Attorney General v Frederick David Russell

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 23 May 2006
• Neutral Citation: [2006] IEHC 164
• Court: High Court
• Date: 23 May 2006

[2006] IEHC 164

THE HIGH COURT

Record Number: No. 57 Ext./2005

AG v RUSSELL

Between:

The Attorney General

Applicant

And

Frederick David Russell

Respondent

EXTRADITION ACT 1965 S26(1)(b)

EXTRADITION ACT 1965 S26(5)

EXTRADITION ACT 1965 S29

EXTRADITION ACT 1965 S29(1)(c)

EXTRADITION ACT 1965 S3(1)

EXTRADITION ACT 1965 S10(3)

ROAD TRAFFIC ACT 1961 S53

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S25

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S26

EXTRADITION ACT 1965 PART II

EXTRADITION ACT 1965 S26(6)

EXTRADITION TREATY BETWEEN IRELAND & UNITED STATES 1983 ART XI

EXTRADITION ACT 1965 S20

USA v ANDONIAN 29 F 3d 1432

USA v LAZAREVICH 147 F 3d 1061 (9TH CIRC 06.23.1998)

USA v LE BARON NO 97-20517 5TH

BOURKE v AG 1972 IR 36

R v GOVERNOR OF BRIXTON PRISON EX PARTE ARMAH 1968 AC 192 1966 3 WLR 828

AG v BURNS UNREP SUPREME 6.12.2004 2004/2/428

R (BERMINGHAM & ORS) v DIRECTOR OF SERIOUS FRAUD OFFICE 2006 ALL ER (D) 268 (FEB)

US v NAJOHN 785 F 2d 1420

REVISED CODE OF WASHINGTON 9.94A 537

REVISED CODE OF WASHINGTON 9.94A 535(3)(q)

REVISED CODE OF WASHINGTON 9.94A 535(3)(a)

WELSH v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2006 ALL ER (D) 289

EXTRADITION ACT 2003 S95

EXTRADITION TREATY BETWEEN IRELAND & UNITED STATES 1983 ART XII

US v GARCIA 208 F 3d 1258 (11TH CIRCUIT 2000)

US v GARRIDO-SANTANA 360 F 3d 565 (6TH CIRCUIT 2004)

FINUCANE v MCMAHON & GOVERNOR OF PORTLAOISE PRISON 1990 1 IR 165 1990 ILRM 505

RUSSELL v FANNING 1988 IR 505 1986 ILRM 401

O, STATE v FRAWLEY 1976 IR 365

EXTRADITION

Rule of speciality

Extradition sought by US Department of Justice - Exceptional sentence - Whether rule of speciality would be violated - Whether taking into account uncharged unproven conduct in passing exceptional sentence constituted breach of speciality provision -Whether respondent punished for offence other than that for which his extradition has been granted - Welsh & Thrasher v Secretary of State for Home Dept & Ors [2006] All ER289 applied - R v Director of the Serious Fraud Office [2006] All ER 268 followed -Whether real risk to right to life if extradited- Onus on respondent to establish real risk -Not rigid standard of proof - Finucane v McMahon [1990] 1 IR 165 considered -Extradition Act 1965 (No 17), s 26 - Order of extradition granted (2005/57Ext - Peart J - 23/5/2006) [2006] IEHC 164 Attorney General v Russell

1 Mr Justice Michael Peart delivered on the 23rd day of May 2006 :

2 The extradition of the respondent is sought by the U.S. Department of Justice on foot of a Request received by the Minister for Justice, Equality and Law Reform so that the respondent can stand trial on three charges of vehicular homicide, three charges of vehicular assault, one charge of forgery and one charge of theft ("the extradition charges").

3 The respondent has also been charged in the U.S. with an offence of “Bail Jumping”, and a charge of "inter-state flight" ("the non-extradition charges") but his extradition is not sought in respect of those charges, and there are averments which I will come to, that the respondent will not be proceeded against in respect of them, if returned on the extradition charges.

4 As required by s. 26 of the Extradition Act, 1965, as amended ("the Act") the Minister, following receipt of the said Request has certified that such a Request had been made.

5 Thereafter, as provided for in s. 26(1)(b) of the Act, an application was made for a Warrant for the arrest of the respondent who was known to be living and working in this State under an assumed name. That Warrant duly issued, and on the 23rd October 2005 the respondent was arrested in Dublin by Sgt. Anthony Linehan of The Crime Branch, Garda Headquarters, Dublin.

Factual Background:

6 The respondent was charged with the extradition offences and the non-extradition offences following a multiple vehicle collision in Washington State on the 4th June 2001, in which three persons died, and others were seriously injured. He was the driver of one of the vehicles involved, and it is an incident which has engendered much public outcry in the area concerned, and much animosity towards the respondent who is thought by those connected to the deceased and injured to have been responsible for the collision. There are allegations that he was driving at an excessive speed and on the incorrect side of the road when overtaking another vehicle. Blood samples taken from him after the incident are said to confirm the presence of alcohol in excess of the permitted limit as well as the ingestion of marijuana.

7 Having been charged with the offences referred to, he was granted what is referred to as “pre-trial release” or bail. As a condition of that release he was required to appear in court for what is referred to as “a readiness hearing” on the 26th October 2001 so that the court might be informed by both sides as to their readiness for trial. The respondent failed to appear at that readiness hearing, and a bench warrant was issued for his arrest.

8 What is alleged to have happened next gave rise to the charges of theft and forgery for which his extradition is being sought. It appears that at the time of this incident the respondent was living with his father, but that shortly before the readiness hearing set for the 26th October 2001 he left home. His father made a statement to the police to the effect that on the 26th October 2001 he noticed that a cheque was missing from his cheque book, and later discovered that this cheque had been forged by the respondent and cashed for the sum of $1300.00 on the 23rd October 2001.

9 No issue is raised by the respondent as to identification, or the manner in which this arrest was carried out here and I am satisfied that he was duly arrested, detained and brought before this Court on that date in accordance with the requirements of s. 26(5) of the Act and remanded thereafter in custody pending the hearing of the present application under s.29 of the Act. He has not applied for bail here pending the determination of this application.

10 It is provided in s. 26(6) of the Act that "where a person has been arrested under a warrant issued under this section, then in any proceedings it shall be presumed, unless the contrary is proved, that a request for the extradition of the person has been duly made and has been duly received by the Minister." No attempt has been made to show the contrary.

11 Section 29 of the Act provides for the circumstances in which the High Court may make an order for the committal of the requested person to a prison "there to await the order of the Minister for his extradition." That section provides:

"29. (1) Where a person is before the High Court under section 26 or 27 and the Court is satisfied that —"

(a) the extradition of that person has been duly requested, and

a (b) this Part applies in relation to the requesting country, and

b (c) extradition of the person claimed is not prohibited by this part or by the relevant extradition provisions, and

c (d) the documents required to support a request for extradition under section 25 have been produced,

12 the Court shall make an order committing that person to a prison (or, if he is not more than twenty-one years of age, to a remand institution) there to await the order of the Minister for his extradition." (my emphasis)

13 Regard must be had not just to the Act, but to the terms of the Treaty on Extradition between Ireland and the United States of America done at Washington on the 13th July 1983 itself ("the Treaty") so far as is relevant to the issues raised. This arises because of the reference in s.29 (1) (c) above to "the relevant extradition provisions". By virtue of s.3 (1) of the Act those "extradition provisions" are defined as "the provisions of an extradition agreement or of an order under section 8 applying Part II otherwise than in accordance with an extradition agreement."

14 Under s. 10 of the Act, extradition may be granted only if a certain minimum gravity of offence is met, and if there is correspondence between the offences charged and offences in this State, as defined by s. 10(3) of the Act.

15 Having noted that no issue is raised by the respondent as to either minimum gravity or correspondence, I can say that I am in any event satisfied that the acts alleged against the respondent and which are said to give rise to the charges for which his extradition is sought in the U.S. would, if the same acts had been committed in this State on the day the Request for his extradition was made, have given rise to offences respectively of manslaughter, dangerous driving causing death, and dangerous driving causing serious bodily harm each being an offence under s. 53 of the Road Traffic Act 1961, as well as an offence of theft under s. 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001, and an offence of forgery under s.25 and s.26 of the same Act. In respect of all such offences the minimum gravity requirement is also met.

Issues raised by the respondent:

1. Specialty:

16 The respondent has raised issues arising from the rule of specialty as set forth in his Notice of Objection dated 19th January 2006 (as amended) as follows:

17 2 "1. If extradited the said [respondent] will or is likely to be prosecuted and/or punished for the offences of bail-jumping and interstate flight to avoid prosecution, in breach of the rule of specialty provided for by Part II of the Extradition Act, 1965 as amended by the Treaty on Extradition between the United States of America and Ireland."

18 That rule is expressed in Article XI of the Treaty as follows:

"Article XI Rule of Specialty"

19 1. A person extradited under this Treaty shall not be proceeded against,...