Clarke v McMahon

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,McCarthy J.,
• Judgment Date: 13 March 1990
• Neutral Citation: 1990 WJSC-SC 240
• Court: Supreme Court
• Docket Number: [1988 No. 852 J.R.]
• Date: 13 March 1990

1990 WJSC-SC 240

THE SUPREME COURT

Finlay C.J.

Walsh J.

Griffin J.

Hederman J.

McCarthy J.

304/89

CLARKE v. MCMAHON

JAMES PIUS CLARKE

Plaintiff/

Appellant

and

JOHN PAUL McMAHON

Defendant/

Respondent

AND IN THE MATTER OF ARTICLE 40 OF THE CONSTITUTION

JAMES PIUS CLARKE

Applicant/

Appellant

and

THE GOVERNOR OF PORTLAOISE PRISON

Respondent

Citations:

EXTRADITION ACT 1965 S50

CONSTITUTION ART 40

FINUCANE V GOV PORTLAOISE PRISON UNREP SUPREME 13.3.90

EXTRADITION ACT 1965

EXTRADITION ACT 1965 PART III

BACKING OF WARRANTS (IRL) ACT 1965 (UK)

RUSSELL V FANNING 1988 IR 339

Synopsis:

HIGH COURT

Jurisdiction

Extradition - Constitution - Personal rights - Protection - Foreign court - Conviction - No power of review but power to protect personal rights - (304/89 - Supreme Court - 13/3/90) - [1990] 1 I.R. 228 - [1990] ILRM 648

|Clarke v. McMahon|

CRIMINAL LAW

Extradition

Foreign court - Conviction - Review - Evidence - Admissibility - Accused's statement - Voluntariness - Applicant detained pursuant to order of District Court - Legality of detention under Irish law - Jurisdiction of High Court - The jurisdiction of the High Court does not include a jurisdiction to review a conviction imposed by a foreign court - Nevertheless, the High Court has jurisdiction to protect the constitutional rights of an applicant who has invoked the provisions of Article 40.4.2 of the Constitution - In order to protect the applicant's constitutional rights, it was necessary to direct his release because of the misconduct of the staff of the Northern Ireland prison in 1983 and the absence of any prosecution, punishment or reprimand of such prison staff - Extradition Act, 1965, s. 50 - Constitution of Ireland, 1937, Article 40 - (304/89 - Supreme Court - 13/3/90) - [1990] 1 I.R. 228 - [1990] ILRM 648

|Clarke v. McMahon|

CONSTITUTION

Personal rights

Liberty - Protection - Foreign court - Conviction - Escape of prisoner - Jurisdiction of High Court - No power of review but power to protect applicant from ill-treatment - (304/89 - Supreme Court - 13/3/90) - [1990] 1 I.R. 228 - [1990] ILRM 648

|Clarke v. McMahon|

1 JUDGMENT delivered on the 13th day of March 1990by FINLAY C.J.

2 This is an appeal brought by the Appellant, who is a citizen of Ireland, against the Order made in the High Court on the 28th July 1989 by Costello J. refusing botha claim for release pursuant to Section 50 of the Extradition Act 1965and also a claim for release pursuant to Article 40 of theConstitution.

3 The Appellant appealed on a number of grounds against the entire of that Order made in the two separate proceedings which had been heardtogether.

4 Upon the hearing before this Court of the appeal, however, Counsel for the Appellant expressly abandoned his appeal against the dismissal of his claim under Section 50 of the Act of 1965. This had been a claim that the offence for which the Appellant had been convicted and in respect of the balance of the sentence arising from which his return to Northern Ireland was requested was a political offence and that the other offences which surrounded his escape from the Maze Prison were offences connected with that political offence. No reason was given for abandoning that appeal, though it may have been associated with the facts surrounding the offence which seemed to indicate that an attack was made on a house in which a member of the UDR resided, and that it involved indiscriminate shooting into the house and into a car which arrived at the house as a result of which serious injuries to a number of men,women and children, who were members of the family, were caused.

5 With regard to the appeal against the decision of Costello J. on the application pursuant to Article 40 of the Constitution, two grounds of appeal were argued.

6 They are:

7 1. That evidence now produced leads to the conclusion that the conviction of the Appellant resulted from a statement signed by him which was untrue and which was obtained by assault and intimidation whilst he was in the custody of the RUC. It was then urged that accordingly to deliver him into Northern Ireland to serve the balance of the sentence imposed on him would be a failure to defend or protect his constitutional rights.

8 2. That the evidence of the conduct of the prison staff towards prisoners in the Maze Prison, in the aftermath of the mass escape from the Maze Prison on the 23rd September 1983, in which the Appellant took part, together with the evidence of their later conduct and testimony in claims brought by prisoners for damages for assault, allied to the absence of any attempt by their superior authorities to discharge or discipline any member of the prison staff, led to a conclusion that to deliver theAppellant to serve the balance of his sentence in the Maze Prison would be a failure to protect his constitutional rights.

Challenge to conviction of Appellant

9 The Appellant was arrested on the 26th March 1978, in Northern Ireland, and was charged with attempted murder and a number of other offences arising out of an armed raid carried out by a number of men on the home of a family called Harper in Castlederg, in Co. Tyrone, on the 2nd February 1977.

10 Whilst in the custody of the RUC on the 27th March 1978, he made a statement, which he signed, admitting his participation in the raid, and identifying the type of weapon which he used and the part in the raid which he took, which consisted of firing at a car that arrived into the farmyard during the raid. Some of the details contained in this statement were at his subsequent trial corroborated in part by forensic evidence, though such evidence did not afford proof of the Appellant's participation in the raid.

11 He was tried before His Honour Judge Russell at the Crown Court in Belfast, sitting without a jury, and he was represented at the trial by a Solicitor and by Juniorand Queen's Counsel. From the judgment of Russell J. which was exhibited in the High Court, it is clear that no challenge was made to the admissibility of this Appellant's statement, or to the method by which it had been obtained. The Appellant did not give any evidence nor tender any evidence on his behalf. He was convicted of a number of offences and sentenced on the 1st June 1979 to a number of different concurrent terms of imprisonment, the longest of which was eighteen years.

12 The Appellant has now deposed on affidavit that this statement was untrue and that it was obtained from him by a mixture of physical assault and intimidation, and he has tendered two affidavits, from his mother and from a friend, both of whom visited him whilst he was in the custody of the RUC, seeking to support his complaints ofill-treatment.

13 Although the Appellant now denies guilt for the offences of which he was convicted, the only explanation given by...