Attorney General v O'Gara

JurisdictionIreland
JudgeMr. Justice Edwards
Judgment Date01 May 2012
Neutral Citation[2012] IEHC 179
CourtHigh Court
Date01 May 2012
AG v O'Gara
APPROVED
Mr. Justice Edwards
JUDGMENT
IN THE MATTER OF THE EXTRADITION ACTS 1965 to 2001

BETWEEN

THE ATTORNEY GENERAL
APPLICANT
-AND-
JAMES O'GARA
RESPONDENT

[2012] IEHC 179

Record No. 194 EXT/2009

THE HIGH COURT

EXTRADITION LAW

Surrender

Fundamental rights - Prison - Fundamental defect in system of justice of requesting state - Risk of violation of rights - Test to be applied - Evidence - United States - Whether surrender of respondent would place him at risk of prison rape or exposure to violence and death - Whether court could accept hearsay evidence of prison conditions - Whether extradition proceedings sui generis - Whether making of extradition arrangements presupposes requesting state will not impair fundamental rights - Whether sufficient evidence to displace presumption - Whether risk of violation of rights due to unique characteristic of respondent - AG v Dyer [2004] IESC 1, [2004] 1 IR 40; AG v Parke [2004] IESC 100, (Unrep, SC, 6/12/2004); Minister for Justice v Rettinger [2010] IESC 45, [2010] 3 IR 783; Ellis v O'Dea (No 2) [1991] 1 IR 251; Minister for Justice v Mazurek [2011] IEHC 204, (Unrep, Edwards J, 13/5/2011); AG v Skripakova [2006] IESC 68, (Unrep, SC, 24/4/2006) and Minister for Justice v Altaravicius [2006] IESC 23, [2006] 3 IR 148 applied - Miklis v Deputy Prosecutor General of Lithuania [2006] EWHC 1032 (Admin), [2006] 4 All ER 808 approved - Farmer v Brennan (1994) 501 US 825; Minister for Justice v Brennan [2007] IESC 21, [2007] 3 IR 732; Shannon v Ireland [1984] IR 548 and Larkin v O'Dea [1995] 2 IR 485 considered - AG v Murphy [2007] IEHC 342, [2010] 1 IR 445 and AG v Russell [2006] IEHC 164 (Unrep, Peart J, 23/5/2006) distinguished - Extradition Act 1965 (Application of Part II) Order 2000 (SI 474/2000) - Extradition Act 1965 (Application of Part II) (Amendment) Order 2010 (SI 45/2010) - Extradition Act 1965 (No 17), ss 8, 10, 23, 25, 26, 29 - Washington Treaty on Extradition between the State and the USA of 13/7/1983 - Surrender ordered (2009/194EXT - Edwards J - 1/5/2012) [2012] IEHC 179

Attorney General v O'Gara

Facts The respondent was before the court on foot of a warrant obtained by the applicant pursuant to s. 26(1)(b) of the Extradition Act, 1965 following the making of a request in writing by the United States of America for the extradition of the respondent for the purposes of having him stand trial in the U.S.A. for the offence of bank robbery. The respondent did not take issue with the requirements of correspondence and minimum gravity and there was no argument regarding the identity of the respondent. However the respondent raised objections to the extradition and in particular pleaded that his extradition would amount to a breach of his constitutional right to bodily integrity and to be treated with human dignity and/or his right under Article 3 of the European Convention on Human Rights not to be subjected to torture or inhuman or degrading treatment. In support of this plea the respondent relied on an affidavit sworn by an expert on the U.S. criminal justice and correctional system, which exhibited a large quantity of scholarly literature/scientific research purporting to prove that the requesting state does not observe the same norms as this State in relation to the treatment of prisoners and in particular the respondent would be exposed to an unacceptable risk of being raped and/or suffering serious injury or death whilst in custody in the U.S.A. The respondent also submitted that the significant restrictions placed on the possibility of litigating prison issues by the Prison Litigation Reform Act, 1995 represented a fundamental defect in the system of justice of the requesting state. The applicant contended that the respondent's complaints were of a general kind and were insufficiently specific to the facts of this case.

Held by Edwards J. in dismissing the respondent's objections and committing the respondent to prison to await the order of the Minister for his extradition: That for the purpose of assisting the court in its enquiry it was entitled to receive and consider documentary material notwithstanding that it was strictly speaking hearsay. In extradition cases there was a default presumption that the requesting country would act in good faith and respect a proposed extraditee's fundamental rights. However, in conventional extradition cases the presumption was much weaker and more easily rebutted than the presumption that arose under the European Arrest warrant system. Sufficiently cogent evidence was adduced by the respondent to displace the presumption that the requesting State will respect the respondent's fundamental rights and to put the court on its enquiry as to whether the respondent, if extradited would be exposed to a real risk of a breach of his fundamental rights. However, the evidence did not go so far as to establish that this particular respondent will be exposed to a real risk that his fundamental rights to bodily integrity and/or to be treated with human dignity and not to be subjected to inhuman or degrading treatment will be breached. There was no evidence that the respondent was at risk of having his rights violated by virtue of some characteristic unique to him and the respondent's objections consisted of a general criticism of the requesting State's prison system and human rights record.

Minister for Justice, Equality and Law Reform v Rettinger [2010] 3 IR 783 applied.

EXTRADITION ACT 1965 PART II

EXTRADITION ACT 1965 S8

EXTRADITION ACT 1965 (APPLICATION OF PART II) ORDER 2000 SI 475/2000

EXTRADITION ACT 1965 S8(1)

EXTRADITION ACT 1965 (APPLICATION OF PART II) (AMDT) ORDER 2010 SI 45/2010

EXTRADITION ACT 1965 S9

EXTRADITION ACT 1965 S10

EXTRADITION ACT 1965 S10(1)

EXTRADITION ACT 1965 S10(3)

EXTRADITION ACT 1965 S23

EXTRADITION ACT 1965 S25

EXTRADITION ACT 1965 S26(1)(A)

EXTRADITION ACT 1965 S26(1)(B)

EXTRADITION (AMDT) ACT 1994 S7

EXTRADITION (EUROPEAN UNION CONVENTIONS) ACT 2001 S20

EXTRADITION ACT 1965 S26(2)

EXTRADITION ACT 1965 S26(5)

EXTRADITION ACT 1965 PART II

EXTRADITION ACT 1965 S29(1)

EXTRADITION ACT 1965 S25(1)

EXTRADITION ACT 1965 S37(1)

EXTRADITION (EUROPEAN UNION CONVENTIONS) ACT 2001 S37(1)

EXTRADITION (EUROPEAN UNION CONVENTIONS) ACT 2001 S25(1)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S14

AG v DYER 2004 1 IR 40

EXTRADITION ACT 1965 S10(1)

TREATY ON INTELLECTUAL PROPERTY IN RESPECT OF INTEGRATED CIRCUITS ART II(1)

AG v PARKE UNREP SUPREME 6.12.2004 2004/3/577 2004 IESC 100

EXTRADITION (EUROPEAN UNION CONVENTIONS) ACT 2001 ART 3

MIN FOR JUSTICE v RETTINGER 2010 3 IR 783

PRISON LITIGATION REFORM ACT 1995 (US)

RAPE, BOSWORTH ENCYCLOPEDIA OF PRISONS & CORRECTIONAL FACILITIES LEIGHTON & ROY 2005 VOL 2 819-822

MCCARTHY v MADIGAN 503 US 140

PRISON LITIGATION REFORM ACT 1996

BOSTON: ALLYN & BACON INVITATION TO CORRECTIONS 220

PRISON LITIGATION REFORM ACT ART 13

CHARTER OF HUMAN RIGHTS & FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47

ELLIS v O'DEA (NO.2) 1991 1 IR 251

AG v MURPHY 1 IR 445

MIN FOR JUSTICE v RETTINGER 2010 3 IR 783

MIN FOR JUSTICE v MAZUREK UNREP EDWARDS 13.5.2011 2011 IEHC 204

SHANNON v IRELAND 1984 IR 548

LARKIN v O'DEA 1995 2 IR 485

ELLIS v O'DEA 1991 1 IR 251 1991 ILRM 346 1990/9/2619

AG v SKRIPAKOVA UNREP SUPREME 24.4.2006 2007/3/440 2006 IESC 68

MIN FOR JUSTICE v ALTARAVICIUS 2006 3 IR 148

MIN FOR JUSTICE v STAPLETON 2008 1 IR 669

EUROPEAN ARREST WARRANT ACT 2003

AG v FREDERICK DAVID RUSSELL UNREP PEART 23.5.2006 2006/3/547 2006 IEHC 164

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 12

TREATY OF EUROPEAN UNION ART 6

EUROPEAN ARREST WARRANT ACT 2003 S4A

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S69

MIKLAS v DEPUTY PROSECUTOR GENERAL OF LINTHUANIA 2006 4 AER 808

EXTRADITION ACT 1965 S29

1. Introduction
2

2 1.1 In these proceedings the United States of America (hereinafter the United States of America or the United States or the U.S.A. or the U.S.) seeks the extradition of the respondent with a view to placing him on trial for the offence of bank robbery in violation of Title 18, United States Code 2113 (a) (hereinafter 18 U.S.C. 2113(a)).

2. Extradition between Ireland and the USA: Principal Legal Provisions
2

2 2.1 By virtue of the following measures the U.S.A. is a country to which Part II of the Extradition Act 1965, as amended (hereinafter the Act of 1965), applies.

3

3 2.2 On the 13 th July, 1983, Ireland signed the Treaty on Extradition between the State and the U.S.A. at Washington D.C. (hereinafter the "Washington Treaty"). The Washington Treaty was later amended by the Agreement on Extradition between the United States of America and the European Union, entered into on the 25 th June, 2003 (hereinafter "the E.U.-U.S. Treaty").

4

4 2.3 S.8 of the Act of 1965, as it applied at the material time, stated:

2

" 8.-(1) 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.

5

5 2.4 The Government by means of the Extradition Act, 1965 (Application of Part II) Order, 2000 ( S.I. No. 474 of 2000) made an order pursuant to s.8(1) of the Act of 1965 applying Part II of that Act to the United States of America. Notice of the making of the said order was published in An Iris Oifigiúil on the 6th of February, 2001 at p.245. Part 9 of S.I. No. 474 of 2000 was subsequently amended, in order to give effect...

To continue reading

Request your trial
23 cases
  • Minister for Justice and Equality v Bukoshi
    • Ireland
    • High Court
    • 23 January 2017
    ...the Constitution or under the European Convention on Human Rights. 56 As the High Court (Edwards J.) held in Attorney General v. O'Gara [2012] IEHC 179, there is a presumption arising in extradition cases that the requesting country will act in good faith and that it will respect the funda......
  • Attorney General v Mullan
    • Ireland
    • High Court
    • 14 December 2018
    ...of 1965 and the treaty provisions were usefully and conveniently set out by the High Court (Edwards J.) in Attorney General v. O'Gara [2012] IEHC 179. The Court agrees that is so and relies upon Edwards J.'s dicta on the legal provisions and required 3. The Formal Proofs for Extradition 3.1......
  • O'Sullivan v Mount Juliet Properties Ltd
    • Ireland
    • High Court
    • 3 July 2012
    ...ARREST WARRANT ACT 2003) RECITAL 13 MIN FOR JUSTICE v MAZUREK UNREP EDWARDS 13.5.2011 2011 IEHC 204 AG v O'GARA UNREP EDWARDS 1.5.2012 2012 IEHC 179 MIKLIS v DEPUTY PROSECUTOR GENERAL OF LITHUANIA 2006 4 AER 808 EXTRADITION European Arrest Warrant Presumption - Decision to charge in issuing......
  • Attorney General v Damache
    • Ireland
    • High Court
    • 21 May 2015
    ...rights and fundamental rights and fundamental freedoms". There is, as the High Court (Edwards J.) held in Attorney General v. O'Gara [2012] IEHC 179, also a presumption that arises in extradition cases under the Act of 1965 that the requesting country will act in good faith and that it will......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT