Finucane v McMahon

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,WALSH J.,GRIFFIN J.,Hederman J.,McCarthy J.,
• Judgment Date: 13 March 1990
• Neutral Citation: 1990 WJSC-SC 634
• Court: Supreme Court
• Docket Number: [1987 No. 1266 Sp: 1988 No. 509 SS]
• Date: 13 March 1990

FINUCANE v. MCMAHON

IN THE MATTER OF THE EXTRADITION ACTS 1965– 1987

BETWEEN

DERMOT FINUCANE

Plaintiff/

Appellant

and

JOHN PAUL McMAHON

Defendant/

Respondent

AND IN THE MATTER OF THE CONSTITUTION AND ARTICLE 40 THEREOF

BETWEEN

DERMOT FINUCANE

Applicant/

Appellant

and

THE GOVERNOR OF PORTLAOISE PRISON

Respondent

1990 WJSC-SC 634

Finlay C.J.

Walsh J.

Griffin J.

Hederman J.

McCarthy J.

164/89

THE SUPREME COURT

Synopsis:

CRIMINAL LAW

Extradition

Exception - Political offence - Statutory exception - Relevance - Applicant convicted of offence in Northern Ireland - Escape from prison - Violence during escape - Arrest of applicant in the State - Risk of ill-treatment if extradited to Northern Ireland - Claim that offence described in warrant was a political offence - Whether applicant entitled to invoke exemption on basis of political offence - Circumstances of applicant's offence not inconsistent with provisions of Constitution - The risk of the applicant being subjected to ill-treatment if he were returned to northern Ireland was a valid ground for directing his release from custody pursuant to Article 40.4.2 of the Constitution - Section 50 of the Act of 1965 could not be construed so as to grant exemption from extradition to a person charged with an offence the purpose of which was to subvert the Constitution or usurp the functions of the organs of the State - Nevertheless, there was no impediment to the operation of the provisions of that section - The offence of which the applicant was convicted was a political offence, his escape from prison was a political offence, and the assaults committed by him during his escape were offences connected with a political offence - The applicant was also entitled to an order directing his release under s. 50 of the Act of 1965 - Extradition Act, 1965, s. 50 - Constitution of Ireland, 1937, Articles, 3, 6, 15, 40 (164/89 - Supreme Court - 13/3/90) - [1990] 1 I.R. 165

|Finucane v. McMahon|

STATUTE

Application

Restriciton - Constitution - Provisions - Inconsistency - Political offence - Exemption from extradition - Whether applicant entitled to invoke exemption - (164/89 - Supreme Court - 13/3/90) - [1990] 1 I.R. 165 - [1990] ILRM 505

|Finucane v. McMahon|

HIGH COURT

Jurisdiction

Extradition - Constitution - Personal rights - Protection - Foreign court - Conviction - No power of review but power to protect personal rights - (304/89 & 164/89 - Supreme Court - 13/3/90) - [1990] 1 I.R. 165 - [1990] ILRM 505

|Finucane 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 - (164/89 - Supreme Court - 13/3/90) - [1990] 1 I.R. 165 - [1990] ILRM 505

|Finucane v. McMahon|

Citations:

EXTRADITION ACT 1965 S50

CONSTITUTION ART 40

RUSSELL V FANNING 1988 IR 505

PETTIGREW V NORTHERN IRELAND OFFICE 1989 BNIL 3/83

CONSTITUTION ART 40.3

QUINN V WREN 1985 IR 322

FIREARMS (NI) ORDER 1981 ART 17

CONSTITUTION ART 40.4.2

OFFENCES AGAINST THE STATE REG 1939 SI 162/1939

OFFENCES AGAINST THE STATE ACT 1939 S18

CONSTITUTION ART 6.1

CONSTITUTION ART 6.2

CONSTITUTION ART 15.6

EXTRADITION (AMDT) ACT 1987

EXTRADITION (CONVENTION & SUPRESSION OF TERRORISM) ACT 1987

CONSTITUTION ART 2

CONSTITUTION ART 3

MCELHONE CASE 1977 AC 105, 1976 NI 169

CONSTITUTION ART 28.3.3

EXTRADITION TO NORTHERN IRELAND: PROSPECTS & PROBLEMS MLR V52 P585

CRIMINAL LAW (JURISDICTION) ACT 1976

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

BOURKE V AG 1972 IR 36

EUROPEAN CONVENTION ON EXTRADITION ART 3

EUROPEAN CONVENTION ON EXTRADITION ART 26

SUPPRESSING TERRORISM UNDER THE EUROPEAN CONVENTION, A BRITISH PERSPECTIVE LOWE & YOUNG 1978 NETH ILR V XXV P305

MCGLINCHEY V WREN 1982 IR 154

BRITISH PREVENTION OF TERRORISM ACT 1989

OFFENCES AGAINST THE STATE (AMDT) ACT 1940 PART II

CONSTITUTION ART 29

R V BURNS 1988 BNIL 9/71

MAGEE, STATE V O'ROURKE 1971 IR 205

SHANNON V IRELAND 1984 IR 548

MCMAHON V LEAHY 1984 IR 525

MAGUIRE V KEANE 1986 ILRM 235

BURNS V AG UNREP HIGH 04.02.74

MCLOUGHLIN V AG UNREP HIGH 5.12.74

MCGARRY & CLARKE V AG UNREP 15.01.76 IRISH TIMES

GILHOOLEY V AG 04.06.76 IRISH TIMES

MANUS & DOHERTY V AG 23.03.77 IRISH TIMES

SWORDS V AG 22.12.77 IRISH TIMES

O'HAGAN & HERRON V AG UNREP 18.07.78 IRISH TIMES

QUIGLEY & ORS V FANNING 22.07.80 IRISH TIMES

AG V RYANS CAR HIRE LTD 1965 IR 642

MOGUL (IRL) LTD V TIPPERARY (NR) CO COUNCIL 1976 IR 260

ROAD TRAFFIC ACT (NI) 1955 S41

LARCENY ACT 1916 S S27(2)

MALICIOUS DAMAGE ACT 1861 S51

OFFENCES AGAINST THE PERSON ACT 1861 S38

QUINN, STATE V RYAN 1965 IR 70

EXTRADITION ACT 1965 PART 3

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

2 This is an appeal brought by the Plaintiff/Applicant against the Order of the High Court dated the 7th April 1989, made by a Divisional Court, dismissing both his claim for release pursuant to Section 50 of the Extradition Act 1965and his claim for release pursuant to Article 40 of theConstitution.

3 The Applicant was convicted at the Crown Court in Belfast of having had in his possession on the 20th August 1981 two rifles and a quantity of ammunition with intent by means thereof to endanger life or cause serious injury or to enable any other person by means thereof to endanger life or cause serious injury to property, and was, on the 14th June 1982 sentenced to eighteen years" imprisonment.

4 On the 25th September 1983 the Applicant escaped with others from the Maze Prison in Northern Ireland. His delivery to Northern Ireland is now sought on a number of warrants relating to offences alleged to have been committed in the course of that escape, and on a warrant requiring him to serve the unexpired balance of the sentence already imposed uponhim.

5 I will first deal with the application pursuant to Article 40 of theConstitution.

6 This was submitted both in the High Court and on this appeal upon the following grounds, that is to say:

"The Court would be failing in its duty to protect his fundamental constitutional rights if it permitted his return to Northern Ireland to serve the balance of his sentence in the Maze Prison where, it is alleged, that there is a probability that he would be subjected to assaults and inhuman treatment by prison officers and would be subject to a prison regime which permits its staff, either personally or with dogs to assault prisoners, to deprive them of or delay access to doctors or solicitors, to commit perjury, to be uncooperative with enquiries or with investigations conducted by the Northern Ireland Office, the Governor of the Prison or the Royal Ulster Constabulary, without beingdisciplined."

7 This submission is largely based on the judgment of this Court in Russell v. Fanning 1988 I.R., where, at p.531 in the course of my judgment I stated:

"I would accept that if a court upon the hearing of an application to set aside an Order forDelivery under the Extradition Act 1965were satisfied as a matter of probability that the plaintiff would, if delivered into another jurisdiction, be subjected to assault, torture or inhuman treatment, that it would, in order to protect the fundamental constitutional rights of the plaintiff be obliged to release him from detention and to refuse to deliver him out of the jurisdiction of thesecourts."

8 Counsel for the Applicant in part relied upon this principle, but submitted that some less standard of proof than probability was appropriate in the application of the principle and suggested that it would be more correctly stated as being only necessary for an applicant in order to obtain the protection of this rule to establish a "real danger" of such events occurring.

9 This particular submission was based upon the fundamental nature of the constitutional rights involved and upon the finality of permitting delivery out of the jurisdiction which of necessity prevented further protection of constitutional rights by the Court.

10 The duty of the Court "as far as practicable to defend" the constitutional rights of the applicant may not necessarily be best served by any rigid formula ofstandard of proof.

11 I am satisfied that what is necessary is to balance a number of factors, including the nature of the constitutional right involved; the consequence of an invasion of it; the capacity of the Court to afford further protection of the right and the extent of the risk of invasion. Upon the balancing of these and other factors in each case, the Court must conclude whether its intervention to protect a constitutional right is required and, if so, in what form.

12 The primary facts concerning this issue were proved by affidavit and by oral evidence in the High Court. In the course of their judgments with each of which Costello J. agreed, Hamilton P. and Gannon J. set out in convenient form the facts which they found arising from this evidence. In addition, certain other facts of somewhat less importance for the issue here arising were established in uncontested evidence. The learned trial Judges then proceeded to raise inference from the facts as found by them.

13 I am, it seems to me, on this appeal obliged to consider and, if appropriate, to review those inferences.

14 The facts so found or established can thus be summarised.

15 1. Thirty-eight prisoners escaped from H-Block in the Maze Prison into the grounds of the prison, and most of their number escaped from the prison itself, imprisoned a number of prison officers and, in effect, fought their way out of the prison.

16 2. In the course of the escape Prison Officer Ferris was stabbed and died from a heart attack. Lord Chief Justice Lowry, as he then was, in the trial of a number of accused in respect of charges arising out of the escape, held that he could not be satisfied beyond a reasonable doubt, that the stabbing was the cause of the heart...