Adams v DPP

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Kelly
Judgment Date12 April 2000
Neutral Citation[2000] IEHC 45
Date12 April 2000
ADAMS v. DPP & ORS
JUDICIAL REVIEW

BETWEEN

JOHN ADAMS
APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS, JUDGE FOR DISTRICTNO. 16(sic), HER MAJESTY'S SECRETARY OF STATE FOR HOME AFFAIRS(sic)
RESPONDENTS

[2000] IEHC 45

No. 40 JR 2000

THE HIGH COURT

Synopsis

Extradition

Extradition; judicial review; rule of specialty; service of proceedings outside jurisdiction; sovereign immunity; duty of Counsel in applications ex parte; applicant had been extradited to State in respect of sexual offences; because of the rule of specialty it would have been impossible to prosecute sexual offences unless appropriate waiver was forthcoming from relevant authority in requested state; third named respondent, Her Majesty's Secretary of State for the Home Department ("the Home Secretary"), had issued a certificate of waiver in that regard; application ex parte had been made to High Court for leave to issue proceedings seeking to prohibit D.P.P. from continuing prosecution of sexual offences pending before Central Criminal Court and an order of certiorari quashing the District Judge's order returning applicant for trial; against third named respondent, orders of certiorari quashing certificate of waiver and leave to file an additional affidavit on the constitutional position of the third named respondent were sought; applicant had been granted leave and High Court had directed, inter alia, that service be effected upon the British Ambassador in Ireland or such other person authorised to accept service on behalf of the Home Secretary; application by Home Secretary to set aside High Court order and to dismiss the proceedings as against him; whether purported service at the British Embassy in Dublin was lawful; whether service could validly be effected at the Foreign and Commonwealth Office in London in circumstances where no order granting leave to serve outside the jurisdiction had either been sought or obtained; whether Home Secretary entitled to sovereign immunity; whether matter should be adjourned pending resolution by European Court of Human Rights of whether Member States of the Council of Europe can still rely on sovereign immunity; Extradition (Rule of Specialty and Re-Extradition for purposes of Part III of Extradition Act, 1965) Order, 1994; Order 11, Rules of the Superior Courts, 1986; Diplomatic Relations and Immunities Act, 1967; Vienna Convention on Diplomatic Relations, 1961.

Held: Application allowed; order of High Court granting leave to bring proceedings against Home Secretary set aside; order permitting service of judicial review proceedings upon British Ambassador in Ireland was in direct conflict with statutory provisions affording immunity to him from civil and administrative jurisdiction of the State; OO. 11 and 11a of the Rules of the Superior Courts, 1986, do not encompass judicial review proceedings; Court has no jurisdiction apart from that conferred by O. 11 to permit service of its process outside the State; Home Secretary entitled to rely on sovereign immunity in respect of certificate sought to be quashed; European Convention on Human Rights and Fundamental Freedoms is not part of Irish domestic law; by issuing certificate, Home Secretary did not thereby waive entitlement to sovereign immunity; remedy available to one against whom an ex parte order is made is to apply to Court to set it aside, not to appeal to the Supreme Court; application to set aside need not be heard by judge who made original order; on any application made ex parte, utmost good faith must be observed; this obligation extends to Counsel.

Adams v. Director of Public Prosecutions - High Court: Kelly J. - 12/04/2000 - [2001] 2 ILRM 401

The applicant had been charged with a number of offences allegedly committed in this jurisdiction. To enable a prosecution to proceed the applicant had been extradited and under the "rule of specialty" the English Home Secretary issued the appropriate certificate of waiver. Counsel for the applicant had obtained leave on an ex-parte basis to challenge the prosecution of the offences and also seeking to quash the certificate of waiver. In the High Court O'Neill J had issued an order on 7 February, 2000 to the applicant directing that the Home Secretary be served with the proceedings in the persona of the British ambassador. In this application counsel for the Home Secretary sought to challenge the service of proceedings against him on a number of grounds and also to have the proceedings as against him dismissed. Kelly J held that the service of the proceedings had not been carried out in accordance with the law and as such service of proceedings outside the jurisdiction must be done under Order 11 of the Rules of the Superior Courts, 1986. In addition the Home Secretary could not be impleaded in the proceedings due to the principle of sovereign immunity. The British ambassador should not therefore have been served with the proceedings. In addition criticisms were made on the manner in which counsel for the applicant had been granted the original ex-parte order and for the failure by counsel to draw the court's attention to the relevant material. The application was acceded to and the leave granted for the service of proceedings upon the Home Secretary was set aside.

Citations:

RSC O.11

RSC O.11 r1

RSC O.11a

CONSTITUTION ART 40.4

EXTRADITION (RULE OF SPECIALTY & RE-EXTRADITION FOR PURPOSES OF PART III OF EXTRADITION ACT 1965) ORDER 1994 SI 221/1994

RSC O.84

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

DIPLOMATIC RELATIONS & IMMUNITIES ACT 1967 S5

VIENNA CONVENTION ON DIPLOMATIC RELATIONS 1961 ART 22

VIENNA CONVENTION ON DIPLOMATIC RELATIONS 1961 ART 29

VIENNA CONVENTION ON DIPLOMATIC RELATIONS 1961 ART 31

HELLENIC LINES LTD V MOORE 120 US APP DC 288

BRENNAN V LOCKYER 1932 IR 100

FUSCO V O'DEA 1994 2 IR 93

O'CONNOR V STAR NEWSPAPER CO 1891 30 LRI 4

SHIPSEY V BRITISH & SOUTH AMERICAN STEAM NAVIGATION CO 1936 IR 65

MATTHEWS & MALEK DISCOVERY (1992) PARA 3.53

BELOFF & MOUNTFIELD "THE TERRITORIAL LIMITS OF JR" 1997 JRJ

CANADA V EMPLOYMENT APPEALS TRIBUNAL 1992 2 IR 484

MURPHY V INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) 1997 2 ILRM 467

MURPHY V INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) 1999 1 IR 12

DOYLE V COMMISSIONER OF AN GARDA SIOCHANA 1999 1 IR 249

O LAIGHLEIS, IN RE 1960 IR 93

VOLUNTARY PURCHASING V INSURCO LTD 1995 2 ILRM 145

SCHMIDT V HOME SECRETARY OF THE GOVT OF UNITED KINGDOM UNREP MURPHY 19.1.1994

RSC O.52 r3

RSC O.12 r26

ST GEORGES HEALTHCARE NHS TRUST V S 1998 3 WLR 936

1

JUDGMENT of Mr. Justice Kellydelivered the 12th day of April 2000

INTRODUCTION
2

The Applicant is awaiting trial in the Central Criminal Court on fifteen counts of rape and sixteen counts of sexual assault. He was extradited to this State in respect of other and unrelated charges. Because of the rule of specialty it would not have been possible to prosecute these sexual offences unless an appropriate waiver was forthcoming from the relevant authority in the requested state. On 29th July 1997 the third named respondent, Her Majesty's Secretary of State for the Home Department (and not as described in the title) hereafter "The HomeSecretary" issued a certificate of waiver in that regard.

3

On 7th February 2000 an application was made to O'Neill J. for leave to commence these proceedings. They seek to prohibit the Director of Public Prosecutions from continuing the prosecution of the sexual offences pending before the Central Criminal Court.An order of certiorari is also sought seeking to quash the District Judge's order returning the applicant for trial. The reliefs sought against the Home Secretary are as follows:-

"An order of certiorari quashing the third named respondent's certificate dated 29 July 1997 purporting to waive specialty in respect of the said offences".

4

and

"Leave to file an additional affidavit on the constitutional position of the third named respondent".

5

The Applicant was granted leave to apply for these reliefs and the order of O'Neill J. then went on to give directions as to service. Insofar as service on the Director of Public Prosecutions was concerned he directed service on the Chief State Solicitor; insofar as the District Judge was concerned he directed service of the order and grounding papers on the relevant Court Clerk. Insofar as the Home Secretary was concerned he directed service on "the British Ambassador in Ireland or such other person authorised to except (sic) service on behalf of Her Majesty's Secretary of State for Home Affairs".

6

This application is brought by the Home Secretary to set aside the order of O'Neill J. and dismiss these proceedings as against him.

THE EVIDENCE ON THIS APPLICATION
7

The application is grounded upon an affidavit sworn by Christopher Radley Ashford a solicitor to the Home Secretary. The affidavit makes it clear that three grounds are relied upon. First, he seeks to set aside the service of the proceedings. They were, in the firstinstance, sought to be served at the premises of the British Embassy in Dublin. Such service would not have been in accordance with law, it is said. Secondly, the proceedings were then served at the Foreign and Commonwealth Office in London in circumstances where no order granting leave to serve out of the jurisdiction was either sought or obtained. Finally, in any event, the Home Secretary is, it is contended, entitled to sovereign immunity and cannot be impleaded in these proceedings.

8

Following the making of the order by O'Neill J. the solicitors for the Applicant attempted to deliver the relevant documents to the British Embassy at Merrion Road, Dublin 4. An official at the Embassy indicated that they should deliver the papers to the Foreign and Commonwealth Office in London. The documents were delivered by hand by an official of the...

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