Ashley-Nicholson, Appl of
| Jurisdiction | Ireland |
| Judge | Mr Justice Michael Peart |
| Judgment Date | 27 May 2003 |
| Neutral Citation | [2003] IEHC 23 |
| Docket Number | 7 EXT/2003 & |
| Court | High Court |
| Date | 27 May 2003 |
[2003] IEHC 23
THE HIGH COURT
AND
Citations:
EXTRADITION ACT 1965 S43
EXTRADITION ACT 1965 S45(2)
EXTRADITION ACT 1965 S45(1)
EXTRADITION ACT 1965 S47
RSC O.1 r1
PRACTICE & PROCEDURE IN THE SUPERIOR COURTS O FLOINN 1996
DPP V CLEIN 1983 ILRM 76, 1981 ILRM 465
EXTRADITION (EUROPEAN UNION CONVENTIONS) ACT 2002 S20(1)
EXTRADITION ACT 1965 S45
EXTRADITION ACT 1965 S47(2)
EXTRADITION ACT 1965 S50(3)
PRACTICE DIRECTION 20.3.2002 EXTRADITION ACTS 1965 - 2001 PAR 6
PRACTICE DIRECTION 20.3.2002 EXTRADITION ACTS 1965 - 2001 PAR 7
PRACTICE DIRECTION 20.3.2002 EXTRADITION ACTS 1965 - 2001 PAR 8
PRACTICE DIRECTION 20.3.2002 EXTRADITION ACTS 1965 - 2001 PAR 9
PRACTICE DIRECTION 20.3.2002 EXTRADITION ACTS 1965 - 2001 PAR 10
EXTRADITION ACT 2001 PART 3
PRACTICE DIRECTION 20.3.2002 EXTRADITION ACTS 1965 - 2001 PAR 11
MCK V F (A) 2002 1 IR 242 2002 2 ILRM 303
PROCEEDS OF CRIME ACT 1996 S3
RSC O.124
RSC O. 98
EXTRADITION ACT 1965 S50
RSC O. 98 r1
CONSTITUTION ART 40
Practice and procedure - Criminal law - Extradition - Constitutional law - Detention - Arrest procedure - Habeas corpus - Whether extradition proceedings properly constituted - Extradition Acts, 1965 - 2001 - Rules of the Superior Courts, 1986.
The extradition of the applicants had been sought on foot of offences relating to VAT offences in England for which the applicants had been convicted. The applications brought the present proceedings seeking a declaration that no proceedings, that is extradition proceedings, were in existence against the applicants. On behalf of the applicants it was contended that an originating summons must be issued before the matter was properly before the Court. In addition it was submitted that it would be more convenient if a summons was issued and this would enable the arrested person to seek particulars of the offences in question.
Held by Peart J in refusing the relief sought. It was evident from the terms of sections 45 and 47 of the Extradition Act, 1965 that no mechanism was required for the person to be brought the Court. Any constitutionality claim of the applicants to their extradition could be brought by the issuing by them of a plenary summons. In extradition proceedings the Court was required to ensure that the accused person was properly arrested and that the offence specified in the warrant corresponded with an offence in this jurisdiction. Any habeas corpus application would also be refused.
The persons named in the title hereof are before the court on foot of warrants dated 10th December 2002, received from the British Police Authorities, and which, having been endorsed on the 11th March 2003 in the usual way under the procedures contained in section 43 of the Extradition Act,1965("the Act"), as amended, were duly executed on the 12th March 2003 by An Garda Siochana in respect of both persons, who were at the time resident in this jurisdiction.
Both persons were tried in England in respect of offences under the UK Value Added Tax Act 1994, but during their said trial, they left the English jurisdiction and came to Ireland. In their absence, therefore, the trials concluded and they were convicted and sentenced in their absence.
Having been arrested here, both persons were brought before this court pursuant to the provisions of section 45(2) of the Act. Both were remanded from time to time, but on the 1st April 2003, Counsel for each of these persons sought leave to issue a Notice of Motion returnable for the hearing. That leave was granted. The Notices of Motion in each matter seek the following reliefs:
"An order declaring that there are not existence proceeding against the defendant or if, which is denied, there are such proceedings, an order dismissing the proceedings by reason of the plaintiff's failure to serve an originating summons herein, and/or an order discharging the defendant from custody."
In the said Notices of Motion the Attorney General is named as plaintiff, and each of the above-named persons is named as defendant respectively. In view of the nature of the relief sought, I prefer to refer to these persons as "the applicants" in respect of the relief sought in the Notice of Motion.
The Notices of Motion came on for hearing before this court on the 8th day of May 2003.
The issue to be decided is a net point really as to whether the procedure provided by the Act for the bringing before this court under 45(1) of the Act, of persons arrested under section 45 thereof, so that the court can carry out its prescribed function under section 47 thereof, namely the making of an order for the delivery of the arrested person to the custody of a member of the police force of the country in which the warrant issued, for conveyance to that country and remand him until so delivered, constitutes "civil proceedings" within the meaning of that term in Order 1, Rule 1 of the Rules of the Superior Courts ("the Rules"), because if so, it is contended that an originating summons must be issued before the matter is properly before the court.
Order 1, rule 1 states:
"Save as otherwise provided in these Rules, civil proceedings in the High Court shall be instituted by a summons of the Court to be called an originating summons."
It is a fact that nowhere in the Rules is the term "proceedings" defined. But, interestingly, Mr O'Floinn in his annotated Rules of the Superior Courts in a footnote on page 1 thereof states in respect of the term "originating summons":
"Save as appears in this Order, this is not defined in the RSC other than in its inclusion in the definition of the term “pleadings" in Order 125 rule 1.
In essence, an originating summons is no more than a written command issued to a defendant for the purpose of getting him to attend at Court on a specified day at a specified time: DPP v. Clein (1983) ILRM76."
The case of DPP v. Clein referred to was called in aid by Counsel for the applicants in the present case, but in the context of a submission that a summons must specify the subject matter of a plaintiff's claim. It is only fair to note that as regards the footnote quoted above, it is clear that the case concerns a District Court Summons, and not a summons issued in the High Court, nevertheless the author's comment as to the purpose of an originating summons, highlights the essential purpose of an originating summons in High Court civil proceedings, which is to commence a process of litigation, sometimes referred to as a "lis". The Rules prescribe a number of methods of commencement; for example, plenary summons, summary summons, special summons, petition, and originating Notice of Motion, and to a large extent specify the types of case which must be commenced by the different category of originating document. There is no reference to any document required for the purpose of obtaining an order under section 47 of the Act. The fact is that such orders were until recently sought in the District Court. It was only upon the coming into force of the Extradition (European Union Conventions) Act, 2002 that the jurisdiction formerly enjoyed by a judge of the District Court in these matters was transferred to a judge of the High Court under section 20 (1) thereof.
Following the coming into force of that Act, a Practice Direction was introduced by the President of the High Court, to which I will refer later. This document says nothing about any requirement to issue an originating summons, and merely, as far as relevance to this case is concerned, specifies certain forms appended thereto which are to be used in relation to remand orders, committal orders and soforth.
Before dealing with Counsel's submissions, I should set out of terms of Section 45 and 47 of the Act, which state as follows:
"45. - A warrant endorsed under section 43 may be executed by any member of An Garda Siochana in any part of the State.
(2) The person named or described in the warrant shall on arrest be brought before a justice of the District Court for the district in which he was arrested, if a justice is immediately available.
(3) If not, he shall be brought as soon as may be before a peace commissioner in that district."
"47. - (1) Where a person named or described in a warrantis before the District Court in pursuance of this part that Court shall, subject to the provisions of this Part, make an order for his delivery at some convenient point of departure from the State 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, and remand him until so delivered.
(2) An order shall not be made under subsection (1) 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...
To continue reading
Request your trial