Ellis v O'Dea (No. 2)

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: McCarthy J.,FINLAY C.J.
• Judgment Date: 01 January 1991
• Docket Number: [1990 No. 46 Sp. Ct. 6; 1990 No. 441 SS.]
• Date: 01 January 1991

ELLIS v. O'DEA

IN THE MATTER OF THE EXTRADITION ACTS 1965– 1987

BETWEEN

DESMOND ELLIS

Plaintiff/

Appellant

and

ASSISTANT COMMISSIONER EDWARD JOHN O'DEA

Defendant/

Respondent

AND IN THE MATTER OF THE CONSTITUTION, ARTICLE 40 THEREOF

BETWEEN

DESMOND ELLIS

Applicant

and

THE GOVERNOR OF PORTLAOISE PRISON

Respondent

1990 WJSC-SC 2619

Finlay C.J.

Griffin J.

Hederman J.

McCarthy J.

O'Flaherty J.

278/90

THE SUPREME COURT

Synopsis:

CRIMINAL LAW

Extradition

Exception - Foreign warrant - Offence charged - Domestic offence - Correspondence - Statutory considerations - Issue of warrant - Time lapse - Relevance - Foreign court - Fair procedures - Whether applicant's constitutional rights threatened - Explosive Substances Act, 1883, ss. 2, 3 - Extradition Act, 1965, ss. 47 , 50 - Criminal Law (Jurisdiction) Act, 1976, s. 4 - Constitution of Ireland, 1937, Article 40 - (278/90 - Supreme Court - 14/11/90) - [1991] 1 I.R. 251 - [1991] ILRM 346 - [1991] I.L.T. 126

|Ellis v. O'Dea|

DELAY

Absence

Time lapse - Relevance - Foreign warrant - Execution - Recital of offence - Lapse of time between date of offence and date of issue of warrant - Notice of intention to charge accused - Whether defence hampered - (278/90 - Supreme Court - 14/11/90) 1991 1 IR 251

|Ellis v. O'Dea|

Citations:

EXPLOSIVE SUBSTANCES ACT 1883 S3(1)(a)

EXPLOSIVE SUBSTANCES ACT 1883 S3(1)(b)

CONSTITUTION ART 40

EXTRADITION ACT 1965 S50

EXTRADITION ACT 1965 S50(2)(bbb)

EXTRADITION ACT 1965 S47

EXTRADITION (EUROPEAN CONVENTION ON THE SUPPRESSION OF TERRORISM) ACT 1987 S4

EXTRADITION (EUROPEAN CONVENTION ON THE SUPPRESSION OF TERRORISM) ACT 1987 S3

EXTRADITION (EUROPEAN CONVENTION ON THE SUPPRESSION OF TERRORISM) ACT 1987 S3(a)(v)

EXPLOSIVE SUBSTANCES ACT 1883 S3

CRIMINAL LAW (JURISDICTION) ACT 1976 S4

CRIMINAL JURISDICTION ACT (UK) 1975 S7

EXTRADITION (AMDT) ACT 1987 S2

FINUCANE V MCMAHON 1990 ILRM 505 1990 IR 202

MCMAHON V LEAHY 1984 IR 525

EXTRADITION ACT 1965 PART 111

RUSSELL V FANNING 1988 IR 525

ELLIS V O'DEA 1989 IR 530

INTERPRETATION ACT 1937 S11(a)

ELLIS V O'DEA UNREP HIGH HAMILTON 30.07 1990

EXTRADITION ACT 1965 S50(2)(bb)

EXTRADITION (AMDT) ACT 1987

EXTRADITION (EUROPEAN CONVENTION ON THE SUPPRESSION OF TERRORISM) ACT 1987 S3(1)

EXTRADITION (EUROPEAN CONVENTION ON THE SUPPRESSION OF TERRORISM) ACT 1987 S9

1 JUDGMENT delivered on the 14th day of November 1990by FINLAY C.J. [GRIFFIN, HEDERMAN, O'FLAHERTY CONC]

2 By two District Court Orders made on the 8th January 1990, pursuant to the provisions of the Extradition Act 1965, it was directed that the Appellant herein be delivered into the custody of a member of theMetropolitan Police Force of England and Wales for conveyance to Bow Street Magistrates" Court to answer

3 (a) A charge of conspiracy to cause an explosion, and

4 (b) A charge of having in his possession or under his control explosive substances with intent by means thereof to endanger life or cause serious injury to property.

5 These offences are respectively stated to be contrary to Section 3(1)(a) and Section 3(l)(b) of the Explosive Substances Act 1883 and Section 7 of the Criminal Jurisdiction Act 1975.

6 The Appellant instituted proceedings by Special Summons seeking an Order for his release pursuant to the Extradition Acts 1965to 1987, and also sought an Order for his release from custody, pursuant to Article 40 of the Constitution. These two separate proceedings were heard together in the High Court by Hamilton P. who, on the 30th July 1990, having delivered a reserved judgment, made an Order refusing the relief sought,pursuant to the Extradition Acts 1965to 1987, and holding that the return made to the Order of Habeas Corpus was sufficient to justify the detention of the Applicant under the Orders for his detention and delivery.

7 The claims made by the Appellant in the High Court were

8 (a) For an Order discharging the Order for Delivery, pursuant to Section 50 of the Act of 1965 on the grounds that the offences the subject matter of the Warrants were political offences or offences connected with political offences.

9 (b) For an Order pursuant to Section 50(bbb) of the Act of 1965 as inserted by the Extradition (Amendment) Act 1987declaring that by reason of the lapse of time since the commission of the offence and other exceptional circumstances it would be unjust, oppressive or invidious to deliver the Appellant up under Section 47, and discharging the Ordersmade accordingly.

10 (c) A claim that the offences charged in the Warrants did not correspond with any offence in Irish law.

11 (d) The grounds on which the Applicant sought to be released, pursuant to the provisions of Article 40 of the Constitution, in the High Court were as follows:

12 (i) That there was no or insufficient evidence to ground the request for extradition.

13 (ii) That if extradited there was a substantial risk or danger that the Plaintiff would be exposed to acts and procedures in and incidental to his trial which would fail to guarantee him a fair trial.

14 (iii) That the practice of prosecuting and the accepted modes of proof in respect of conspiracy charges in the United Kingdom fell short of an acceptable standard as to the certainty and clarity required in a fair and proper criminal trial.

15 (iv) That there was a substantial risk that thePlaintiff would before and during his trial be exposed to prejudicial publicity in newspapers andtelevision.

16 (v) That there was a significant risk of incorrect, misleading, inadequate and/or insufficiently controlled forensic evidence being tendered against the Applicant.

17 With regard to the Plaintiff's claim for exemption from delivery on the grounds that the offences were political offences or connected with political offences, the learned President concluded

18 (a) that the offences were serious offences,

19 (b) that they involved acts of violence against the life and physical integrity of persons, and

20 (c) that they involved an act against property, which created a collective danger for persons.

21 He accordingly ruled that having regard to the provisions of Section 4 of the Extradition (European Convention on the Suppression of Terrorism) Act 1987(the No. 1 Act of 1987) they could not be considered to be political offences or offences connected with political offences. In so concluding, the learned trial Judge ruled that the offences charged did not come within Section 3 of that Act on the grounds that the appropriate sub-clause, namely, 3(a)(v) spoke only of an offence involving the use of an explosive or an automatic firearm, if such endangered persons, and would not apply to an offence endangering a person only.

22 The Appellant did not appeal against the finding made by the learned President that these offences, by virtue of the provisions of the No. 1 Act of 1987 could not be deemed to be political offences for the purpose of the Extradition Act 1965. The Defendant entered a notice of cross-appeal, appealing against so much of the judgment of the learned President as held that the offences did not come within Section 3 of the No. 1 Act of 1987 but withdrew and did not proceed with that appeal.

23 It would appear from the judgment of the learned President that with regard to the precise question as to whether Section 3(a)(v) of the No. 1 Act of 1987 applied to an offence involving danger to the life of a single person, that Section 11 of the Interpretation Act 1937would fall to be considered.

24 The Appellant in this Court relied only on three grounds of appeal and they are:

25 (1) that the offences charged in the Warrants did not correspond to any offence in Irish law;

26 (2) that in the events which have happened the delay in the presentation of the warrants since the date on which the crime is alleged to have been committed gives rise to a situation in which it would be unjust, oppressive or invidious to deliver up theAppellant;

27 (3) that there are substantial risks that if the Appellant is delivered to the custody of the police to appear before theMagistrates" Court inEngland he will, in relation to the charges against him, both as to the nature and procedures of his trial and to proceedings by the prosecuting authorities and police authorities in England, be subjected to unjust and unconstitutional prejudice and disadvantage from which he is entitled to protection by order of this Court.

Correspondence of offences

28 The acts alleged to constitute an offence in the first warrant are in the following terms:

"Between the 1st day of January 1981 and the 27th day of October 1983, within the jurisdiction of the Central Criminal Court for England and Wales in the United Kingdom, unlawfully and maliciously conspired together with Thomas Alphonsus Quigley, Paul Kavanagh, Gilbert Thomas Patrick McNamee and other persons to cause by an explosive substance an explosion of a nature likely to endanger life or cause serious injury to property in the United Kingdom, contrary to Section 3(1)(a) of the Explosive Substances Act 1883 and Section 7 of the Criminal Jurisdiction Act 1975."

29 The offence charged in the second warrant is in the followingterms:

"Between the 1st day of January 1981 and the 27th day of October 1983 within the jurisdiction of the Central Criminal Court for England and Wales in the United Kingdom, unlawfully and maliciously had in his possession or under his control explosive substances with intent by means thereof to endanger life or cause serious injury to property in the United Kingdom or to enable any other person so to do. Contrary to Section 3(1)(b) of the Explosive Substances Act 1883 and Section 7 of the Criminal Jurisdiction Act 1975."

30 The corresponding Irish offences identified in the Orders for delivery, and relied upon by the Defendants before this Court, were offences contrary to Section 3 of the Explosive Substances Act 1883. The terms of Section 3 of the Explosive...