Fusco v O'Dea

JurisdictionIreland
JudgeMr. Justice Geoghegan
Judgment Date28 June 1995
Neutral Citation1995 WJSC-HC 2359
Docket NumberNo. 14 Sp./1992
CourtHigh Court
Date28 June 1995

1995 WJSC-HC 2359

THE HIGH COURT

No. 14 Sp./1992
FUSCO v. O'DEA

BETWEEN

ANGELO FUSCO
PLAINTIFF

AND

EDWARD O'DEA
DEFENDANT

Citations:

EXTRADITION ACT 1965 S43

CRIMINAL LAW (JURISDICTION) ACT 1976 S14(1)

EXTRADITION ACT 1965 S45

EXTRADITION ACT 1965 S50

EXTRADITION ACT 1965 S50(2)(bbb)

EXTRADITION ACT 1965 S45(2)

PRISONS ACT 1898 S11

TRIMBOLE, STATE V GOV OF MOUNTJOY PRISON 1985 IR 550

CRIMINAL LAW (JURISDICTION) ACT 1976 S3

EXTRADITION ACT 1965 S47

EXTRADITION ACT 1965 S50(2)

Synopsis:

CRIMINAL LAW

Extradition

Refusal - Grounds - Time - Lapse - Exceptional circumstances - Family circumstances - Applicant served prison sentence in the State in respect of escape from Northern Ireland prison - Lapse of 15 years since commission of alleged offences in Northern Ireland prior to escape - Prior acquiescence of party seeking extradition - Prison Act, 1898, s. 11 - Extradition Act, 1965, ss. 43, 45, 47, 50 - (1992/14 Sp - Geoghegan J. - 28/6/95) - [1998] 3 IR 470

|Fusco v. O'Dea|

1

Judgment of Mr. Justice Geoghegandelivered the 28th day of June, 1995.

2

The Plaintiff's claim is for his release pursuant to the provisions of Section 50 of the Extradition Act, 1965as amended. The proposed extradition relates to offences contained in Warrants marked "Warrant A", "Warrant B", "Warrant C", "Warrant D" and "Warrant E". The Plaintiff had originally been tried for these offences by the Crown Court in Northern Ireland sitting without a jury. While judgment was being reserved and the Plaintiff remanded in custody in Belfast, the Plaintiff escaped from prison in Northern Ireland. This escape occurred on the 10th June, 1981. A few days after the escape the Crown Court gave judgment and imposed terms of imprisonment for these offences. On the 18th January, 1982 the Plaintiff was arrested by the Garda Siochana in County Kerry and brought before the Special Criminal Court where he was charged with the offence of escape and kindred offences arising out of the escape from Crumlin Road Jail in Belfast. These charges were preferredunder the Criminal Law (Jurisdiction) Act, 1976. The Plaintiff was informed of his rights under Section 14(1) of the said Act of 1976 and he did not elect for trial within Northern Ireland. The Plaintiff was duly tried and convicted of the escape offences by the Special Criminal Court and sentenced to prison terms which he served in Portlaoise Prison. The Plaintiff was subsequently convicted for an offence involving an attempted escape from Portlaoise Prison and was given a term of imprisonment to run consecutively following the expiration of the other terms. In respect of all the combined terms of imprisonment imposed in this jurisdiction, the Plaintiff was due to be released on the 16th December, 1991. If he had not been given the additional consecutive term of imprisonment for the attempted escape from Portlaoise Prison he would have been due for release on the 25th August, 1989.

3

On the 11th December, 1991 i.e., five days before his release date, the Plaintiff was taken up to Dublin from Portlaoise Prison by prison officers and brought to Green Street where he was then arrested by an officer of the Garda Siochana close to the Courthouse on that street. The arrest was effected pursuant to a Warrant issued under Section 43 of the Extradition Act, 1965and the arrest was then purported to be made under Section 45 of the same Act. Immediately upon arrest the Plaintiff was brought before the President of the District Court sitting as the District Court in the Green Street Courthouse. The normal procedures under the Extradition Act, 1965then followed and the Plaintiff was remanded in custody. He was subsequently released on bail pending the outcome of theseproceedings.

4

It is conceded by the Defendant that the "political offence" exemption would apply to the offences contained in Warrants C and E. Accordingly, in relation to those offences, the Plaintiff would be entitled to his release pursuant to Section 50 of the Extradition Act, 1965as amended. In relation to the offences contained in the remaining Warrants, that is to say, Warrants A, B and D, it is accepted by the Plaintiff that the "political offence" exemption would not apply but the Plaintiff, nevertheless, seeks his release under Section 50 in respect of these offences also on three grounds. These are:-

5

1. That the provisions of Section 45 of the Extradition Act, 1965were not properly complied with and that accordingly everything that followed is a nullity.

6

2. That the Court should hold after drawing proper inferences from the evidence that a decision was made by the Northern Ireland authorities following on the Plaintiff's arrest in Kerry in January 1982, or possibly even before that, not to seek his extradition having regard to an alleged assumption that extradition would not have been possible in the light of the statute law and established case law in this jurisdiction at that time. It is then argued that this decision, having been by implication communicated to the Plaintiff, gave rise to an estoppel which prevented a future application for extradition.

7

3. That in all the circumstances and in particular, but not exclusively, the circumstances relied on for the purposes of the second argument, the Court should, byvirtue of Section 50(2)(bbb) of the Extradition Act, 1965as amended, direct the release of the Plaintiff.

8

I will deal with each of these arguments but the second and third arguments can be more or less taken together. The first argument, that is to say, the argument relating to Section 45 of the 1965 Act, is grounded on several quite different points. In the first place Counsel for the Plaintiff, Dr. Forde, argues that the purported execution of the Warrant endorsed under Section 43 took place in Portlaoise Prison and he says that cannot be done and furthermore he says that even if it can be done, the Plaintiff should then have been brought to the nearest District Court under subsection (2) of Section 45 which in this case would have been Portlaoise and not to Dublin as in fact happened. I would reject both of these points. There is no legal principle of which I am aware which would prevent the execution of the Warrant taking place within a prison where the person to be arrested was serving a sentence but I am quite satisfied that the point does not arise at any rate because the Warrant was not in fact executed in Portlaoise Prison. For the same reason, the argument that the Plaintiff should have been brought to Portlaoise District Court also fails. The prison officers who removed the Plaintiff from Portlaoise Prison were not members of the Garda Siochana and a Warrant endorsed under Section 43 may be executed under Section 45 only by a member of the Garda Siochana. Insofar as there was a purported execution of the Warrant therefore, it quite clearly took place in Green Street in Dublin when the member of the Garda Siochana effected the arrest. Dr.Forde, however, submits that even if he is wrong in arguing that the purported execution of the Warrant took place in Portlaoise and not in Dublin, the execution of the Warrant in Dublin and the subsequent District Court hearing were nullities because there was no power in the prison authorities in Portlaoise to have the Plaintiff transferred to Dublin for the purposes of the intended arrest. I do not accept this argument either. The Plaintiff was taken up to Dublin by the prison officers under orders from the Governor of the prison, the Governor having received a direction from the Minister for Justice in the following terms:-

"The Minister for Justice hereby orders and directs that Angelo Fusco, a prisoner at present confined in Portlaoise Prison, be produced at the Dublin Metropolitan District Court on the 11th December, 1991 and from day to day as may be necessary, the Minister for Justice being satisfied that the presence of the said person at such place is required in the interest of justice."

9

According to Counsel for the Defendant, Mr. Comyn, the authority to issue that direction derives from Section 11 of the Prisons Act, 1898. Under that section...

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