Attorney General v Martin

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 02 October 2012
• Neutral Citation: [2012] IEHC 442
• Court: High Court
• Docket Number: Record No. 2010 / 261 EXT
• Date: 02 October 2012

[2012] IEHC 442

THE HIGH COURT

Record No. 2010 / 261 EXT

IN THE MATTER OF THE EXTRADITION ACTS 1965 to 2001

BETWEEN

THE ATTORNEY GENERAL

APPLICANT

AND

EMMET J. MARTIN

RESPONDENT

Criminal law - Extradition - USA - Incarceration - Pre-trial - Rule of specialty - Post-sentence incarceration - Sex offences - Chemical castration - Jimmy Ryce Law - Florida State law - Prison conditions - Extradition Act 1965

Facts: The United States of America (USA) sought the extradition of the respondent to place him on trial for three counts of lewd and lascivious molestation, punishable under the laws of Florida by more than one year of imprisonment, pursuant to the Extradition Act 1965, as amended. A notice of objection was filed by the respondent on several grounds including that the prison conditions of the requesting state fell below international norms, by reason of chronic overcrowding and communal showers. It was complained that the respondent could be subject to post-sentence incarceration on foot of the "Jimmy Ryce Law", which amounted to a breach of the rule of speciality and that the respondent could be subjected to registration as a sex offences under requirements which were impugned as vague. The respondent also alleged that the possibility that he could be subject to chemical castration would expose him to a real risk of inhuman and degrading treatment.

Held by Edwards J. that the Court was disposed to dismiss the objections to the extradition of the respondent and would make an order committing the respondent to prison to await the order of the Minister. The Court was not disposed to uphold the objection based upon an alleged real risk of inhuman and degrading treatment. The respondent had not adduced sufficient evidence to establish substantial grounds in this regard. Prison overcrowding could amount to inhuman and degrading treatment, but was not necessarily so by itself. To require male prisoners to shower in communal facilities without privacy did not amount to inhuman and degrading treatment. The detention here was pre-trial detention in a county jail and not imprisonment as a sentenced prisoner in either a state or federal prison. The Court had reviewed the Jimmy Ryce Act and while it provided for the imposition of a mental health measure, it was not an additional punishment as alleged. A committal order thereunder would not breach the rule of specialty, as it was neither a prosecution nor a punishment. The Court was not disposed to uphold the objection based upon registration as a sex offender. The apprehension of the respondent that he would be subjected to chemical castration was without foundation.

Mr. Justice Edwards

JUDGMENT of Mr. Justice Edwards delivered on the 2nd day of October, 2012.

1 1. Introduction

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 three counts of lewd and lascivious molestation by a person over the age of 18, committed on a person under the age of 12 years, in violation of Section 800.04(5)(b) of the Florida Statutes; and three counts of lewd or and lascivious molestation by a person over the age of 18, committed on a person under the age of 16 years, but 12 years or older, in violation of Section 800.04(5)(c)(2) of the Florida Statutes.

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

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.

2.2 On the 13th 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 25th June, 2003 (hereinafter ‘the E.U.–U.S. Treaty’).

2.3 Section 8 of the Act of 1965, as it applied at the material time, stated:

‘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.’

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 Iris Oifigiúil on the 6th February, 2001 at 245. Part 9 of S.I. No. 474 of 2000 was subsequently amended, in order to give effect to provisions of the E.U.–U.S. Treaty, by the Extradition Act 1965 (Application of Part II) (Amendment) Order 2010 ( S.I. No. 45 of 2010). Notice of the making of this said order was published in Iris Oifigiúil on the 19th February, 2010.

2.5 Once Part II of the Act of 1965 applies there is a duty on the State to extradite by virtue of s. 9 of that Act, which is in the following terms:

‘9.—Where a country in relation to which this Part applies duly requests the surrender of a person who is being proceeded against in that country for an offence or who is wanted by that country for the carrying out of a sentence, that person shall, subject to and in accordance with the provisions of this Part, be surrendered to that country.’

2.6 Section 10 of the Act of 1965, as amended, deals with extraditable offences and in that regard sets out the requirements that must be met as to correspondence and minimum gravity. In so far as it is relevant to the present case the Court is mainly concerned with subss. (1) and (3) which provide:

‘10.—(1) Subject to subsection (2), extradition shall be granted only in respect of an offence which is punishable under the laws of the requesting country and of the State by imprisonment for a maximum period of at least one year or by a more severe penalty and for which, if there has been a conviction and sentence in the requesting country, imprisonment for a period of at least four months or a more severe penalty has been imposed.

…

(3) In this section “an offence punishable under the laws of the State” means—

(a) an act that, if committed in the State on the day on which the request for extradition is made, would constitute an offence, or

(b) in the case of an offence under the law of a requesting country consisting of the commission of one or more acts including any act committed in the State (in this paragraph referred to as “the act concerned”), such one or more acts, being acts that, if committed in the State on the day on which the act concerned was committed or alleged to have been committed would constitute an offence, and cognate words shall be construed accordingly.’

Subsection (2) is not relevant to the present case.

2.7 A request for a person”s extradition is made to the Minister (for Justice and Equality – as he is currently entitled) in the first instance and any such request must comply with the formalities prescribed in s. 23 of the Act of 1965 and be accompanied by the supporting documentation specified in s. 25 of that Act.

2.8 Section 23 of the Act of 1965 provides:

‘23.—A request for the extradition of any person shall be made in writing and shall be communicated by—

(a) a diplomatic agent of the requesting country, accredited to the State, or

(b) any other means provided in the relevant extradition provisions.’

2.9 Section 25 of the Act of 1965 provides:

‘25.—A request for extradition shall be supported by the following documents—

(a) the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or, as the case may be, of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting country;

(b) a statement of each offence for which extradition is requested specifying, as accurately as possible, the time and place of commission, its legal description and a reference to the relevant provisions of the law of the requesting country;

(c) a copy of the relevant enactments of the requesting country or, where this is not possible, a statement of the relevant law;

(d) as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality, and

(e) any other document required under the relevant extradition provisions.’

2.10 Under s. 26(1)(a) of the Act of 1965 the Minister is required, upon receipt of a properly communicated request supported by the required documents, to certify having received the request. Section 26(1)(b) of the same Act (as amended by s. 7 of the Extradition (Amendment) Act 1994, and as further amended by s. 20 of the Extradition (European Union Conventions) Act 2001) then provides:

‘26.—(1)(b) On production to a judge of the High Court of a certificate of the Minister under paragraph (a) stating that a request referred to in that paragraph has been made, the judge shall issue a warrant for the arrest of the person concerned unless a warrant for his arrest has been issued under section 27.’

2.11 Where an arrest warrant has been duly issued pursuant to a request for extradition, the Act of 1965 provides, in s. 26(2) thereof, that it may be executed by any member of An Garda Síochána in any part of the State. Moreover, s. 26(5) requires that a person arrested under a warrant issued under s. 26(1)(b) shall be brought as soon as may...