Aamand v Smithwick

• Jurisdiction: Ireland
• Judge: Finlay C.J
• Judgment Date: 01 January 1995
• Neutral Citation: 1994 WJSC-SC 2009
• Court: Supreme Court
• Date: 01 January 1995

1994 WJSC-SC 2009

THE SUPREME COURT

FINLAY C.J.

O'FLAHERTY J.

EGAN J.

BLAYNEY J.

DENHAM J.

36/94

AAMAND v. SMITHWICK

IN THE MATTER OF AN APPLICATION FOR AN ENQUIRY PURSUANT

TO THE PROVISIONS OF ARTICLE 40 OF THE CONSTITUTION

BETWEEN:

POUL JOHN AAMAND

Appellant/Applicant

and

JUDGE PETER SMITHWICK

First-named Respondent/

Respondent

and

THE ATTORNEY GENERAL

Second-named Respondent/

Respondent

Citations:

EXTRADITION ACT 1965 S29(1)

EUROPEAN CONVENTION ON EXTRADITION 1957 ART 7.2

EXTRADITION ACT 1965 S10

EXTRADITION ACT 1965 S8(1)

EXTRADITION ACT 1965 S8(3)

EXTRADITION ACT 1965 S8(4)

EXTRADITION ACT 1965 S8(5)

EXTRADITION ACT 1965 S10(2)

EXTRADITION ACT 1965 (PART II) (NO 23) ORDER 1989 SI 9/1989 SCHED PART I

EXTRADITION ACT 1965 S8

EXTRADITION ACT 1965 S10(3)

EXTRADITION ACT 1965 S10(1)

EXTRADITION ACT 1965 PART II

CONSTITUTION ART 40.4.2

CONSTITUTION ART 40

EUROPEAN CONVENTION ON EXTRADITION 1957 ART 7

Synopsis:

CRIMINAL LAW

Extradition

Exception - Proof - Crime - Commission - Place - High seas - Drug smuggling - Offence committed by Danish seaman on Venezuelan ship in Caribbean - Request for extradition made by Kingdom of Denmark - Statute - Interpretation - Strictness - International convention incorporated in domestic law - Extradition Act, 1965 (Part II) (No. 23) Order, 1989 (S.I. 9/89) - Extradition Act, 1965, ss. 8–10, 29 - Constitution of Ireland, 1937, Article 40 - (36/94 - Supreme Court - 27/7/94) [1995] 1 ILRM 61

|Aamand v. Smithwick|

STATUTORY INTERPRETATION

Strictness

Necessity - Penal code - Detention - Extradition - (36/94 - Supreme Court - 27/7/94) [1995] 1 ILRM 61

|Aamand v. Smithwick|

1 JUDGMENT delivered on the 27th day of July 1994 by Finlay C.J .[NEM DISS]

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

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

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

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

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

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

RELEVANT STATUTORY PROVISIONS

8 The statutory provisions of particular importance to the issues which have been raised in this case are as follows:

9 Section 8(1) of the Act of 1965 provides as follows:

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

11 Section 8(3) provides as follows:

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

13 Section 8(4) provides as follows:

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

15 Section 8(5) provides as follows:

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

17 Section 10 of the Act of 1965 provides as follows:

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

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

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

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

22 Article 7 of the Convention reads as follows:

Place of Commission

23 1. The requested party...