Bourke v Attorney-General and Wymes

JurisdictionIreland
CourtSupreme Court
Judgment Date01 January 1973
Date01 January 1973
Docket Number(1968 No. 2544 P.)

Supreme Court

(1968 No. 2544 P.)
Bourke v. Attorney General
SEAN ALPHONSUS BOURKE
Plaintiff
and
THE ATTORNEY GENERAL and MICHAEL J. WYMES
Defendants.

Criminal Law - Extradition - Political offence - Escape from prison by convicted spy - Plaintiff assisting in escape - Whether plaintiff's offence was connected with a political offence - Extradition Act, 1965 (No. 17) s. 11, sub-s. 1; s. 50, sub-ss.1 & 2.

Plenary Summons.

On the 25th October, 1968, a magistrate in England issued a warrant which was addressed to the constables of the Metropolitan Police Force in London; the warrant recited that information on oath had been laid before the magistrate that the plaintiff on the 22nd October, 1966, at Wormwood Scrubs Prison, London, aided George Blake, a prisoner in the said prison, in escaping from the said prison contrary to s. 39 of the Prison Act, 1952, and the warrant commanded the said constables to bring the plaintiff before the Bow Street Magistrates' Court forthwith to answer to the said information. On the 12th January, 1967, a Justice of the Peace in England issued a warrant which was addressed to the constables of the West Sussex Police; that warrant recited that information on oath had been laid that the plaintiff between the 31st December, 1966, and the 4th January, 1967, maliciously caused to be received by Michael John Sheldon a letter, knowing the contents thereof, threatening to kill or murder him contrary to s. 16 of the Offences against the Person Act, 1861. The two warrants were received in Dublin at the same time.

The warrant dated 25th October, 1968, was endorsed for execution in Ireland by an Assistant Commissioner of the Garda Síochána. The plaintiff was arrested in Ireland under Part III of the Extradition Act, 1965, and was brought before the District Court. On the 31st October, 1968, District Justice Farrell ordered that the plaintiff be delivered at Dublin Airport into the custody of a duly authorised member of a police force of England and Wales for conveyance to England and Wales. The order of the District Justice was based upon, and recited, the warrant dated the 25th October, 1968, only.

On the 31st October, 1968, the plaintiff issued and delivered a plenary summons and statement of claim and named the Attorney General and Michael J. Wymes, Commissioner of the Garda Síochána, as defendants. The plaintiff claimed (a) an order pursuant to s. 50 of the Extradition Act, 1965, directing that the plaintiff be released from custody and (b) an injunction restraining the defendants, pending the termination of the proceedings, from delivering the plaintiff into the custody of a member of a police force of the United Kingdom. On the 4th November, 1968, the High Court (Henchy J.) admitted the plaintiff to bail pending the determination of his action. The pleadings in the action were closed on the 2nd December, 1968.

Section 50 in Part III of the Act of 1965 provides as follows:—

"50.—(1) A person arrested under this Part shall be released if the High Court or the Minister so directs in accordance with this section.

(2) A direction under this section may be given by the High Court where the Court is of opinion that—

  • (a) the offence to which the warrant relates is—

    • (i) a political offence or an offence connected with a political offence, or

    • (ii) an offence under military law which is not an offence under ordinary criminal law, or

    • (iii) a revenue offence, or

(b) there are substantial reasons for believing that the person named or described in the warrant will, if removed from the State under this Part, be prosecuted or detained for a political offence or an offence connected with a political offence or an offence under military law which is not an offence under ordinary criminal law, or . . . ."

Section 11, sub-s. 1, in Part II of the Act of 1965 provides that "extradition shall not be granted for an offence which is a political offence or an offence connected with a political offence." Part II of the Act of 1965 is not part of the municipal law of Ireland in regard to extradition between Ireland and Great Britain: The State (Holmes) v.Furlong.1 Extradition between Ireland and Great Britain is governed by the provisions of Part III of the Act of 1965:ibid. at p. 215.

On the 28th November, 1968, the solicitor for the defendants wrote to the plaintiff's solicitor stating that when the plaintiff was arrested on the 31st October he had been informed of the existence of the warrant of the 12th January, 1967, and the solicitor for the defendants enclosed a copy of the warrant of 1967. On the 4th November, 1968, the High Court (Henchy J.) made an order admitting the plaintiff to bail pending the determination

of his action. On the 13th January, 1969, the High Court (O'Keeffe P.) ordered the Director of Radio Telefís Eireann to attend the hearing and to produce certain films, video tapes, recordings etc. in his possession or control in relation to three interviews with the plaintiff.

The plaintiff's action was tried by O'Keeffe P., without a jury, on the 20-24th and 27th January, 1969. During the hearing of the action a letter from the Attorney General for England and Wales to the Attorney General was admitted in evidence. In that letter the writer (Sir F. Elwyn Jones) gave an undertaking that, if extradited, the plaintiff would be put on trial in England for the offence under s. 39 of the Act of 1952 and the offence under the Act of 1861 only.2 The writer also stated that it was possible for a prosecution to be initiated by a private person but that in that event he would exercise his power to direct the Director of Public Prosecutions to assume responsibility for such prosecution and to withdraw it, and the writer undertook to enter a nolle prosequi to any such prosecution. The writer added the undertakings given by him were given on his own behalf as Attorney General for England and Wales and on behalf of the Director of Public Prosecutions. The writer concluded his letter by stating that he was prepared to instruct counsel to appear before the High Court, at the hearing of the plaintiff's action, on behalf of the writer and of the Director of Public Prosecutions to give the said undertakings to the High Court. During the trial of the plaintiff's action counsel appeared in the High Court and repeated the said undertakings on behalf of the Attorney General for England and Wales and on behalf of the Director of Public Prosecutions.

In October, 1966, a convicted spy escaped from a prison in England. An information was laid in England that the plaintiff had assisted the spy to escape from prison contrary to s. 39 of the Prison Act, 1952. The plaintiff was arrested in Ireland pursuant to an English warrant which recited that information and which had been endorsed in Ireland for execution there pursuant to s. 43 in Part III of the Extradition Act, 1965. The District Court ordered that the plaintiff be delivered into the custody of the English police for conveyance to England. Section 50 in Part III of the Act of 1965 provides that a person arrested under Part III shall be released if the High Court so directs, and enacts that adirection may be given" if the High Court is of opinion that (a) the offence to which the warrant relates is a political offence or "an offence connected with a political offence," or (b) there are "substantial reasons" for believing that a person arrested if extradited under Part III, will be prosecuted or detained for a political offence or an offence connected with a political offence. By a plenary summons issued in the High Court, the plaintiff claimed an order directing his release under s. 50 of the Act of 1965. At the hearing of the summons the plaintiff admitted that he had assisted the spy to escape from prison and that he had harboured the spy after the escape, and the plaintiff gave evidence of the motives for his actions. The High Court received an undertaking from the Attorney General for England and Wales that the plaintiff, if extradited, would be prosecuted only for the offence under s. 39 of the Act of 1952 and one other offence. The phrase "an offence connected with a political offence" appears also at s. 11 in Part II of the Act of 1965. Part II is based on the European Convention on Extradition but does not apply to extradition between Ireland and Great Britain.

Held by O'Keeffe P., in directing the release of the plaintiff, 1, that the motives of the plaintiff were not sufficient to change an offence, which was not political, into a political offence.

2. That the plaintiff's assistance in the escape of the spy from prison was not a political offence within the meaning of s. 50, sub-s. 2, of the Act of 1965.

3. That the spy's original espionage offences were political offences under s. 50, sub-s. 2, and that the plaintiff's offence of assisting the spy to escape from prison was "connected with" the spy's original espionage offences within the meaning of that sub-section.

4. That, in these circumstances, the Court's discretion under s. 50 of the Act of 1965 could only be exercised by directing the release of the plaintiff.

5. That, in order to determine whether there were "substantial grounds" within the meaning of s. 50, sub-s. 2 (b), it was necessary and desirable (a) that the Court should receive information about any further charges not mentioned in the warrant, which were to be made against the person arrested after he had been extradited; and (b) that the Court should receive and consider any undertaking not to prosecute the person arrested for certain offences, if that undertaking was given by the competent authority of the country seeking the extradition of the person arrested.

6. That there were no substantial grounds for believing that the plaintiff, if extradited, would be prosecuted or detained for the offence of harbouring the spy.

On appeal by the defendants it was

Held by the Supreme Court ( Ó...

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