B (M) v Conroy (Assistant Commissioner)

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 01 March 2001
• Neutral Citation: [2001] IESC 26
• Court: Supreme Court
• Date: 01 March 2001

[2001] IESC 26

THE SUPREME COURT

KEANE C.J.

MURRAY J.

GEOGHEGAN J.

82/99

B (M) v. CONROY (ASSISTANT COMMISSIONER)

BETWEEN:

M. B.

Plaintiff/Respondent

and

ASSISTANT COMMISSIONER NOEL CONROY

Defendant/Appellant

Citations

EXTRADITION ACT 1965 S47(1)

EXTRADITION ACT 1965 S50

EXTRADITION ACT 1965 S50(2)(bbb)

FUSCO V O'DEA (NO 2) 1998 3 IR 470

KWOK MING WAN V CONROY 1998 3 IR 527

KAKIS V REPUBLIC OF CYPRUS 1978 1 WLR 779

Synopsis:

Extradition

Extradition; lapse of time; exceptional circumstances; plaintiff had been convicted of sexual assault on his stepdaughter in Manchester Crown Court on 9 November, 1992, to which he pleaded guilty; plaintiff had been remanded for preparation of a probation report but had failed to appear in court; plaintiff had come to Ireland and had stayed initially with his parents and had claimed disabled person's maintenance allowance; Manchester Crown Court had issued a warrant for arrest of plaintiff on 4 December, 1995, and that warrant had been endorsed in this jurisdiction on 3 January, 1996; same had been executed by District Court on 8 January, 1996, and on 18 April, 1996, District Court had made an order for delivery of plaintiff into custody of Manchester Police; plaintiff had instituted proceedings seeking an order for his release on 19 April, 1996, but case was not heard until 9 February, 1999; part of delay attributable to illness of plaintiff; plaintiff claims that at no time since he returned to Ireland did he attempt to hide his whereabouts and that information as to his address had been easily obtainable; High Court had directed that plaintiff entitled to an order directing his release due to exceptional circumstances; defendant appeals this judgment; whether lapse of time sufficient to trigger exempting provisions; whether lapse of time and other exceptional circumstances made lapse of time unjust, oppressive or invidious in all the circumstances to deliver up plaintiff; whether plaintiff's health in conjunction with the inaction of the prosecuting authorities constitute an exceptional circumstance.

Held: Appeal dismissed.

B. (M) v. Conroy - Supreme Court: Keane C.J., Murray J., Geoghegan J. - 01/03/2001 - [2001] 2 ILRM 311

The respondent returned to Ireland while on remand after being convicted on a plea of guilty to indecent assault in England. The English authorities took steps to secure his extradition. On 4 December, 1995 a warrant was issued in England for his arrest. It was executed on 8 January, 1996 and on 18 April, 1996 the District Court made an order his delivery. The applicant challenged the order claiming that he was entitled to be released under section 50(2)(bbb) of the Extradition Act, 1965 by reason of the lapse of time since the commission of the offence and other exceptional circumstances, including his ill health and the fact that he had lived openly in this jurisdiction. The High Court ordered his release. The Assistant Garda Commissioner appealed against the decision. The Supreme Court held that the significant lapse of time for which the prosecuting authorities in the requesting jurisdiction must bear some responsibility had led to a situation in which to expose the respondent to further legal process in England in his present state of health would be oppressive and invidious. The order of the High Court would be affirmed and the appeal of the Assistant Garda Commissioner dismissed.

1 JUDGMENT delivered the 1st day of March 2001 byKeane C.J. [nem diss]

Keane C.J.

2 The plaintiff in these proceedings was convicted at Manchester Crown Court on the 9th November 1992 of an offence of indecent assault, which was alleged to have occurred on a day between 1st December 1988 and 31st March 1990, and to which he pleaded guilty. His case was remanded until 7th December 1992 for the preparation of a probation report. However, the plaintiff failed to appear in court on that date: he had left Manchester and returned to Ireland where he had been born and brought up.

3 On the 4th December 1995, the Manchester Crown Court issued a warrant for the arrest of the plaintiff for the offence in question and that warrant was endorsed for execution within the State on 3rd January 1996. It was executed on the 8th January 1996 and on the 18th April 1996 the District Court made an order for the delivery of the plaintiff into the custody of the Manchester police, pursuant to the provisions of s. 47(1) (contained in Part III) of the Extradition Act,1965(hereafter "the 1965 Act").

4 The plaintiff then instituted these proceedings by special summons on the 19th April 1996, seeking an order for his release pursuant to s. 50 of the 1965 Act as amended. The case was not heard until the 9th February, 1999, some part at least of the delay being attributable to the illness of the plaintiff. In a written judgment delivered on the 5th March 1999, McCracken J. held that the plaintiff was entitled to an order directing his release. From that judgment and order, the defendant now appeals to this court.

5 It would appear from affidavits sworn by members of An Garda Siochana that the offence which was the subject matter of the present proceedings first came to the attention of the Irish police in August 1995 when they were investigating a complaint of a sexual assault allegedly committed by the plaintiff on another person when he (the plaintiff) was living in Tallaght in 1990/91. The investigating garda had asked that a statement be obtained in Manchester from the Plaintiff's stepdaughter and then learned, during a conversation by telephone with a member of the Manchester police, that the plaintiff had left the United Kingdom having pleaded guilty to an assault on the stepdaughter.

6 An English police officer deposed on affidavit that, as a result of the failure of the plaintiff to appear at Manchester Crown Court for sentence on 7th December 1992, a warrant for his arrest was issued and he was circulated as wanted on the police national computer to alert police forces within the United Kingdom. She further deposed that, as far as she was aware, knowledge of his whereabouts in Ireland was only received following the telephone conversation to which I have already referred between an Irish garda and an English police officer on the 16th August 1995.

7 The plaintiff in an affidavit said that he had pleaded guilty to the charge of indecent assault at the Manchester Crown Court having taken the advice of his lawyers. He denied that he had in fact committed the assault and said that he had returned home to Ireland without awaiting sentence because he did not want to go to prison for something that he claimed he had not done. The plaintiff further deposed that, on his return to Ireland, he lived initially with his parents and claimed the disabled persons” maintenance allowance. In September 1993, he moved into his own flat in Kilmainham and notified the Department of Social Welfare of his change of address. He said that at no time since he returned to Ireland had he attempted to hide his whereabouts and that information as to his address would have been easily obtainable. He said that, although he was separated from his wife since 1990, he believed that his parents” address would have been well known to her.

8 The plaintiff also said that for many years now he had been chronically ill with a severe steroid dependent asthma and had a separate condition of insulin dependent diabetes mellitus. He said that he had been admitted to hospital on numerous occasions both in Ireland and in England as a result of his diabetic condition and that most admissions had been in life threatening situations.

9 The plaintiff's evidence as to his medical condition was confirmed by Dr. Luke Clancy, a consultant respiratory physician attached to St. James” Hospital. He said that, since the commencement of these...