AG v K (D M)
| Jurisdiction | Ireland |
| Judge | Mr Justice Michael Peart |
| Judgment Date | 11 December 2003 |
| Neutral Citation | [2003] IEHC 609 |
| Court | High Court |
| Date | 11 December 2003 |
[2003] IEHC 609
THE HIGH COURT
Between:
And
Criminal law - Extradition - Delay in endorsement and execution of warrants - Respondent re-arrested when released from prison - Extradition Act 1965, s. 47
The applicant sought an order pursuant to s. 47 of the Extradition Act 1965 as amended for the rendition of the respondent to the Metropolitan Police in London on foot of three warrants. The respondent submitted inter alia that the extradition proceedings had not been implemented expeditiously and that the delay in endorsing and executing the warrants was unconscionable and intolerable. The respondent had been serving a term of imprisonment and in accordance with the established policy of the Attorney General he was not arrested until the termination of his prison sentence.
Held by Peart J. in granting an order under s. 47 for the rendition of the respondent that all the statutory requirements of s. 47 had been complied with. The respondent had not been prejudiced by the delay. The respondent was aware that upon his release the authorities would seek his re-arrest.
Per curiam There could be no prejudice to the State by informing the prisoner in good time that he was to be arrested upon his release to allow the prisoner to mentally prepare for the re-arrest.
Reporter: R.W.
Mr Justice Michael Peartdelivered the 11th day of December2003:
The Applicant seeks an order pursuant to the provisions of Section 47 of the Extradition Act, 1965, as amended, for the rendition of the respondent to the Metropolitan Police in London on foot of 3 warrants each dated 23 rd May 2002, and each hereinafter referred to respectively as Warrant"A", Warrant "B", and Warrant"C".
Warrant A" is in respect of a charge of rape "pervaginam" contrary to Section 1(1) of the Sexual Offences Act,1956;
Warrant "B" is in respect of a charge of rape "peranum", contrary to the same section;
Warrant "C" is in respect of robbery contrary to Section 8(1) of the Theft Act, 1968.
All offences are stated in the warrants to have taken place at St. Elmo Road, London W12, England.
In relation to each of these warrants there is the required affidavit accompanying same in which the deponent, Paul Henton, deposes to witnessing the signing of each Warrant by Davinder Kaur Lachhar, a District Judge (Magistrates Courts), and in respect of each offence charged there is the required Certificate which certifies that the minimum gravity requirement is satisfied in respect of each, namely that the offence is an indictable offence by the laws of England and Wales (not being an offence triable on indictment only at the instance or with the consent of the accused) and not also a summary offence.
In relation to correspondence of the offences charged in these warrants with an offence under Irish law, Counsel for the applicant, Mr Barron has submitted that in relation to the rape charges in Warrants"A" and "B", the offences correspond to offences here under section 4 of the Criminal Law (Rape) Act, 1981, and that the offence of robbery in Warrant "C" corresponds to what is now section 14 of the Criminal Justice (Theft and Fraud) Act, 2001, and, at the time the offences is alleged to have been committed, corresponded with section 23 of the Larceny Act, 1916.
Mr Barron also referred to the affidavit of Sgt. Michael Heffernan sworn on the 3 rd July 2003, in which he deposes to having arrested the respondent outside Midlands Prison, Portlaoise, Co. Laois on the5 th May 2003. He states that on the occasion in question the respondent was coming out of that prison having completed a sentence. He says that he identified himself to the respondent and that the respondent confirmed that he was D M K also known as D K, that he appraised the respondent of the nature of the charges alleged in the warrants to which I have referred, and then duly arrested the respondent on foot thereof. Certain other formalities are described in the affidavit, which I do not have to specifically detail, except that following that arrest the respondent was brought before the High Court on the 6 th May 2003. He was thereafter remanded from time to time until this matter was listed before me for hearing.
At the hearing before me Sgt. Heffernan was called to give some oral testimony in relation to this matter which is not contained in his affidavit to which I have already referred. In his evidence he stated that he had first received the warrants in this case from the Metropolitan Police on the 25 th July 2002. The warrants themselves are dated 23 rd. May 2002. He stated that in accordance with normal procedures he then sent them to the Attorney General's Office in order to establish whether the Attorney General wished to exercise his statutory functions in relation to same and to establish correspondence in respect of the offences charged. Having heard back from the Attorney General's office, the Minister for Justice Equality and Law Reform was then invited to intervene if he so wished. Both the Attorney General and the Minister chose not to do so in this case, the latter so indicating on the 20 th August 2002.
At this point, according to Sgt. Heffernan, the warrants were ready to be endorsed, but he stated that in this case, he was aware that at this time the respondent was serving a prison sentence in Midlands Prison, and that, in his own words, "in accordance with the established policy of the Attorney General in cases such as this, he was not arrested until termination of his prison sentence".
He stated also that the warrants were held by him, and that on the30 th April 2003 they were for the first time presented to Assistant Commissioner Egan for endorsement. They were duly endorsed on that date.
Under cross-examination, Sgt Heffernan was asked by Counsel for the respondent, Mr McCullough, under what statutory authority he held these warrants from April 2002 until April 2003 before presenting them for endorsement by the Assistant Commissioner. He responded that it was the policy of the Attorney general in matters such as this, and doubted if the practice had any statutory basis.
The Court enquired of Sgt. Heffernan whether any communication was made with the respondent to inform him that the warrants existed. He responded as follows:
"With the prison, my Lord, yes. We communicated with the Irish Prison service on the 21 st August 2002, my lord. In my experience, sometimes the prison will see fit to inform the prisoner and then sometimes they will not see fit. We would regard this as entirely a matter within the responsibility of the administration of the prison. We would have no view on it one way or another, my lord. We do not mind whether the prisoner is actually informed or not. It is entirely within the remit of the Prison Service."
The Court then enquired:
"What sort of communication was made on 21 stAugust? What was the purpose of that?"
Sgt Heffernan replied:
"My lord, if I could quote the letter we sent, it is addressed to the Irish Prison Service, their headquarters, and it is re M D K, born on 15 th November 1968:-"
"The extradition of the above named has been sought by the UK authorities. As he is presently serving a sentence in the Midlands prison with a release date of 25 th May 2003, the Extradition Section of Garda Headquarters intends to arrest him on the termination of his service. In order to facilitate this, it is requested that this office be notified fourteen days prior to K's release. Your assistance in this matter is appreciated."
It is signed by Superintendent Ciaran G. Kenny."
The Court enquired whether he was aware as to whether that letter was brought to the attention of Mr K, and he confirmed that he was not soaware.
Before dealing with the legal submissions made by Counsel, I need to refer to an affidavit of Sinead Maguire, solicitor in the firm representing the respondent, and which is sworn on the 18 thNovember 2003.
This affidavit states, inter alia, that in October 1997 the respondent was arrested at Shepherd's Bush in London and was charged with common assault of a Police Officer, and that he was subsequently convicted of that offence and sentenced to six weeks' imprisonment, and also that on the 20 th November 1997 the respondent was returned to this jurisdiction on foot of an extradition warrant and charged with a number of offences to which he pleaded guilty and for which he received a seven year term of imprisonment on the 18 th June 1998. It is that term of imprisonment which was completed on the date upon which the respondent was arrested outside the Midlands Prison as described by mealready.
This affidavit also refers to the fact, that the respondent was interviewed by the British police and An Garda Siochana at Wheatfield prison on the 4th day of February 1999 in relation to an investigation into sexual offences that had occurred in England. In addition to being so interviewed, the respondent provided blood samples to the British police. The deponent also states that she wrote to An Garda Siochana by letters dated 15th May 2003 and 20th May 2003 enquiring as to when the warrants were received in respect of the respondent. She states that by letter dated 22nd day of May 2003 the Chief State Solicitor informed her that the warrants in relation to the respondent were received by the Garda Extradition Section on the 25th day of July 2002. She further states that the Garda Siochana were all material times aware of the whereabouts of the respondent and that this is apparent from the fact that they were able to find time to visit him in February 1999 when he was detained at Wheatfield prison. She states that upon receiving the extradition warrants in July 2002 and since they were aware of the applicant of the...
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