Hanlon v Fleming

• Jurisdiction: Ireland
• Judge: Henchy J.
• Judgment Date: 01 January 1982
• Neutral Citation: 1981 WJSC-SC 1698
• Court: Supreme Court
• Docket Number: [S.C. No. 258 of 1980]
• Date: 01 January 1982

HANLON v. FLEMING

MAURICE HANLON

v.

JOHN FLEMING

1981 WJSC-SC 1698

O'Higgins C.J.

Henchy J.

Griffin J.

No. 3495P/1974

No. 258/1980

THE SUPREME COURT

1 Henchy J. delivered the 5th October 1981 [nem.Diss]

2 The plaintiff in this case, Maurice Hanlon, is seeking to resist his extradition to the United Kingdom. To do so he has invoked the provisions of the Extradition Act, 1965. He issued a special summons in the High Court asking, in effect, for an order that a warrant issued against him in London be not executed here. In those proceedings he named Edward P. Garvey of the Garda Síochána, as defendant, but as Mr. Garvey is no longer a member of the Garda Siochana, John Fleming, who is an Assistant Commissioner, has been allowed by the Court to replace Mr. Garvey as defendant.

3 Although Maurice Hanlon was the plaintiff in the High Court proceedings, because the warrant in question was issued for his arrest to answer a criminal charge I shall for convenience refer to him as the accused.

4 The relevant facts may be briefly stated. In 1971 the police raided and searched the accused's flat in London. In the course of the search they found a quantity of electric detonators and plaster gelatine. As a result, the accused was arrested and charged at West London Magistrates' Court with handling stolen goods contrary to s. 22(1) of the Theft Act 1968. He was remanded in custody. He remained in custody in Brixton Prison from November 1971 until January 1972, when he was granted bail on condition that he would sign a police register twice a day while on bail and also conditional on the production of two independent sureties of £1,000 each.

5 He was duly released on bail on those conditions in January 1972. He remained at large on bail until March 1972, when he broke bail and decamped to Ireland. The London police traced him to an address in Dublin, whereupon they got a warrant for his arrest from a Metropolitan Stipendiary Magistrate sitting in the West London Magistrate's Court. The Warrant specified a charge against him for having

"on a day between the 1st day of January and the 8th day of November 1971 within the jurisdiction of the Central Criminal Court dishonestly received stolen goods, namely nine electric detonators and four ounces of Eversoft Plaster Galatine, knowing or believing the same to be stolen goods."

Contrary to Section 22(1) of the Theft Act 1968".

6 The procedures laid down by the Extradition Act, 1965were then put in train. On the 4 November 1974 a District Justice issued an order under s. 47 of the Act directing the Superintendent of the Garda Síochána at Rathfarnham to deliver the accused at Dublin Airport into the custody of a member of the Metropolitan Police Force Flying Squad stationed at New Scotland Yard, London. The accused then, having been released on his entering into a recognizance under s. 52(3) of the Extradition Act, 1965, issued the special summons, to which I have referred, on the 14 November 1974 The proceedings instigated by that summons, which were heard partly on an affidavit sworn by the accused and partly on oral evidence, came before a judge of the High Court on the 10 February 1975 and on the 7 April 1975, when judgment was reserved. The reserved judgment was not delivered until the 6 October 1980, that is five and a half years later. It was held in that judgment that the accused should be refused any of the relief he had claimed in the special summons. It is against that refusal that the present appeal has been taken by the accused to this Court.

7 Counsel for the accused has rested his case on three propositions: (1) that the right to extradite in this case has been lost by reason of the inordinate length of time that has passed since the specified offence is said to have been committed, and particularly since the High Court proceedings were heard; (2) that the judge was wrong in holding that the offence charged was not a political offence or an offence connected with a political offence; and (3) that the judge was wrong in holding that the offence specified in the warrant had the .required correspondence with an offence under the law of this State, as is specified by s. 47(2) of the Extradition Act, 1965

8 As to (1), that is delay, it has been inordinate and in part unexplained, but I do not think it is in itself a good ground for refusing extradition. The failure to have the charge against the accused tried in London in due time has been primarily the accused's own fault. Such evasion of a trial is usually the reason for extradition proceedings. If the accused had not broken bail and fled to Ireland, the charge against him would have long since been tried and disposed of. If the superimposed delay, due to the extraordinary lapse of time between the hearing in the High Court and the delivery of the reserved judgment, could be said to imperil or render impossible a fair trial, that would be a matter which would have to be raised in the first instance in an English court. But the scheme of reciprocal extradition between Ireland and the United Kingdom, represented on the Irish side .by the Extradition Act, 1965, does not recognise delay as a ground for refusing extradition. For the courts in this State to recognize it would be to read into the statute something that has been omitted, presumably on purpose. I would therefore reject this ground of appeal.

9 As to (2), that is the political aspect of the specified charge, I would hold against this ground for the simple reason that the judge in the High Court, having heard oral evidence, found as a fact that "there is no acceptable evidence to satisfy me that any of the proceeds of [the accused's] criminal activities was used for the purposes of the I.R.A. in such a way as to lend political colour to the offences". But even if the judge's finding were otherwise, even if it had been found as a fact that the explosive material referred to in the charge specified in the warrant had been intended for transmission to the I.R.A., it would not necessarily follow that the accused would be exempt from extradition on the ground that the charged offence .is a political offence or an offence connected with a political offence. There has been no decision of this Court on such a point. It must be left open for an appropriate case. For the present, it is sufficient to say that the judge's finding that the specified charge is not a political offence or an offence connected with a political offence, is supported by evidence and cannot be disturbed by this Court.

10 As to (3), that is that the specified offence has not the required correspondence with an offence under the law of this State, the relevant decisions of this Court (for example, The State (Furlong) v. Kelly 1971 I.R. 123, Wyatt v. McLoughlin 1974 I.R. 378 and Wilson v. Sheehan 1979 I.R. 423) show that it is a question of looking at the factual components of the offence specified in the warrant, regardless of the name given to it, and seeing if those factual components, in their entirety or in their near-entirety, would constitute an offence which, if committed in this State, could be said to be a corresponding offence of the .required gravity. The required gravity is not in issue here. What is in issue - and this is the nub of this appeal - is whether the factual elements of the specified offence, if laid in this State, either precisely or substantially as set out in the warrant, as the particulars of an indictment for an offence contrary to s. 33(1) of the Larceny Act, 1916, would be a correct basis for a finding of guilty by a correctly charged jury.

11 Counsel for the accused contends that they would not. He concedes that if the offence specified in the warrant had merely charged the accused with dishonestly receiving the articles in question "knowing the same to have been stolen," the offence thus specified would have the necessary correspondence with an offence contrary to s. 33(1) of the Larceny Act, 1916. But he submits that the formulation in the warrant of the mens rea as "knowing or believing the same to have been stolen" amounts to a lowered or less stringent degree of mens rea,. so that the offence charged, while resembling an offence contrary to .s. 33(1) of the Larceny Act, 1916, is amenable to proof on a more relaxed criterion of guilt, so that the required correspondence of offences is...