Carne v Assistant Garda Commissioner O'Toole

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 21 April 2005
• Neutral Citation: [2005] IESC 22
• Court: Supreme Court
• Date: 21 April 2005

[2005] IESC 22

THE SUPREME COURT

Geoghegan J.

Fennelly J.

McCracken J.

348/04

CARNE v O'TOOLE (ASSISTANT GARDA COMMISSIONER)

IN THE MATTER OF SECTION 50 OF THE

EXTRADITION ACT, 1965, AS AMENDED

BETWEEN/

RICHARD ANTHONY CARNE

Plaintiff/Appellant

and

ASSISTANT GARDA COMMISSIONER, PATRICKO'TOOLE

Defendant/Respondent

EXRADITION ACT 1965 S50(2)(bbb)

ARMSTRONG v CONROY UNREP SUPREME 10.2.2004

European Arrest Warrant

Application for order for delivery - Points of objection - Whether respondent properly before court - Manner of arrest and caution - Caution delivered after initial questioning - Whether appropriate where garda had prior awareness of identity of accused

Whether incompliance with procedures required under - Appeal dismissed, extradition ordered

section 50(2)(bbb) of the Extradition Act 1965 provides that "by reason of the lapse of time since the commission of the offence specified in the warrant [for extradition]...and other exceptional circumstances, it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver [a person whose extradition is sought] up under section 47..." The applicant sought his release pursuant to section 50(2)(bbb) of the Act of 1965, his extradition having been sought by the authorities in England. The High Court (Ó Caoimh J.) refused the relief. The applicant appealed that decision to the Supreme Court.

Held by the Supreme Court in refusing the appeal that:

(1) In considering section 50(2)(bbb) of the Act of 1965, a court had to consider whether: (i) there had been an exceptional lapse of time; (ii) there were other exceptional circumstances and; (iii) by reason of both the lapse of time and the exceptional circumstances it would be unjust, oppressive or invidious to deliver the applicant up under section 47 of the Act of 1965.

2. That as the courts were entitled to take judicial notice of the fact that criminal trials in England were conducted in broadly similar fashion to criminal trials in this jurisdiction and the medical evidence would not be sufficient to prevent a trial in this jurisdiction, the medical evidence presented by the applicant grounding his application did not amount to exceptional circumstances to prevent his extradition.

Reporter: P.C.

1 JUDGMENT of Mr. Justice Geoghegandelivered the 21st day of April 2005

2 This is an appeal from an order of the High Court ( Ó Caoimh J.) refusing relief under section 50(2)(bbb) of the Extradition Act, 1965, as amended. The relief sought was the release of the appellant pursuant to the provisions of that paragraph, extradition of the appellant having been sought.

3 This particular statutory provision has been considered by this court in a number of cases. In its relevance to this particular case it reads asfollows:

"By reason of the lapse of time since the commission of the offence specified in the warrant ... and other exceptional circumstances, it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under section 47..."

4 In Armstrong v. Conroy two concurring unreported judgments of this court delivered by Denham J. and myself respectively on the 11th February, 2004 formed the decision of the court. In my judgment, I suggested that the court must in considering paragraph (bbb) engage in a threefold exercise as follows:

5 2 "1. It must consider whether there has been a "lapse of time" of the kind envisaged by the paragraph and in this connection having regard to the later words "and other exceptional circumstances" the "lapse of time" itself must be "exceptional".

6 2. In addition to considering whether there has been the necessary "lapse of time" the court must consider whether there were also "other exceptionalcircumstances".

7 3. If the court has come to the conclusion that the "lapseof time" within the meaning of the paragraph has occurred and that there were "other exceptional circumstances"the court must consider whether by reason of both the lapse of time and the exceptional circumstances it would be unjust, oppressive or invidious to deliver the applicant up under section 47 and in carrying out this exercise the court should have "regard to all thecircumstances". The expression "all thecircumstances" may include matters other than the "exceptional circumstances" such as for instance the family situation of the applicant."

8 For the purposes of this appeal both sides accepted these principles. Any problem that arose was in relation to the application of them.

9 The appellant in this case has been accused in England of a series of sexual offences alleged to have been committed against five separate girls under the age of thirteen years between the 1st January, 1980 and the 31st December, 1997. An affidavit sworn by one Richard Glenister of the English Crown Prosecution Service establishes that the first girl to come forward and complain did so on the 11th July, 1998. The offence alleged against her is one of indecent assault alleged to have been committed between the 1st January, 1990 and the 31st December, 1991, she being then a female under the age of thirteen years a factor which was a constituent of the particular statutory offence. There were delayed complaints by each of the relevant girls. The appellant was served with papers that informed him of the case made against him and the case was transferred to Plymouth Crown Court on the 25th January, 1999. The appellant failed to answer his bail on the 23rd April, 1999 and a warrant was immediately issued for his arrest. Eventually, after making enquiries the English police discovered in August, 1999 that the appellant had been living in Dublin and in receipt of social welfare benefits since July, 1999. Nine warrants were then...