Ellis v O'Dea

• Jurisdiction: Ireland
• Judge: WALSH J.,McCarthy J.,,FINLAY C.J.
• Judgment Date: 01 January 1990
• Date: 01 January 1990
• Docket Number: [1989 No. 189 J.R.; 1989 No. 290 S.C.]
• Court: Supreme Court

1989 WJSC-SC 1372

THE SUPREME COURT

Finlay C.J.

Walsh J.

McCarthy J.

290/89

ELLIS v. O'DEA

DESMOND ELLIS

v.

THE ASSISTANT COMMISSIONER EDWARD O'DEA and DISTRICT JUSTICESHIELS

Citations:

EXTRADITION ACT 1965

EXPLOSIVE SUBSTANCES ACT 1883

CRIMINAL JURISDICTION ACT 1975 (U.K.)

FURLONG, STATE V KELLY 1971 IR 132

WYATT V MCLOUGHLIN 1974 IR 378

GILLESPIE V AG 1976 IR 233

EXTRADITION ACT 1965 S51

EXTRADITION ACT 1965 S54

HULLY, STATE V HYNES 100 ILTR 145

REPUBLIC OF IRELAND ACT 1948

EXTRADITION ACT 1965 S54(1)

EXTRADITION ACT 1965 S55

EXTRADITION ACT 1965 PART III

EXTRADITION ACT 1965 S43

EXTRADITION ACT 1965 S47

CONSTITUTION ART 29.4.1

RUSSELL V FANNING 1988 IR 505, 1988 ILRM 333

SHANNON V FANNING 1984 IR 569

CONSTITUTION ART 4

REPUBLIC OF IRELAND ACT 1948 S2

IRELAND ACT 1949 (U.K.)

Synopsis:

CRIMINAL LAW

Extradition

Warrant - Validity - Information - Procurement - Fair procedures - Warrant issued by foreign magistrate - Sworn information grounding warrant - Copy of information not furnished - Provision of copy not a statutory proof - Name of the State- Republic of Ireland Act, 1948, s. 2 - Extradition Act, 1965, ss. 47, 55 - Constitution of Ireland, 1937, Articles 38, 40 - (290/89 - Supreme Court - 5/12/89) [1990] ILRM 87

|Ellis v. O'Dea|

CONSTITUTION

State

Name - Eire - Ireland - Reference to Republic of Ireland in extradition documents - Improper name - (290/89 - Supreme Court - 5/12/89) [1990] ILRM 87

|Ellis v. O'Dea|

CONSTITUTION

Personal rights

Fair procedures - Warrant - Validity - Information - Procurement - Warrant issued by foreign magistrate - Sworn information grounding warrant - Copy of information not furnished - Copy information not a statutory proof - (290/89 - Supreme Court - 5/12/89) [1990] ILRM 87

|Ellis v. O'Dea|

NATURAL JUSTICE

Fair procedures

Extradition - Warrant - Validity - Information - Procurement - Sworn information laid before foreign court - Copy information not received - Copy information not a statutory proof - (290/89 - Supreme Court - 5/12/89) [1990] ILRM 87

|Ellis v. O'Dea|

1 JUDGMENT delivered on the 5th day of December 1989by FINLAY C.J.

2 I have had the opportunity of reading the judgment about to be delivered by Walsh J. in this case, and I agree that this appeal should be dismissed, and I agree with the reasons set out in that judgment for itsdismissal.

3 In so far as the existence in the Warrants in this case of a charge of conspiracy, neither formed part of the grounds upon which the Applicant sought a prohibition in the High Court, nor was the subject of any debate or argument in this Court I would prefer to express no view on the consequences of the inclusion of such a charge in the Warrants the subject matter of an application under the Extradition Act 1965.

4 I agree that it is most undesirable that the name of the State should be incorrectly set out in theWarrants which are concerned in this case. Since, again, however, no issue arose by reason of that misnomer and no argument was presented to this Court upon it, I prefer to reserve the question as to whether in any case it would constitute good grounds for refusing to make an order for the delivery of the person whose extradition was sought.

5 JUDGMENT OF WALSH J.delivered on the 5th day of December 1989

6 On the 26th June 1989 the applicant was granted leave by the High Court to apply by way of judicial review for an order of prohibition against the respondents to prohibit them from proceeding with an extradition hearing at the District Court due to take place on June 29th 1989, which concerned two warrants issued on April 24th 1989 by an English magistrate. On the hearing of the application for judicial review on the 27th July 1989 before Mr. Justice Costello in the High Court itwas ordered that the application for the order of prohibition be refused. This appeal is taken against the order and judgment of the High Court refusing the order of prohibition.

7 The arrest warrants issued in England were issued while the applicant/appellant was a prisoner in Portlaoise Prison.

8 One warrant charged him with having unlawfully and maliciously conspired together with three named persons and "other persons" to cause an explosion by an explosive substance likely to endanger life or cause injury to property in the United Kingdom. The warrant alleged that the conspiracy had taken place within the jurisdiction of the Central Criminal Court for England and Wales, and that the offence having been committed between the 1st day of January 1981 and the 27th day of October 1983.

9 The second warrant charged the applicant/appellant with having had, in his possession, between the 1st of January 1981 and the 27th October 1983 within thejurisdiction of the Central Criminal Court for England and Wales unlawfully and maliciously in his possession or under his control explosive substances with intent by means thereof to endanger life or to cause serious injury to property in the United Kingdom or to enable other persons to do so.

10 Each of these offences was laid as being contrary to the Explosive Substance Act, 1883 (a United Kingdom statute) and the Criminal Jurisdiction Act, 1975 (also a United Kingdom statute). The said warrants were endorsed for execution by the first-named respondent and the matter came on for hearing before the District Court, sitting in Dublin on April 27th 1989, that is to say three days after the issue of the warrants in England. The case was then adjourned and the applicant retained a solicitor on the 2nd May 1989 and the case was subsequently mentioned in the District Court. The case was again mentioned on seven subsequent dates in the District Court, the last one being the 26th June1989.On the latter date when the matter was before the District Court the solicitor for the applicant informed the District Court that as he had not received a copy of the sworn information or informations upon which the warrants were based he could not properly proceed with the case and applied for an adjournment pending the receipt of the informations. It was accepted that he had applied to the United Kingdom prosecuting authorities for the informations but had received no reply to his request. The State Solicitor in charge of the case indicated that in his view the matter was one for the British authorities and that he could not state when, or if, any such informations would be available and he opposed the application for an adjournment. The District Justice refused an adjournment but indicated that he thought the appropriate application ought to be for an order of prohibition. That is the course which was followed and that is the matter which is now under review.

11 The leave to apply for judicial review which was given by the High Court on the 26th June 1989 was given onthe grounds that the failure to provide a "true copy of the information or informations mentioned in the said warrants"constituted:-

12 (a) an unfair procedure injuriously affecting the applicant's right to prepare a defence and "it is therefore contrary to the Constitution" and

13 (b) an abuse of the process of the Extradition Act, 1965;

14 (c) an unjust interference with or denial of access to the Courts or the right to freely litigate an issue on the validity of a citizen'sdetention;

15 (d) a procedure or circumstance which provides for a substantial and unjustified imbalance between the rights of the applicant herein and the party or parties relying on the said warrant and moving for hisrendition.

16 In the High Court, as in this Court, the case was argued on two grounds, namely -

17 (a) that the refusal to furnish the informations to him frustrates his constitutional right to access tothe Courts and that

18 (b) his constitutional right to fair procedures is denied to him because of the refusal to get the documents he seeks.

19 He does not claim that any of the procedures for the production and evidence of the warrants and the necessary accompanying documentation was in any way irregular or in any way failed to comply with the provisons of the Extradition Act, 1965. What he has argued is that his inability to have access to the informations, or to have a sight of them, hampers his right to challenge the validity of the warrants. The statutory functions and powers of the District Court under the 1965 Act have been the subject of a number of cases and had been interpreted in these cases, particularly in the cases of the State (Furlong) v. Kelly 1971 I.R. 132, Wyatt v.McLoughlin 1974 I.R. 378 and Gillespie v. The AttorneyGeneral 1976 I.R. 233. It has not been claimed that the procedures laid down by the Act as interpreted by these decisions have not been followed. Essentiallythese requirements are that there should be the necessary evidence of the validity of the warrant and the associated documentation together with sufficient evidence to satisfy the District Justice that the person before him is in fact the person named or described in the warrant or warrants. Also, and most importantly, the offence or offences charged in the warrants must correspond with offences under the law of Ireland and which are indictable offences or, if punishable on summary conviction, by imprisonment for a maximum period of at least six months. It is, of course, always open to a detained person, arrested under an extradition warrant, to contest the proof of any of these matters. If as a result of any evidence given or legal submissions made in the District Court anything arises in the nature of fatal defects appearing on the face of the documents or there are other matters sufficient to warrant the Court holding that it ought not to accept the proofs presented in pursuance of the statute, then the District Justice may decline to make the order for the extradition sought. Alternatively he may adjourn the proceedings pending the presentationof further evidence on behalf of the...