Attorney General v Simon Murphy

JurisdictionIreland
CourtHigh Court
JudgeMr Justice Michael Peart
Judgment Date17 October 2007
Neutral Citation[2007] IEHC 342
Date17 October 2007

[2007] IEHC 342

THE HIGH COURT

Record Number: No. 20 Ext./2006
AG v Murphy

BETWEEN:

Attorney General
Applicant

And

Simon Murphy
Respondent

EXTRADITION ACT 1965 PART II

EXTRADITION ACT 1965 (APPLICATION OF PART II)ORDER 2000 SI 474/2000

EXTRADITION ACT 1965 S26(1)

EXTRADITION ACT 1965 S26

EXTRADITION ACT 1965 S25

EXTRADITION ACT 1965 S29(1)

NEW YORK PENAL LAW S130.65

EXTRADITION ACT 1965 S10

CRIMINAL LAW (RAPE)(AMDT) ACT 1990 S2

PEOPLE (DPP) v HEENEY 2001 1 IR 736

CRIMINAL LAW

Extradition

Plea bargaining - Constitution - Administration of justice in public - Whether plea bargaining breaches principle - Fair procedures - Whether coercion on accused to plead - Whether breach of constitutional right - Nature of plea bargaining system - Whether unfair and oppressive - Whether respondent plea bargaining freely and voluntarily - Extradition ordered (2006/20EXT - Peart J - 17/10/2007) [2007] IEHC 342

Attorney General v Murphy

The applicant sought an order for the extradition of the respondent to the United States of America in order for him to be sentenced in relation to a charge of sexual assault. The warrant incorrectly recited that the respondent was convicted of eight separate offences. The respondent in fact pleaded guilty to one charge of sexual assault and subsequently failed to attend court for his sentencing hearing. Counsel on behalf of the respondent relied amongst other things on the error in the warrant in objecting to the application for extradition. The respondent submitted that there had been a delay on the U.S. authorities in seeking extradition, that the prison conditions the respondent would face if sentenced upon his return would breach his constitutional rights and further that the respondent’s constitutional right to fair procedures would be breached if he were extradited in order to be sentenced in accordance with indications provided to him at the time he agreed to plead guilty pursuant to a plea bargaining process.

Held by Peart J. in ordering the extradition of the respondent: That this court was obliged to make the order sought despite the objections raised on behalf of the respondent. Plea- bargaining was a recognised feature of criminal procedure in the U.S.A. and the respondent freely and without coercion entered upon that process.

Reporter: L.O’S.

1

Mr Justice Michael Peartdelivered on the 17th day of October 2007:

2

Extradition arrangements between this State and the United States of America exist by virtue of the treaty in that regard done at Washington on 13th July 1983 (the Washington Treaty"). Part II of the Extradition Act, 1965 was applied to this treaty by Statutory Instrument 474 of 2000.

3

An order for the extradition of the respondent to the United States of America pursuant to the Washington Treaty is sought by the applicant following the receipt here of a diplomatic note dated 29th July 2004 which made a Request for his extradition. Further information was sought and obtained following upon that Request, and ultimately on the 6th February, 2006 the Minister for Justice, Equality and Law Reform under section 26(1) of .the Extradition Act, 1965 as amended ("the Act") certified that he had received this Request, and, as provided for by section 26 of the Act made an application to the High Court for a warrant of arrest in respect of the respondent. That warrant issued on the 14th February, 2006, and the respondent was duly arrested on foot of same on the 7th March 2006 and was produced before the High Court on the following day the 8th March 2006 as required by section 26 of the Act, and was remanded from time to time pending the hearing of this application.

4

I should mention at the outset the fact that the warrant of arrest recites that the respondent was convicted in the United States of America on eight separate offences and these are listed. This is an error. Nothing turns on the error, although Dr Forde has submitted that the warrant was invalid as a result. But it is accepted by all parties that he was convicted on only one charge of sexual assault to which he had pleaded guilty. His surrender is sought so that he can be returned for sentencing, having failed to appear on the date fixed for his sentencing hearing.

5

I am satisfied that the Request for extradition in this case is supported, as required by section 25 of the Act, by the documentation set forth in that section. There is no need to set out that documentation in any detail.

6

Section 29 (1)of the Act provides as follows:

"(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

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

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

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

7

the Court shall make an order committing that person to a prison (or, if he is not more than 21 years of age, to a remand institution) there to await the order of the Minister for his extradition."

8

There is no issue raised on this application as to whether the offence in respect of which the respondent pleaded guilty in the United States of America corresponds to an offence in this country. It is not in dispute that the respondent has been convicted in the United States of one offence of sexual abuse in the first degree contrary to Article 130. 65 of the Penal Law of New York.

9

Section 10 of the Act sets out how correspondence is established and without going into the details of the factual background to the offence of which the respondent was convicted in the United States, I am completely satisfied that the underlying facts would, if committed in this jurisdiction on the date on which the request for extradition has been made, constitute an offence under Irish law of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990.

10

Subject to dealing with the objections which have been put forward by Dr Michael Forde SC on the respondent's behalf, I am satisfied that this court is obliged to make the order sought.

Points of Objection:
11

Firstly, Dr Forde has submitted that the warrant of arrest issued by this Court was invalid because it recites 8 offences against the respondent instead of simply the one offence to which he pleaded guilty. I accept that, for whatever reason, an error was made when that warrant was prepared, but, as I have already stated, nothing turns upon that error and I am satisfied that the error in the warrant itself does not make the respondent's arrest upon it unlawful. It is also noteworthy that no application for release under Article 40 of the Constitution was ever made on the respondent's behalf following his arrest on foot of the warrant. The respondent was not in any way prejudiced, and was at all times aware that his extradition was being sought so that he could be sentenced for the one offence in respect of which he pleaded guilty.

12

Secondly, it is submitted that there has been a delay on the part of the United States authorities in seeking him since they were aware of his presence in Ireland since the 9th February 1999. This delay of some seven years is submitted to constitute an unreasonable and unexplained delay. Dr Forde has submitted that it would be oppressive and unfair to now extradite the respondent. I cannot accept that this ground of objection has been made out. No prejudice of any kind has been asserted. This is not even a case where after such a period of delay the respondent faces the prospect of a trial, since he has already pleaded guilty to the single offence in respect of which sentence must still be passed. There can be no room for doubt but that the respondent left the United States of America before his sentence hearing, and any delay which has occurred has been the result of that departure.

13

Thirdly, the respondent seeks to avoid an order for his extradition on the basis that the prison conditions which he will face if sentenced upon his return are such as to breach his constitutional rights. This submission is largely based upon the respondent's state of health. The Court is aware that after his arrest here on foot of the warrant issued by this Court, the respondent underwent heart by-pass surgery. However, there is no evidence other than that he has recovered satisfactorily from that surgery and is doing well. That is not disputed. However some evidence in the form of an affidavit by John Boston, a director of the prisoners' rights project of the New York City Legal Aid Society seeks to suggest that conditions in jails in the City of New York are less than satisfactory. Mr Boston states in his affidavit that he has received a number of complaints from prisoners who state that they do not actually receive the special diets which they have been prescribed by medical personnel and that staff in these jails have been unreceptive to their complaints. He also suggests that as far as any exercise programme is concerned, the respondent will, if sent to one of these jails, be on his own, and with only one hour per day out of his cell for recreation purposes five days per week. Mr Boston makes statements of a general nature to the effect that he finds that the jail and medical care system is resistant to continuing courses of treatment begun before a prisoner enters the system, or carrying out medical advice previously given. He indicates in his affidavit thathis organisation receives many complaints from prisoners about the failure to carry out treatment which has been prescribed for them. There is no need to set out in detail everything which Mr Boston states. It is sufficient...

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