court were lawful.
For the reasons outlined in the course of this judgment, I am satisfied that the appeal by the defendant should succeed and that the order made by the High Court should be discharged.
I would like to emphasise and repeat that only the warrants which have been described as (a), (b) and (d) should be executed and that the plaintiff is entitled to be discharged in respect of warrants (c) and (e).

O’Flaherty J.
I agree.

Denham J.
On the 28th June, 1995, the High Court ordered the release of the plaintiff pursuant to the provisions of s. 50 of the Extradition Act, 1965, as amended. Against that decision the defendant has appealed. The major issue is the exemption from extradition pursuant to s. 50(2)(bbb) of the Extradition Act, 1965.
Facts
The relevant facts commence in 1980. The plaintiff was arrested in Belfast on the 2nd May, 1980, under s. 12 of the Prevention of Terrorism (Temporary Provisions) Act, 1976. On arrest he was taken to Castlereagh where he was questioned about crimes including the offences with which he was subsequently charged. The plaintiff says of his time in Castlereagh:-
“I was there questioned about a number of offences allegedly committed by members of the Provisional I.R.A.”.
He was tried by the Crown Court sitting without a jury together with a number of other accused including Robert Campbell, Paul Magee, Joseph Doherty, Anthony Sloan, Gerard Sloan and Michael McKee. He was charged with offences against members of the security forces in Northern Ireland, including murder, possession of firearms and membership of the Provisional Irish Republican Army. He pleaded not guilty. The trial commenced on or about the 28th April, 1981. At the conclusion of the evidence and the submissions the plaintiff was remanded in custody to Crumlin Road prison. On the 10th June, 1981, the plaintiff escaped from prison together with Michael Ryan, Anthony Sloan, Paul Magee, Gerard Sloan, Robert Campbell, Joseph Doherty and Michael McKee. He was convicted on the 12th June, 1981, in his absence on seven counts on the bill of indictment. Five of these are the subject of the warrants grounding the request for rendition of the plaintiff to Northern Ireland. In describing these offences the plaintiff deposed in para. 8 of his affidavit sworn on the 2nd November, 1994:-
“In summary, the offences detailed in warrants A, B and C relate to an incident when a house on the Antrim Road, Belfast, was taken over by a Provisional I.R.A. unit for the purpose of using it as a base for an armed ambush of Crown Forces. A gun battle ensued when a group of S.A.S. soldiers attempted to storm the building and a Captain Herbert William Westmacott was killed in the exchange of fire. Warrants D and E relate to an incident at Turf Lodge, Belfast, when it was alleged I was a member of a Provisional I.R.A. group which fired upon members of a British Army patrol by way of ambush”.
The warrants in issue on this appeal are:-
(a) on warrant “A” for the murder of Herbert Richard Westmacott on the 2nd May, 1980;
(b) on warrant “B” for the attempted murder on the 2nd May, 1980, of members of Her Majesty’s forces;
(c) on warrant “C” for that he on the 2nd May, 1980, had in his possession firearms, namely a 7.62 X 51 mm calibre M60 machine-gun, a 7.62 X 51 mm calibre Heckler and Koch rifle, a 7.62 X 51 mm calibre Fal SLR rifle, a 9 mm P calibre Astra model 600 pistol and a quantity of ammunition, with intent by means thereof to endanger life or cause serious injury to property or to enable any other person by means thereof to endanger life or cause serious injury to property;
(d) on warrant “D” for that on the 22nd February, 1980, in Belfast he attempted to murder Peter Reynolds MacFadyen; and
(e) on warrant “E” for that he on the 22nd February, 1980, in Belfast had in his possession an M60 machine-gun and a quantity of ammunition, with intent by means thereof to endanger life or cause serious injury to property or to enable any other person by means thereof to endanger life or cause serious injury to property.
After his escape he was arrested in County Kerry on the 18th January, 1982, brought before the Special Criminal Court and charged with escape and other offences arising out of the escape from Crumlin Road jail in Belfast. These charges were preferred under the Criminal Law (Jurisdiction) Act, 1976. The plaintiff was informed of his rights under s. 14(1) of the Act of 1976 and did not elect for trial in Northern Ireland. On the 25th February, 1982, he was convicted and sentenced to 10 years penal servitude, 8 years and 5 years imprisonment, to run concurrently. He was due for release on the 25th August, 1989. However, on the 29th May, 1986, he was convicted by the Special Criminal Court of the offence of attempted escape from custody in this jurisdiction and ordered to undergo a consecutive period of imprisonment which was due to end on the 16th December, 1991. On the 11th December, 1991, while still serving that sentence, he was taken to Dublin and arrested on foot of the extradition warrants in issue. He was remanded back to Portlaoise. On the 8th January, 1992, orders for delivery at point of departure were made by the President of the District Court. The plaintiff appealed against these orders by way of s. 50 of the Extradition Act, 1965. He has been on bail pending the outcome of the proceedings.
Warrants
In the High Court it was conceded by the defendant that the political offence exemption would apply to the offences contained in warrant “C” and “E”. It was ordered that he be released on those warrants. There was no appeal on this issue. Consequently, the only offences in the appeal are those in warrants “A”, “B”and “D”. It is in relation to these offences that the plaintiff has sought release under s. 50(2)(bbb) of the Extradition Act, 1965.
High Court
In the High Court, Geoghegan J. found that there had been a long lapse of time and that there were “other exceptional circumstances”which would render it oppressive and unjust to deliver up the plaintiff. He found that it was never explained to the plaintiff that he was in jeopardy of extradition on the original offences at the end of his prison terms in Portlaoise; that it was reasonable in the circumstances that the plaintiff would have assumed that once he had completed his prison terms in Portlaoise that he was in no danger of being extradited to Northern Ireland in respect of the original offences in Northern Ireland. He found the plaintiff’s belief perfectly credible. He found that the conduct of the Northern Ireland authorities gave rise to an implied communication that the plaintiff would not be subject to extradition. Geoghegan J. stated at p. 480:-
“. . . what I am saying is that it would be oppressive and unjust to accede to it in circumstances where the conduct of the Northern Ireland authorities could reasonably have indicated to the plaintiff that he was not in jeopardy of extradition being sought.”
Further, he described the family circumstances and their move to Tralee and regarded them as relevant. He held at p. 481:-
“. . . I believe that the family circumstances can legitimately be taken into account not on their own but in combination with the other special factors which I have referred to in this case and which gave rise, or certainly could reasonably have given rise, to a belief on the part of the plaintiff that he would not be in danger of extradition.”
He concluded that the plaintiff should be released on the grounds set out in s. 50(2)(bbb) of the Extradition Act, 1965.
Submissions
Counsel on behalf of the defendant, while relying on the notice of appeal, submitted specifically that the learned trial judge:-
(a) had taken no account of the seriousness of the crimes of which extradition was sought;
(b) took no account of how the plaintiff’s own conduct contributed to the circumstancese.g. his escape in Northern Ireland and his attempted escape from Portlaoise prison; and
(c) erred in considering the term “exceptional circumstances”and made an inference too far by holding that the Northern Ireland authorities had made a final decision not to extradite.
In the notice of appeal it was pleaded that the learned trial judge had erred in law and in fact in holding that:- a decision had been made in 1982, by the Northern Ireland authorities not to seek the extradition of the plaintiff; in drawing an inference that such a decision had been made; in finding that an election by the Northern Ireland authorities made to try the plaintiff under the Act of 1976 regarding the escape offences involved an option on their part not to seek his extradition on the offences the subject of the warrants; in determining that it was reasonable for the plaintiff to assume that once he had finished the prison terms in Portlaoise he was in no danger of being extradited; the conduct of the Northern Ireland authorities gave rise to an implied inference to the plaintiff that he was not in jeopardy of extradition to Northern Ireland; the learned High Court Judge erred in taking into account the family and several circumstances of the plaintiff in the manner which he did; such weight should be attached to the family and social circumstances; the plaintiff had acted to his detriment or organised his affairs in the belief that extradition would not be sought.
Counsel for the plaintiff on the issue of s. 50(2)(bbb), asked the Court to uphold the High Court and relied on the papers, including submissions, filed. He stressed: (a) that the issues in the section were factual and that the principle arbiter of fact is the learned trial judge; (b) that the only question of fact to have been disputed in the High Court was the intention of the Northern Ireland authorities; (c) that the learned trial judge found as a fact that a decision had been made not to seek extradition, a decision at that time. He submitted that the only reason the plaintiff could be extradited was because of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987; that if the plaintiff had been free in 1987, he might have left Ireland; that he should not be disadvantaged by a change of law; that this was the unfairness of retrospective legislation; that the decision regarding the extradition option created a form of estoppel or legitimate expectation; that to extradite the plaintiff would enable the defendant to take advantage of a change of law that occurred six years after he was arrested and would be oppressive; that the parallels with McGlinchey v. Wren [1982] I.R. 54, are so uncanny that it raised the issue of unfair discrimination which rendered it invidious to extradite him; that the family circumstances were profoundly changed in light of the decision then regarding extradition; that no proper undertaking was offered.
Law
The relevant statute law is s. 50(2)(bbb) of the Extradition Act, 1965 which states:-
“Section 50
(1) A person arrested under this Part shall be released if the High Court or the Minister so directs in accordance with this section.
(2) A direction under this section may be given by the High Court where 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 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, . . .”
Lapse of time
The offences specified in the three relevant warrants occurred in 1980. The convictions were in 1981. These proceedings were commenced in 1992. The interlude between 1980 or 1981 and 1992, is by any reasonable standard a lapse of time such as to trigger consideration under section 50(1)(bbb).
Other exceptional circumstances
The section requires that in addition to the lapse of time that there be “other exceptional circumstances” such as to enable the exemption to apply. It is for the plaintiff to prove that the exemption applies on the balance of probabilities. The section requires that there be “other exceptional circumstances”,not “other circumstances”. The fact that the exemption is defined so strongly is in keeping with the nature of extradition where once the executive branch of Government has made a policy decision that extradition or rendition agreements exist between two countries and the legislature has passed the requisite legislation, extradition becomes mandatory subject to the law and the Constitution. Thus, it is understandable that exemptions are strongly defined in the legislation. However, they must be strictly construed.
The word “exceptional” indicates that the exemption will be rare, will be the exception, unusual. The words “unjust, oppressive or invidious” have meanings which overlap to some extent. However, they too are words imbuing a sense of force or power. I do not intend to attempt to give a definitive definition of these terms. However, it appears to me that they suggest certain concepts. Thus, “unjust”suggests,inter alia, unfairness, a lack of fair treatment.”Oppressive” indicates actions that,inter alia, are oppressing a person, or group of persons, treating them badly, or cruelly, keeping them in subservience. While “invidious” raises the concept of circumstances likely to cause resentment, anger or envy, such situations may arise if there is, for example, discrimination.
The exceptional circumstances must be identified. It is clear that the learned trial judge considered the exceptional circumstances to be: the decision of the authorities in 1981 to prosecute in Ireland on the escape offences and not to proceed with extradition on the murder and other offences, that this had in effect been communicated to the plaintiff, that the plaintiff had a belief that he would not be extradited after his term of imprisonment in Portlaoise, that he had relied on it, that he had not been informed that he would be in jeopardy of extradition proceedings after his prison sentence. The High Court held that these circumstances, together with his family circumstances, were exceptional circumstances so as to render his extradition unjust, oppressive or invidious. The learned trial judge did not find it necessary to apply the issue of credit being granted in Northern Ireland for the time served in Portlaoise.

Circumstances
The specific circumstances considered by the learned High Court Judge were:-
1. The decision in 1981 regarding prosecution for the Crumlin Road escape and related offences.
2. The situation in 1981 regarding the plaintiff’s extradition on the murder and related convictions.
3. The developing law on the political offence exception.
4. The applicable law in determining when an offence is a political offence.
5. The concept of equality.
6. The plaintiff’s belief as a result of the fact that he was not informed that he would be in jeopardy of extradition after his prison sentence.
7. The family circumstances.
8. The issue of estoppel.
9. The issue of credit for sentences served.
In addition, these should be considered with counsel for the defendant’s submissions on:-
1. The seriousness of the offences.
2. The fact that the plaintiff’s own conduct contributed to the circumstances,e.g. his two attempts at escape from custody.
3. The term “exceptional circumstance” and that it was an inference too far to hold that the Northern Ireland authorities had made a final decision not to extradite.
1. The decision in 1981 regarding prosecution for the Crumlin Road escape
In analysing the decision of 1981, Geoghegan J. stated:-
“In a minute of the 29th July, 1981, from the Deputy Commissioner of the Garda Siochana to the Assistant Commissioner, Security and Intelligence Branch, it is noted as follows in relation to the escape of the prisoners from Crumlin Road prison:-
‘Proceedings could be taken under s. 3 of the Criminal Law (Jurisdiction) Act, 1976, if subjects are located in this jurisdiction or applications could be made for their extradition to Northern Ireland. In view of the contents of the final paragraph of Detective Superintendent McNeill’s report dated the 20th June, 1981, I would thank you to say which action the R.U.C. has requested.'”

The minute was replied to by Assistant Commissioner Ainsworth in a minute of August, 1981, in the following terms:-
“With reference to yours of the 2nd July, 1981, there is no point in going through the further exercise of extradition in these cases. It is proposed to deal with them under the Criminal Law (Jurisdiction) Act, 1976. Appropriate proofs have been solicited from the R.U.C. and they are in the course of preparation.”
Geoghegan J. continued:-
“From the tenor of these communications, it is perfectly obvious that there were on-going discussions between the Garda Siochana and the R.U.C. and it is quite clear that the Northern Ireland authorities decided against extradition in relation to the prison escape and opted for the procedure under the Criminal Law (Jurisdiction) Act, 1976. But if that is so, I think that it must necessarily follow that a decision was made at that time, presumably at a high level, not to seek extradition in relation to the original Northern Ireland offences for which the plaintiff had been convicted. If the Northern Ireland authorities had considered there was any possibility at all of obtaining extradition, that is the route which they surely would have followed. It would seem to me that at that stage even if, for some peculiar reason, extradition would not have been obtainable in respect of the prison escape offences but would have been obtainable in respect of the original Northern Ireland offences, extradition would have been sought in respect of those offences only. There would appear to have been no reason relating, for instance, to availability of witnesses or something of that kind which would have led to the decision to invoke the Criminal Law (Jurisdiction) Act, 1976, in respect of the prison escape offences. I infer that that procedure must have been adopted because of the perceived impossibility of obtaining extradition.”
The finding of fact by the learned trial judge, that there was a decision that there be a prosecution under the Act of 1976, was made from documents. The inference in the case that a final decision not to seek extradition was made in 1981 was based on documents and an analysis of the law. It was not based on oral evidence. Thus it is open to this Court on appeal to review the decision fully: Hay v. O’Grady [1992]1 I.R. 210. I agree with the decision of the learned trial judge insofar as it is clear from the documents and in light of the law in 1981 that a decision was made in 1981 not to seek the extradition then of the plaintiff on the murder and related offences but rather to proceed by way of the Act of 1976 for trial in Ireland for the offences relating to his escape in Northern Ireland.
The decision made in 1981 to proceed by way of the Act of 1976 to prosecute the plaintiff in Ireland for the offence and related offences of escape in Northern Ireland was a decision for the prosecuting authorities. They were entitled to make it. The plaintiff could have elected to be tried in Northern Ireland, but he did not. This decision was valid and is not impugned.
The consequence was the conviction in the Special Criminal Court and sentence on the 25th February, 1982, when the President of the Court stated in giving sentence:-
“In the case of Angelo Fusco, shooting with intent to prevent lawful apprehension, 10 years penal servitude; Count No. 17, production of a firearm, 8 years imprisonment; Count No. 18, using a firearm, 8 years imprisonment; Count No. 19, possession of a firearm, 8 years imprisonment and Count No. 20, escaping from lawful custody, 5 years imprisonment. All the sentences concurrent and as from this date.”
An appeal in the Court of Criminal Appeal on the 7th February, 1983, was unsuccessful: The People (D.P.P.) v. Robert Campbell (1983) 2 Frewen 131.
A decision in 1981 to proceed to prosecute the charges relating to the escape from Crumlin Road prison under the Act of 1976 is a separate issue and not a bar of itself to a later application for rendition in relation to different offences, such as the convictions in issue.
2. The decision in 1981 regarding the respondent’s extradition
In 1981, it is apparent that a decision was made by the authorities in Ireland and Northern Ireland not to process the extradition of the plaintiff at that time. This is clear from Assistant Commission Ainsworth’s minute. The words:-
“there is no point going through the further exercise of extradition in these cases”
relate to the then existing situation. It is a reasonable inference that such a decision was made in light of the law at that time on the term “political offence”. It was a reasonable decision for prosecuting authorities to make. A reasonable choice of action was made. However, it appears that no formal decision was made to abandon the possibility of extradition in the future. Nor was any formal communication made to the plaintiff on the matter. No order was made in any court on the issue. At the time the decision was not to pursue the extradition route, but a different route was taken on different (escape) offences. The plaintiff was consequently prosecuted in the State on the escape offences.
The learned High Court Judge found that the Northern Ireland authorities decided against extradition and opted for the procedure under the Act of 1976. He reasoned that this was done because of the perceived impossibility of obtaining extradition. Counsel for the plaintiff argued that the authorities deliberately abandoned the extradition option in 1981, even though the option was exercised in a comparable case: McGlinchey v. Wren [1982] I.R. 54. He submitted that this deliberate abandonment created a form of estoppel or legitimate expectation.
Taking the submissions broadly, in the first instance, it is clear that the Northern Ireland authorities decided not to pursue the extradition route regarding certain offences including those offences the subject of this application and it is reasonable to infer that this was because of the perceived impossibility of obtaining extradition orders at that time because of the interpretation at common law of the term “political offence”. However, the decision as inferred from the documents does not establish an abandonment of the process of extradition, that the decision was irrevocable. It was indeed an inference too far to hold that the Northern Ireland authorities had made a final decision not to extradite. The decisions at the time were, (a) on one set of offences to prosecute by the Act of 1976 route, and (b) on the other set of offences not to pursue the process of extradition. These decisions do not exclude the possibility of a different decision at a later time on the convictions relating to murderetc. An analogy is that if a witness was missing at one time and the prosecutor decided not to pursue the prosecution, then, if within reasonable circumstances the witness was found the prosecutor could at that time then proceed with the prosecution. Thus, in the analogy, and in this case, the decision at a particular time not to pursue the extradition route may not be an abandonment of a prosecution, an estoppel, or create a legitimate expectation. The whole circumstances must be considered. In this case, from the documents and in light of the law, it is clear that a decision was made in 1981 not to proceed then with an extradition application in relation to the convictions for murderetc. This position did not bar a later application for extradition. No long term order or public statement was made. No communication express or implied was made to the plaintiff. The letters discovered were not then in the public domain.
3. The developing law on the political offence exception
The law on the political offence exception has developed in Ireland over the last three decades. Statute law is to be found in s. 50 of the Extradition Act, 1965, which states:-
“(1) A person arrested under this Part shall be released if the High Court or the Minister so directs in accordance with this section.
(2) A direction under this section may be given by the High Court where the Court is of opinion that –
(a) the offence to which the warrant relates is –
(i) a political offence or an offence connected with a political offence, or . . .”
The section did not define what was either a political offence or an offence connected with a political offence.
In 1980 and 1981, if a warrant for rendition to Northern Ireland was received and an order for delivery at point of departure made by the District Court of an offence of the type in issue in this case then the persons sought could and did bring applications under s. 50 on the ground that the offence was a political offence or an offence connected with a political offence.
The relevant case law was to be found in Bourke v. Attorney General [1972] I.R. 36, where the Supreme Court held that the terms of s. 50(2) were mandatory, that the High Court, once it held an opinion specified in the sub-section, must direct the release of the person arrested, that it was not necessary for an offence to be of a political nature in order to be capable of being “connected with a political offence” within the meaning of s. 50(2) of the Act of 1965, that the plaintiff’s offence of assisting a spy to escape from prison was not a political offence, however, it was “connected to”a political offence. Ã“ DÃ¡laigh C.J. analysed the concept of a political offence and stated,inter alia at p. 61:-
“A distinction can be drawn between ‘purely’ political offences which, of their very nature, are political (e.g. treason, sedition, espionage) and ‘relative’ political offences (e.g. murder) committed in the course of a rebellion.”
He held that the offence of assisting a fellow prisoner Blake to escape was not in itself a political offence. However, in light of Blake’s offence to escape (a political offence) it was an offence connected with a political offence and so the plaintiff would not be extradited.
In The State (Magee) v. O’Rourke [1971] I.R. 205, the applicant was sought for offences including housebreaking, no insurance for a motor vehicle, malicious damage and assault. The applicant stated that he had been concerned in the preparation of an armed I.R.A. raid on Hollywood military barracks, he claimed there were substantial grounds for believing that he would be prosecuted for a political offence or for an offence connected with a political offence within the meaning of section 50(2)(b). A majority of the Supreme Court accepted that there were substantial grounds for believing that Magee would be charged with offences arising out of the Hollywood raid if he were to be extradited to Northern Ireland and extradition was refused.
Extradition requests thereafter in the 1970s relating to paramilitary offences failed, on the grounds that they were political offences or offences connected with political offences. Thus, in Burns v. The Attorney General (Unreported, Finlay J., High Court, 4th February, 1974) Fr. Burns was sought on charges arising under the Explosive Substances Act, 1883. He was a priest who had knowingly stored explosives for the I.R.A. Finlay J. held that the offences were political:-
“It is undoubtedly true that the safekeeping of these explosives in the circumstances . . . was connected with their ultimate use and could be said to be connected with either murder or sabotage. If, however, either murder or sabotage by an organisation such as the I.R.A. is to be a political offence, it seems to me inevitably to follow that the safekeeping of explosives for use in such murder or sabotage is also a political offence. The phrase ‘political offence’ is not defined in the Act, but some assistance is to be derived from s. 3 which provides that political offence does not include the taking or attempted taking of the life of a Head of State or a member of his family. This exclusion raises to my mind the necessary inference that were it not for the exclusion there is at least one type of murder or attempted murder which could or would be a political offence and it is clear, therefore, that one starts on the basis that a political offence is not necessarily a separate of fence from what is described as an ordinary criminal offence.”
In McLoughlin v. The Attorney General (Unreported, Finlay P., High Court, 20th December, 1974) a woman sought by the authorities in Northern Ireland who had allegedly lured four British army personnel to their death was not extradited. Finlay P. stated:-
“There can be no doubt that even murder, and even such a dastardly murder as this . . . if carried on by or on behalf of an organisation which seeks to overthrow the Government of its country by force is a political offence.”
As a result of precedent, cases seeking release under s. 50 were not contested often in court where the application was in relation to offences stated to be for or connected to a paramilitary organisation. However, a possibility of a change was indicated in Hanlon v. Fleming [1981] I.R. 489, where Henchy J. stated, in relation to a statement that the explosive material had been intended for use by the I.R.A., that it would not necessarily follow:-
“. . . that the accused would be exempt from extradition on the ground that the offence charged 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.”
The law commenced changing with the case McGlinchey v. Wren [1982] I.R. 54. O’Higgins C.J included,obiter dicta, a new interpretation of “political offence”in his judgment stating at p. 159:-
“The judicial authorities on the scope of such offences have been rendered obsolete in many respects by the fact that modern terrorist violence, whether undertaken by military or paramilitary organisations, or by individuals or groups of individuals, is often the antithesis of what could reasonably be regarded as political, either in itself or in its connections.”
In this case in the early hours of the 28th March, 1977, at Toomebridge in Northern Ireland an elderly grandmother was riddled with bullets and killed when her house was attacked by people firing armalite rifles from a moving car. In the Supreme Court counsel for McGlinchey conceded that this murder could not be regarded as a”political offence” or an “offence connected with a political offence”. Thus, the judgment on this issue wasobiter dicta.
Counsel for the plaintiff in this case argued that the facts of the offences the basis for the warrants in issue were uncannily similar to those inMcGlinchey. That is not the case as is apparent from even the short description of the facts.
The words of O’Higgins C.J. were followed in later cases: see McMahon v. Leahy [1984] I.R. 525 (the High Court), Shannon v. Ireland [1984] I.R. 548. The analysis was further developed and in instances took a different approach: see Quinn v. Wren [1985] I.R. 322, Maguire v. Keane [1986] I.L.R.M. 235 and Russell v. Fanning [1988] I.R. 505.
The law continued to be amended by the Extradition (European Convention on the Suppression of Terrorism) Act, 1987. Certain offences were stated not to be regarded as political offences, for example, an offence involving the use of an explosive or an automatic firearm, if such
use endangers persons. Also, s. 50(2)(bbb) was inserted by Extradition (Amendment) Act, 1987, section 5.
The common law analysis of the term “political offence” was redrawn in Finucane v. McMahon [1990] 1 I.R. 165. The Extradition (European Convention on the suppression of Terrorism) Act, 1987, was not applicable to that case. However, Walsh J. stated at p. 213:-
“My object in referring to this recent legislation is to indicate that a distinction has been drawn between what is strictly regarded as terrorism and what is regarded as politically motivated offences or offences connected with political offences. Putting it briefly, political offences are defined as offences usually, though not necessarily, consisting of violent crime directed at securing a change in the political order. The effect of the adoption of the Council of Europe Convention was to enable derogation from what the Council of Europe in the report accompanying the Convention called ‘the traditional principle according to which the refusal to extradite is obligatory in political matters’ in respect of certain acts of violence. It is thus clear that the use of violence does not in itself take an act out of the political exemption, but particular forms of violence such as those already indicated will be grounds for abating the political exemption. This will not effect any change in the distinction between pure political offences and relative political offences, as defined by Ã“ DÃ¡laigh C.J. in Bourke v. Attorney General [1972] I.R. 36.”
Quinn v. Wren [1985] I.R. 322 was affirmed, Russell v. Fanning [1988] I.R. 505 was not followed, The State (Magee) v. O’Rourke [1971] I.R. 205 was considered and Bourke v. Attorney General [1972] I.R. 36 was applied. The judgment was given by Walsh J., with which two judges agreed and with which two judges determined that, having regard to the fundamental nature of the issues which arise in extradition cases, the importance of precedent in the system of jurisprudence of the Court and the conclusions reached by the majority of the Court, the principles established should thenceforth be applied in all cases in which the political exemption is in issue.
It is this law, statutory and common law, in relation to the political offence exemption that the Court applies. In light of the law it was conceded by the defendant in the High Court that the political offence exemption would apply to the offences in warrants”C” and “E” and in relation to those offences the plaintiff was ordered to be released under s. 50 of the Extradition Act. Of the remaining warrants the High Court stated:-

“In relation to the offences contained in the remaining warrants, that is to say warrants “A”, “B” and “D”,it is accepted by the [respondent] that the ‘political offence’ exemption would not apply but the [respondent] nevertheless, seeks his release . . .”
He seeks his release under s. 50(2)(bbb). The abatement of the political offence exemption in Extradition (European Convention on the Suppression of Terrorism) Act, 1987, has been accepted.
4. The applicable law to determine when an offence is a political offence.
The applicable law is the law when the application for extradition has to be considered. In Bourke v. Attorney General [1972] I.R. 36, Ã“ DÃ¡laigh C.J. at p. 59 stated:-
“Cassels J., who delivered the first judgment in Kolczynski’s Case, said at p.549 of the report:- ‘The words ‘offence of a political character’ must always be considered according to the circumstances existing at the time when they have to be considered’.”
He also stated at p.55:-
“The non-extradition of political offenders is primarily based on the fact that the criminal nature of the act is relative, depending on the peculiar conditions obtaining in the places and institutions in which the political offences were committed.”
The law was restated by Finlay C.J. in Magee v. Culligan [1992] 1 I.R. 223 at 273:-
“The right of the plaintiff, as of every other citizen, concerning the question of his delivery into another State for the purpose of serving a sentence lawfully imposed on him in that State, was, the Court is satisfied, a right at any given time to proper, due and fair procedures concerning an investigation of the validity of the warrant in respect of which he is delivered, and to a fair, proper and due inquiry into the protections applicable in law,within the State at the time of the application for his delivery, which may afford him a protection arising from the concept of a political offence or from any other of the concepts appropriate to prevent such a delivery.” [The emphasis is mine].
The application for delivery was made in 1992 so the time to consider the meaning of “political offence” or “connected with a political offence” in relation to the plaintiff’s rendition is the current law.
The learned trial judge stated at p. 479:-
“Nor can the person sought to be extradited be heard to argue that his position cannot be altered or disimproved by reason of a change in the law.”
I agree. The applicable law is the current law, the plaintiff’s case is determined thereon. He cannot rely on the older law or the fact that it changed.
5. Equality
In determining whether there are exceptional circumstances which would render it unjust, oppressive or invidious to deliver up the plaintiff the concept of equality is relevant. The right to equality was a successful argument in preventing extradition in McMahon v. Leahy [1984] I.R. 525. In that case the plaintiff (after conviction) had escaped from custody in Northern Ireland. Four co-escapers from custody had been arrested in 1975, in the State on warrants reciting their escapes seeking their rendition to Northern Ireland and each had obtained an order for his release in the High Court on the grounds that his escape in Northern Ireland was a political offence or an offence connected with a political offence. The authorities had been represented by counsel who were instructed by the Chief State Solicitor. In two of these actions the claim of the escaper to exemption from extradition on the ground of the political nature of the escape was not opposed and in the other two actions the claim of the escaper if opposed was opposed unsuccessfully. In 1983, the plaintiff was arrested on foot of a warrant from Northern Ireland citing the escape offences and the District Court made an order that he be delivered into custody of the Northern Ireland authorities. The circumstances of the plaintiff’s escape in Northern Ireland did not differ materially from the escapes of the other four escapers. The plaintiff sought release pursuant to s. 50, that the offence was a”political offence” or “connected to a political offence”.It was held that the declaration in Article 40.1 of the Constitution that all citizens as human persons shall be held equal before the law was a relevant factor in determining the plaintiff’s appeal in view of the fact that the Chief State Solicitor had either acquiesced in or had opposed unsuccessfully the grant of a release under s. 50(1) of the Act of 1965 to each of the other four escapers on the ground that his escape from the courthouse was a political offence or an offence connected to a political offence. In the special circumstances the court would not permit the defendant (who represented the State) to controvert the plaintiff’s claim for release under section 50.
Similar “special circumstances” could not be and were not argued in this case as being part of the “exceptional circumstances” under section 50(2)(bbb). The plaintiff’s co-escapers in Belfast included Robert Campbell, Paul Magee, Joseph Doherty, Anthony Sloan, Gerard Sloan, Michael McKee and Michael Ryan. Before the Special Criminal Court on 25th February, 1982, and similarly convicted and sentenced were co-escapers Michael McKee, Anthony Sloan and Paul Magee. There is no question of the plaintiff suffering any unequal treatment.
6. The respondent’s belief
The learned trial judge found that:-
“There is no evidence or suggestion that it was ever intimated, or still less explained to him, that he was in jeopardy of extradition in respect of the original offences at the end of his prison terms in Portlaoise. It would seem reasonable to accept that having regard to the decision in 1982 by the Northern Ireland authorities to invoke the Criminal Law (Jurisdiction) Act, 1976, in respect of the Crumlin Road prison escapes rather than seek extradition in respect of those offences and/or the original offences for which the plaintiff was convicted, the plaintiff would have assumed that once he was finished with prison terms in Portlaoise he was in no danger of being extradited to Northern Ireland. He has sworn on affidavit that that was his belief and has given his reasons for that belief which, in my view, are perfectly credible reasons. It would have been a simple matter to have indicated to the plaintiff at the time that the Criminal Law (Jurisdiction) Act, 1976, was being invoked that at the end of any prison term which he might receive in respect of the escapes, he could be liable to extradition to Northern Ireland in respect of the original offences. Far from there being such a simple communication, the conduct of the Northern Ireland authorities at that time gave rise to an implied communication to the plaintiff to the opposite effect.
I think it is clear from what I have said, that I am not, of course, holding that the invoking of the Criminal Law (Jurisdiction) Act, 1976, in respect of the prison escape offencesper se precluded an extradition application in respect of the original offences. Indeed, in other cases there could well be circumstances where it would necessary to invoke the Criminal Law (Jurisdiction) Act, 1976, to achieve justice quite apart from any problems about obtaining extradition. Therefore in no sense am I holding that an extradition application could not be made. But what I am saying is that it would be oppressive and unjust to accede to it in circumstances where the conduct of the Northern Ireland authorities could reasonably have indicated to the plaintiff that he was not in jeopardy of extradition being sought.”
The learned trial judge slipped into error in this analysis. An application to seek extradition by authorities need not be indicated in advance. Nor need they explain that the plaintiff might be in future jeopardy of extradition. Indeed, it would be most unusual in these quasi-criminal proceedings to forewarn of warrants. It may well have been that the plaintiff believed that he was not in danger of being extradited, but that is not a factor in itself to stop his later extradition. The events of the 1980s, including the convictions and warrants in Northern Ireland, the changing case law, changing statutes and the fate of his co-escapers are all relevant factors.
It is open to a State to decide to prosecute offences in one jurisdiction prior to moving for extradition. These are criminal and quasi-criminal cases and the fact that one case precedes the other does not bar the latter, unless the procedure is unfair so as to breach the Constitution or establish a statutory defence. The choiceper se to proceed by the Act of 1976 does not bar a later application for rendition.
A subjective belief by the plaintiff would not bar the extradition application nor does an objective beliefper se that there could not be a later application for extradition on foot of the convictions. There has to be “unjust”,”oppressive”, or”invidious” factors.
The learned trial judge held:-
“. . . what I am saying is that it would be oppressive and unjust to accede to [the extradition application] in circumstances where the conduct of the Northern Ireland authorities could reasonably have indicated to the plaintiff that he was not in jeopardy of extradition being sought.”
There was no duty on the Northern Ireland authorities to indicate to the plaintiff whether or not they would seek extradition on the convictions at a later date. On the facts of this case it is probable that in 1981/1982 the Northern Ireland authorities had decided not to proceed then with the application. But it was not an abandonment of the right. The situation was volatile. It is not realistic to require the foreign State to inform the fugitive of its intent.
This is the kernel of the High Court judgment, that the Northern Ireland authorities should have informed the plaintiff that they had not made a final decision in relation to rendition, and was an error. This kernel was then layered upon with the other circumstances. All the other circumstances found by the High Court were of lesser importance. Consequently, the lynch pin of the judgment was erroneous.
7. Family circumstances
The family circumstances in this case are relevant. However, they are not of themselves “exceptional circumstances” so as to enable the invocation of s. 50(2)(bbb). They can be taken into account in determining other “circumstances”.
8. Estoppel
The learned High Court Judge stated:-
“I know of no principle of law to the effect that a decision not to seek extradition is irrevocable once made.”
I agree, the decision not to prosecute in 1981 does not of itself estop an application for extradition at a later date. The circumstances, the facts and law, of each case have to be considered.
The concept of estoppel is akin in this case to the arguments as to retrospective legislation. That issue was determined in Magee v. Culligan [1992] 1 I.R. 223. Finlay C.J. stated at p. 272:-
“Section 3 merely makes a statutory amendment to what was a developing jurisdiction concerning the definition of a political offence for the purposes of the Extradition Act, 1965, as amended. It does not create any offence or any infringement of the law in our jurisdiction.
The Court is satisfied that the provisions of Article 15, s. 5 of the Constitution are an expressed and unambiguous prohibition against the enactment of retrospective laws declaring acts to be an infringement of the law, whether of the civil or the criminal law. It does not contain any general prohibition on retrospection of legislation, nor can it be any means interpreted as a general prohibition of that description.”
9. Credit for sentence served
There was evidence in the High Court that full credit would be given for the time served on the Portlaoise sentences relating to the Belfast escape offences. This is a relevant factor. It is part of the circumstances of the case.
The learned trial judge did not find it necessary to consider as a relevant factor the issue of whether or not there would be credit to the plaintiff for his period of time spent in Portlaoise prison relating to the Crumlin Road escapes. However, he held that he would have been prepared to accept the affidavit of Peter Neville-Bell: “as sufficient evidence that full credit would be given for the Portlaoise sentence relating to the Belfast prison escape offences.”
He held further:-
“I am aware that the propriety of exacting undertakings from a foreign Government has been queried by individual members of the Supreme Court, notably by Ã“ DÃ¡laigh C.J. and more recently by McCarthy J. but I do not regard the affidavit of Mr. Neville-Bell as constituting an undertaking but rather as providing information as to the intentions of the Secretary of State for Northern Ireland. Having regard to the long history of co-operation in countering terrorism between the authorities in both jurisdictions, I consider that the Court should assume that the intention of the Secretary of State, as conveyed, would in fact be carried out and, in my view, that would be sufficient to oust the application of para. (bbb) if based solely on any alleged possibility of lack of credit for service in Portlaoise prison.”
I agree. The Court is entitled to rely on the evidence in the affidavit, which is relevant to the circumstances. The undesirability of accepting undertakings was set out by Ã“ DÃ¡laigh C.J. in Bourke v. Attorney General [1972] I.R. 36 at p.64. However, in Sloan v. Culligan [1992] 1 I.R. 223 at p. 267 to 268 evidence was accepted of credit to be given in Northern Ireland for time spent on remand in Northern Ireland and time spent in prison serving the sentences imposed by the Special Criminal Court on the 25th February, 1982. As a consequence there was no remaining sentence to serve in Northern Ireland and an order for delivery was not made as to do so would be a nullity, a futile order. Similar evidence has been deemed acceptable by the courts in other areas of the law: see C.K. v. C.K. [1993] I.L.R.M. 534.
The evidence of the credit to be afforded in this case is a relevant factor in considering the circumstances so as to determine whether “exceptional circumstances” exist, whether it would be”unjust”, “oppressive” or “invidious” for the plaintiff to be returned to Northern Ireland.
Seriousness of the offences
The specific issue of the “seriousness of the offences”was not dealt with by the learned trial judge in his judgment. The issue before the High Court and this Court is the interpretation and application of s. 50(2)(bbb). The section is clearly drafted and the terms plain. The concept of the “seriousness of the offence”is not explicitly a part of section 50(2)(bbb). The terms used therein are”lapse of time”, “exceptional circumstances”,”unjust”, “oppressive”and “invidious”.
The nature of an offence in rendition cases has been analysed previously, for example, to determine whether it was a political offence or connected to a political offence. The nature of the circumstances have to be determined under s. 50(2)(bbb) to see if they are exceptional circumstances.
Section 50(2)(bbb) is an exemption, for the benefit of the applying party, the plaintiff in this case. It is in effect a defence for the plaintiff. It should be construed strictly. It should not be stood on its head.
The concept of “seriousness of the offence” has not been part of the historical approach to analysing an offence in issue on an extradition warrant. The terms “political offence” or an offence”connected with a political offence” remain relevant although they have been abated by the Act of 1987. But this abatement has been in the context of terrorism, not in the context of seriousness (except in s. 3(a)(iii) which refers to a serious offence involving an attack against the life, physical integrity or liberty of an internationally protected person). The abatement is to cover what are universally regarded as acts of terrorism such as s. 3(3)(a)(v) which refers to offences involving the use of an explosive or an automatic firearm, if such use endangers persons. In fact the two warrants excluded, and for which the plaintiff’s release was ordered by the High Court, relate to offences which many would regard as serious.
However, the specific terms of s. 50(2)(bbb) – lapse of time, exceptional circumstances, unjust, oppressive, invidious – require the Court to look at all the circumstances. In determining the circumstances the warrants are relevant. Thus, the fact that the warrants are for convictions is relevant, it reflects specifically on the issue of prejudice and a trial. The length of sentence remaining to be served may be important, if it did not exceed the”concurrent”sentence served in Portlaoise the plaintiff would be entitled to an order for release. Thus the Court weighs the convictions in determining the exceptional circumstances.
Counsel for the plaintiff conceded that the offences were serious. Of course he was right to so do. I am satisfied that nothing turns on this fact alone. Were it the only argument in the defendant’s case it would fail. Just as a court will look at the nature of the offences (to determine whether they are a political offence or an offence connected to a political offence) so too under s. 50(2)(bbb) the court will analyse the circumstances of the warrants to see if they give rise to exceptional circumstances so as to render it unjust, oppressive or invidious to order the rendition of the plaintiff. In doing so the section should be construed strictly. The facts of the offences, the convictions, the sentences and the warrants are part of the circumstances of the case. The greater or lesser seriousness of offences may be a constituent part of the analysis of the circumstances relevant to the specific terms of s. 50(2)(bbb). It was not a part of the High Court judgment. Nor is it a part of my analysis of the facts and law in this case.
Respondent’s own conduct contributed to the circumstances
It is clear that the plaintiff’s own conduct contributed to the circumstances. He escaped from Crumlin Road prison prior to his conviction and sentence on the murder and related matters. He was sentenced by the Special Criminal Court to serve a sentence for that escape and related offences. He then attempted to escape from Portlaoise and received a further sentence. These acts of his delayed his serving the sentences for the original convictions and sentences.
Inference too far
I am satisfied, for the reasons stated earlier, that in the circumstances of the case it was an inference too far to determine that the Northern Ireland authorities had made an irrevocable decision not to extradite in 1981.
Decision
As analysed there is no one “circumstance” which, taken with the lapse of time, renders the plaintiff’s case such that s. 50(2)(bbb) applies to him. Thus the circumstances as a whole have to be considered.
While the burden on the plaintiff is that of the balance of probabilities, he has to prove that by reason of the lapse of time it would be “unjust”, “oppressive” or “invidious”to deliver him up. These are strong words.
No question of prejudice in a future trial arises: see Ellis v. O’Dea (No. 2) [1991] 1 I.R. 251. The warrants relate to convictions.
The application for rendition was made at the conclusion of sentences he was serving from 1982 to 1992. This is not a case where the plaintiff lived freely at large for a long time prior to the seeking of the application by the authorities. The plaintiff was in prison on foot of convictions, which circumstance arose because of his own actions.
The prosecution decision to proceed by way of the Act of 1976 in 1981 on the escape offences was not an exceptional circumstance, nor was the decision not to process the application for extradition on the murder and other offences in 1981 or 1982.
These decisions did not exclude the possibility of a different decision at a later time on the convictions relating to murderetc. It was an inference too far to hold that the Northern Ireland authorities had made a final irrevocable decision not to seek rendition. The developing law on the political offence exemption cannot be called in aid by the plaintiff by way of arguing that in 1981/1982 he would have benefited from the common law interpretation of the terms “political offence” or “connected with a political offence”. The applicable law is the current law. Indeed the plaintiff is seeking to rely on current law, an exemption legislated into law in 1987. The plaintiff has no case that he is being treated unjustly, oppressively or invidiously by comparison to his co-escapers or co-accused. There has been no discrimination. Nor is there similarity to the facts of McGlinchey v. Wren [1982] I.R. 54.
The plaintiff’s belief that he would not be extradited is not, and cannot be in the circumstances (and where he was serving a prison term and the application is made at the completion of the term) an exceptional circumstance. It is a normal practice to seek extradition of a prisoner at the termination of a prison sentence. There is neither injustice, nor oppression nor invidious behaviour in a State not giving notice in advance of an extradition application. The authorities were not obliged to explain that the plaintiff might be in jeopardy of future rendition. In the circumstances, the establishment of the plaintiff’s family in Kerry while relevant is not an exceptional circumstance either.
The evidence that the plaintiff would receive credit in Northern Ireland for the years he has served in the State, on foot of the sentences for the escape offences in Northern Ireland, may be taken into account in analysing the circumstances of the case.
In considering the nature of the warrants the fact that the rendition is sought on warrants arising on convictions places a more difficult burden on the plaintiff to prove that is would be unjust, oppressive or invidious for him to serve that sentence.
Individually none of these factors is an exceptional circumstance, nor taken together do they create a pattern of exceptional circumstances.
For the reasons stated the circumstances are not such as to render them “exceptional” within the terms of s. 50(2)(bbb). I would allow the appeal of the defendant on this issue.
As to the other matters raised I am in agreement with the judgment of the Chief Justice.

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

Barron J.
I also agree with the Chief Justice.

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