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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 9 (16 March 1989) URL: http://www.bailii.org/ie/cases/IEHC/1989/9.html Cite as: [1989] IEHC 9 |
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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
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
Judgment of Mr. Justice Gannon delivered the 16th day of March 1989.
This application of Paul Anthony Kane is to have 17 Orders of the respondent District Justice made on the 5th of July 1988 brought to the High Court to be quashed upon the grounds set out in the Order for Judicial Review made by Johnson, J. on the 19th of July 1988. All the Orders of the respondent District Justice were made under the provisions of the Extradition Act, 1965 for the committal of the applicant and his delivery at a point of departure into the custody of a member of the Royal Ulster Constabulary for conveyance to the Court in Belfast from which warrants for his arrest had issued. The execution of these warrants in this State had been authorised by the respondent Deputy Commissioner McMahon of the Garda Siochana and his authorisation was endorsed on the warrants. The grounds specified in the Order of Johnson, J. are
(1) that the District Justice did not have before him any, or any sufficient, evidence that the Minister for Justice had considered each of the warrants for the extradition of the applicant pursuant to the requirements of section 44 of the Extradition Act, 1965 before their endorsement;
(2) that such consideration by the Minister, being a condition precedent to the endorsement of the warrants, the District Justice exceeded his jurisdiction in making his Orders if the Minister had not considered the warrants or without evidence that the Minister had considered the warrants. There appear to be two net questions for the determination of this Court which may be resolved only by interpreting the relevant provisions of the Extradition Act of 1965 as expressed therein or by necessary implication in accordance with the nature and purpose of the legislation. These are:(1) Does the statute require that the Minister for Justice give consideration to each and every warrant presented from the requesting jurisdiction before its endorsement by the Commissioner of the Garda Siochana?(2) Is it an essential proof in evidence before the District Justice upon an application for his committal Order for delivery at a point of departure that the Minister did give his consideration to each of the presented warrants before its endorsement by the Commissioner of the Garda Siochana?
The jurisdiction of the District Justice is limited as set out in sections 47, 48 and 49 of the 1965 Act and to an extent the proofs are facilitated so far as set out in section 55 of the Act. The functions of the District Justice are judicial but of a limited nature. They are complementary to the powers and functions of an executive nature vested in and required to be exercised by the Minister for Justice and by the Commissioner of the Garda Siochana. Extradition of its nature is basically an executive function following the request by one State in the course of the exercise of the administration of justice within its jurisdiction for the aid of the other State wherein a person may be who happens to be accused of breach of the Criminal Law of the requesting State. It is a procedure by which each State respects the jurisdiction and the laws of the other. The function of the District Justice appears to be to examine the procedural matters relative to the preliminary stages prior to trial. This appears to be a function particularly appropriate to the office of the District Justice having regard to the statutory functions he performs in relation to trials on criminal matters. In this sense it is complementary to the executive aspect of jurisdiction but, while of a judicial nature, it does not require any judgment on any substantial issue of law or fact relative to the criminal charges beyond their correspondence with the laws of this country. His functions are summarised by Walsh, J. in his judgment in The State (Holmes) –v Furlong 1967 I.R. 210 at page 223 as quoted by the President in his judgment herein.
In my opinion the statutory provisions in the Extradition Act which prescribe for the District Justice the duties and functions which he must discharge and perform cast no obligation upon him to enquire whether the Minister for Justice has given any consideration to the warrant presented for backing before its endorsement. These statutory provisions do not cast any duty or obligation on any other person to present to the District Justice evidence of whether or not the Minister gave consideration to the warrants presented for backing. A duty of that nature requiring such evidence would have to be explicitly stated as it would involve an inquiry of a supervisory nature by the judiciary into the performance of a function of the executive. The respondent District Justice in my opinion did not act in excess of his jurisdiction in proceeding without evidence as to what the Minister for Justice did or did not do, and the Orders made by the District Justice cannot therefore be set aside on this ground.
The other ground advanced for condemning the Orders of the respondent District Justice is that the proceedings before him were invalid because they depended for their validity in the exercise of the jurisdiction of the District Court upon the previous consideration by the Minister for Justice of the warrants before their endorsement. It was argued that section 44 implies that when a warrant has been endorsed it would then be too late for the Minister or for the High Court to give the prescribed direction in any of the three circumstances listed at (a), (b) and (c) of subsection (2) of section 44. Section 44 is as follows:
"44. (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 Minster 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 criminal law."
It seems to me that the circumstances envisaged in that subsection if not known to or recognized by the Minister can be raised by the person to whom the warrant relates by application to the High Court pursuant to section 50 of the Act. Section 50 is as follows:
"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 -
(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(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
(4) A direction under this section may be given by the Minister on any of the grounds set out in paragraph (a) or (b) of subsection (2)."
The person named or described in the warrant as referred to in subsection (2) of section 50 and in subsection (2) of section 44 is the person most likely to be in a position to know, and to be able to offer evidence of, circumstances which would come within the terms of the exceptions prescribed in subsection (2) of section 44 and subsection (2) of section 50 of the Act. The Minister might not have, nor be in a position to obtain, knowledge of such circumstances. There is nothing in the Act by which the Oireachtas expressly imposed on the Minister a duty to make inquiry or to seek evidence of circumstances which would come within the ambit of these exceptions before the endorsing of the warrant by the Commissioner of the Garda Siochana.
It seems to me that the Oireachtas gave to the Minster a power to intervene which is consistent with his executive authority, but did not impose on him any investigative duty which more properly is reserved to the Courts. The statute has preserved a balance between the exercise of the executive function of the State and the judicial function. By sections 45 to section 50 inclusive the prompt access to the Courts ensures suitable means and opportunity for protecting the constitutional rights of the person whose extradition is sought. These safeguards of the constitutional rights are fully set out in the emuneration given in the judgment which the learned President has delivered with which I agree. I find no ground for setting aside the Orders of the District Justice and I consider this application should be refused.
