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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Kane v. McMahon & Anor [1989] IEHC 10 (16 March 1989) URL: http://www.bailii.org/ie/cases/IEHC/1989/10.html Cite as: [1989] IEHC 10 |
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THE HIGH COURT
(JUDICIAL REVIEW)
No. 221 J.R. 1988
BETWEEN:
PAUL ANTHONY KANE
Applicant
And
DEPUTY COMMISSIONER JOHN PAUL McMAHON AND DISTRICT JUSTICE SHIELDS
Respondents
AND
No.323 J. R.1988
BETWEEN:
OWEN GERARD CARRON
Applicant
And
DISTRICT JUSTICE JAMES P. GILVARRY
Respondent
Judgment of the President of the High Court delivered on the 16th day of March 1989
On the 5th day of July, 1988, District Justice Shields made 17 Orders for the delivery of the Applicant, Paul Anthony Kane, at Carrickarnon, border post in the County of Louth (being a convenient point of departure from the State) into the custody of a member of the Royal Ulster Constabulary, being the police force of the place where 17 warrants were issued by a Judicial Authority, to wit, Her Majesty's Crown Court at the Royal Courts of Justice, Chichester Street in Northern Ireland, for the conveyance of the said Applicant to the Royal Courts of Justice, Chichester Street, Belfast.
The said Orders were made by District Justice Shields pursuant to the provisions of Section 47 of the Extradition Act, 1965, (hereinafter referred to as "the Act"), the warrants having been endorsed for execution by Deputy Commissioner John Paul McMahon in accordance with the provisions of Section 43 (1) of "the Act".
By Order made by Mr. Justice Johnson on the 19th day of July 1988,- the said Applicant was granted leave to apply for an Order of Certiorari by way of an application for judicial review in respect of the said 17 Orders made by District Justice Shields on the 5th day of July 1988.The said leave was granted to the said Applicant on the grounds that:
(1) There was no or no sufficient evidence before the Court that the Minister for Justice had considered each of the warrants grounding the Orders in accordance with the provisions of Section 44 of the Extradition Act, 1965, and that
(2) The District Justice exceeded his jurisdiction in making the said orders the conditions precedent to the endorsement of the said warrants not being fulfilled or in the alternative there being no evidence that the said conditions precedent had been fulfilled.
A statement of opposition was filed by the Chief State Solicitor on the 3rd day of October 1988 on behalf of the said Deputy Commissioner John Paul McMahon and the said District Justice Shields.
On the 20th day of February, District Justice James P. Gilvarry made two Orders for the delivery of the second Applicant, Owen Gerard Carron, at Carrickarnon, Ravensdale, Dundalk, Co. Louth (being a convenient point of departure from the State) into the custody of a member of the Royal Ulster Constabulary, being the police: force of the place where two warrants were issued by a Judicial Authority, to wit, John C. Fyffe, Resident Magistrate, Petty Sessions District of Fermanagh, Northern Ireland, for the conveyance of the said second Applicant to the Petty Sessions District of Fermanagh, Northern Ireland.
The said Orders were made by District Justice Gilvarry, pursuant to the provisions of Section 47 of "the Act" the warrants having been endorsed for execution by Deputy Commissioner John Paul McMahon in accordance with the provisions of Section 43 (1) of "the Act".
By Order made by Mr. Justice Egan on the 7th day of November 1988 the said second Applicant was granted leave to apply for an Order of Certiorari by way of application for Judicial Review in respect of the said two Orders made by the said District Justice Gilvarry on the 20th day of February 1988.
The said leave was granted on the grounds that:
(a) The Minister for Justice did not decide whether or not the warrants should or should not be endorsed as required by Section 44 of the Extradition Act, 1965 and accordingly the District Court proceedings were brought without jurisdiction and in excess of jurisdiction and were premature.
(b) There was no or insufficient evidence that the Minister for Justice considered whether or not a direction should be given pursuant to Section 50 of the Extradition Act, 1965 and accordingly the Applicant should not be delivered unless and until such direction is considered by the Minister.
(c) There was no or insufficient evidence that the Minister for Justice considered whether or not the warrants herein should be endorsed for execution as required by Section 44 of the Extradition Act, 1965 and the learned District Justice thereby exceeded his jurisdiction, the said evidence being a necessary proof of compliance with the statutory requirement.
The Statement of Opposition was filed on behalf of the Respondent by the Chief State Solicitor on the 1st day of December 1988.
When the motions issued on behalf of each Applicant came before the Court, it was agreed that as the grounds relied on by both Applicants for the relief which they sought, namely, the quashing of the aforesaid orders were substantially the same the two motions should be heard together. These grounds were that -
(i) On their true construction the effect of the provisions of Section 43 and 44 of 'The Act', is that the Minister for Justice must consider each and every warrant issued by a Judicial Authority in a Country to which Part III of 'the Act' applies, before such warrant is endorsed by the Commissioner of the Garda Siochana, and
(ii) it is an essential proof in evidence before the District Justice upon an application for a Committal Order for delivery at a -point of departure that the Minister for Justice did give his consideration to each of the presented warrants before its endorsement by the Commissioner of the Garda Siochana.
Section 43 of 'the Act' provides that:
(1) Where
(a) A warrant has been issued by a Judicial Authority in a place in relation to which this part applies for the arrest of a person accused or convicted of an offence under the law of that place, being an indictable offence or an offence punishable on summary conviction by imprisonment for a maximum period of at least six months, and,
(b) On production of the warrant to the Commissioner of the Garda Siochana it appears to the Commissioner that the person named' or described therein may be found in the State, the Commissioner shall, subject to the provisions of this part, endorse the warrant for execution."
Section44 of 'the Act' provides that:
"(1) A warrant shall not be endorsed for execution under this part if the Minister or the High Court, on the question being referred to the Court by the Minister, directs in accordance with this Section that it shall not be so endorsed.
(2) A direction under this Section may be given where the Minister or the Court, as the case may be, is of opinion that the offence to which the warrant relates is -
(a) A political offence or an offence connected with a political offence, or(b) an offence under military law which is not an offence under ordinary criminal law, or(c) a revenue offence,
or that 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 law."
These Sections form part of the provisions of Part III of 'the Act', which by virtue of the terms of Section 41 thereof applies to each of the following places namely, Northern Ireland, England and Wales, Scotland, The Isle of Man and the Channel Islands.
As stated by Mr. Justice McCarthy in the course of his judgment in Shannon v. Fanning(1984 I.R. Page 569 at Page 598):
"That part of the Act was enacted following the decision of this Court (the Supreme Court) in The State (Quinn) v. Ryan in which the then relevant portion of the Petty Sessions (Ireland) Act, 1851 was held to be inconsistent with the Constitution. Part III of the Act of 1965, in effect, but with appropriate safeguards, replaced the condemned portion of the Petty Sessions Act. Its primary purpose is to provide a simple, efficient, but duly safeguarded method of sending individuals charged with criminal offences for trial in the place where the crime was committed, be it in Ireland or in the one of the territories specified in Part III. It was not enacted for the purpose of dealing with what are called political offences or political offenders; such are statutory exceptions to the ordinary provisions for the "extradition" of alleged offenders"
It is submitted on behalf of both Applicants herein that the true construction of Sections 43 and 44 of 'the Act' requires that the Minister for Justice consider each warrant issued by a Judicial Authority in a place in relation to which Part III of 'the Act' applies, that he must consider it before it is laid before the Commissioner of An Garda Siochana for endorsement and that such consideration by the Minister is a condition precedent to the exercise by the Commissioner of his statutory obligation to endorse the warrant for execution if it appears to him that the person named or described therein may be found in the State.
It is clear from the actual words used in Section 44 of 'the Act' that the said Section does not impose an obligation or duty on the Minister to consider each such warrant.The Section merely provides that a warrant "shall not be endorsed for execution under this part if the Minister or the High Court, on the question being referred to the Court by the Minister, directs in accordance with the Section that it shall not be endorsed".
This Section merely gives to the Minister
(a) The power to direct the Commissioner not to endorse the warrant if he, the Minister, is of opinion that the offence to which the warrant relates is -
"a political offence or an offence connected with a political offence, or an offence under military law which is not an offence under ordinary criminal law, or a revenue offence, or that there are substantial grounds 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 law, or
(b) The power to refer the question to the High Court.
This Section does not impose a duty on the Minister to consider each warrant for the purpose of deciding whether or not to issue such a direction or to refer the question to the High Court.
In the course of his judgment in McMahon .-v. Leahy (1984 I.R. 525) the then Chief Justice stated at 535 of the Report that:
"On the 4th February 1983 a warrant for the arrest of the Plaintiff was issued by a Judicial Authority in Northern Ireland in respect of a charge that, while he was a prisoner in lawful custody in a cell at the Courthouse in Newry, in the County of Down awaiting trial on a criminal charge he escaped contrary to common law. Having been so issued, the warrant was produced for endorsement to an Assistant Commissioner of the Garda Siochana in accordance with the provisions of Part III (Sections 41/55) of the Extradition Act, 1965 and was so endorsed. The warrant was subsequently executed by the arrest of the Plaintiff within the State on the 31st March 1983. The endorsement of such warrant for execution within the State is mandated by Part III if the warrant seeks the arrest of a person accused or convicted of an offence which complies with the provisions of Section 43 of the Act of 1965, unless a direction is given under Section 44 either by the Minister for Justice (or, on the question being referred by him to the High Court, by that Court) that the offence to which the warrant relates is a political offence or an offence connected with a political offence or is one which is otherwise excepted under the Section. No such direction issued or was sought in this case and accordingly, the warrant was so endorsed and was subsequently executed."
The Supreme Court did not appear to consider that it was necessary to seek such a direction prior to the endorsement of the warrant by the Assistant Commissioner. However, it is true that the point was not argued before the Court.
It is now submitted on behalf of the Applicants:
(1) That there is a constitutional obligation on all the organs of the State to respect and, as far as practicable, to defend and vindicate the personal rights of the citizen;
(2)That the provisions of Sections 43 and 44 should be construed by this Court so as to give effect to the fulfillment of such constitutional obligation by the Commissioner, the Minister, the District Justice and the High Court;
(3) That such construction requires that the Minister consider each warrant for the purpose of deciding whether or not to direct that the warrant be not endorsed or whether he should refer the question to the High Court;
(4) That the failure to so consider the warrants is a failure to protect and vindicate the personal rights of the applicants to liberty and not to be extradited save in accordance with law and is a deprivation of one of the safeguards provided by Section 44 of 'the Act';
(5) That the District Court failed in its obligations to the Applicants by failing to satisfy itself that the Minister had considered the warrants prior to their endorsement by the Assistant Commissioner and had not directed him in accordance with the provisions of Section 44 of 'the Act' not to endorse the warrant.
I accept that there is a constitutional obligation on the State and all the organs thereof to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen but do not accept that the fulfilment of this obligation requires that the provisions of Section 43 and Section 44 of 'the Act' be construed so as to impose on the Minister an obligation to consider- each warrant prior to its endorsement by the Commissioner. The Act as a whole and in particular Part III thereof must be considered for the purpose of determining whether the rights of the citizens are defended and vindicated, as far as practicable.
Section II of 'the Act' provides that:
" (l) 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 persons position may be prejudiced for any of these reasons."
Section 12 of 'the Act' provides that:
"Extradition shall not be granted for offences under military law which are not offences under ordinary law."
Section 13 of 'the Act' provides that:
"Extradition shall not be granted for revenue offences".
Part III of 'the Act' provides the following safeguards for persons whose extradition is sought to the places set forth in Section 41, including Northern Ireland.
1. A warrant shall not be endorsed for execution if the Minister or the High Court, on the question being referred to the Court by the Minister, directs in accordance with Section 44 of 'the Act' that it shall not be so endorsed. (Section 44).
2. The District Court shall not make an order if it appears to the
Court that the offence specified in the warrant does not correspond with any offence under the law of the State which is an indictable offence or is punishable on summary conviction by imprisonment by a maximum period of at least six months (Section 47 (2) ) .
3. 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 15 days from the date of the order. (Section 48(i)).
4. 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. (Section 48(ii)) .
5. The Court on making an order under Section 47, shall inform the person to whom it relates of its right to make such application and that he will not be delivered during the said while any such period of 15 days, except with his consent, or application is pending. (Section 48(iii)).
6. An application made to the High Court shall be treated as pending until any appeal in the proceedings is disposed of, and an appeal shall be treated as disposed of at the expiration of the time for appeal if no appeal is brought.
7.A person arrested under Part III of the Act shall be released if the High Court or the Minister so directs in accordance with Section 50 of 'the Act'. (Section 50(i)).
8. The High Court is empowered on an application made to it by it or on behalf of the person concerned or on the question being referred to the Court by the Minister, to grant the release of a person arrested under Part III of the Act if it 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 grounds 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
(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. J (Section 50(ii)).
In addition, the Minister may direct the release of a person arrested under Part III of 'the Act' on any of the grounds set out in paragraph (a) or' (b).(Section 50(iv)).
The duty of the District Justice in exercising the jurisdiction of the District Court in applications t o which Part III of 'the Act' applies is as set out by Mr. Justice Walsh in the course of his judgment in The State (Holmes). v. Furlong (1967 I.R. at Page 223).
"First of all, to be satisfied as to the validity of the warrant and other documents as prescribed by the Act and secondly, -to be satisfied. that the person who has - been' arrested is in fact the person named or described in the warrant. The District Justice should next satisfy himself that the offence in the warrant is one in respect of which he may make an order under the Act. If he is satisfied that he will make the order, he should then consider the question of the point of delivery and then make his order in accordance with the provisions of the Act. Having made the order he should then inform the prisoner of his right to bring an application of habeas corpus in the High Court and to inform him that he will not be delivered up during the period of 15 days except with his consent or while any such habeas corpus application is pending."
I am satisfied that the safeguards provided by Sections 44, 47, 48 and 50 of 'the Act' provide an adequate safeguard for persons arrested under- Part III of 'the Act' without the necessity for so construing the provisions of Section 43 and 44 of 'the Act' as to require the Minister to consider each warrant before its endorsement by the Commissioner. The collective effect of these provisions is to ensure that there is no failure to defend and vindicate the personal rights of the Applicants.
That being so, there is no obligation on a District Justice before making an order for the delivery at some convenient point of departure from the State of a person described in a warrant into the custody of a member of a police force of the place in which the warrant has been issued for conveyance to that place, to enquire as to whether or not the Minister has considered the warrants and whether he has directed that they shall not be endorsed or referred the question to the High Court.
I can find no reason why, in addition to the duties set outby Mr. Justice Walsh, the section should be construed so as to impose a duty further on the District Justice to inquire as to whether or not the Minister has given consideration to a warrant which had been presented to the Commissioner under Section 43. The Section clearly does not so specify. Nor can it be said that such a duty should be implied by virtue of the Constitution because, as already pointed out, the constitutional rights of an arrested person are amply safeguarded by other provisions of the Act.
It was also urged that a duty on the State to adduce evidence in District Court proceedings held under Section 47 could be implied from an amendment effected by Section 3(1)(c) of the Extradition (Amendment) Act, 1987 and that the failure to adduce the requisite evidence meant that the order- of the District Justice in this case was made without jurisdiction. The section relied on in the 1987 amending Act inserted a new sub-section (3) in Section 55 of the 1965 Act which provided that in proceedings in the District Court such as those with which we are here concerned it is not necessary to prove that a direction by the Minister under Section 44 was not given. This amendment, however, only affected warrants which had not been endorsed under Section 43 before the passing of the Act (on 14 December 1987), and it said that as the warrants in this case were in fact endorsed before the Act was passed the. State cannot obtain the benefit of the sub-section and that it is to be implied from it that in respect of these warrants the evidence referred to in the new sub-section should have been adduced. I do think that this conclusion is warranted. The 1965 Act as unamended cannot be construed to so as to impose an obligation on the State to prove that the Minister had given no direction under Section 44 and the amendment effected in 1987 was, in my opinion, merely declaratory of the existing law.
There are no grounds, therefore, for setting aside the ordersof the District Justices made in these cases and these applications should be refused.
