Heywood v Attorney General

JurisdictionIreland
JudgeMr. Justice Fennelly
Judgment Date29 October 2008
Neutral Citation[2008] IESC 60
Date29 October 2008
CourtSupreme Court
Docket NumberRecord No. 415/06

THE SUPREME COURT

Geoghegan J.

Fennelly J.

Macken J.

Record No. 415/06

IN THE MATTER OF SECTION 50 OF THE EXTRADITION ACT 1965 (AS AMENDED)
BETWEEN/
ROBERT LLOYD HEYWOOD
Applicant/Appellant
and
THE ATTORNEY GENERAL
Respondent/Respondent
Abstract:

Criminal law - Extradition - Fair procedures - New warrant - Offences from 1997 - delay - Exceptional circumstances - Exceptional lapse of time - Unjust, oppressive or invidious - Extradition Act 1965

Facts: For ten years the United Kingdom had been attempting to extradite the appellant to face trial on charges of conspiracy to supply drugs. The original offences dated to a period over ten years previously. The new English warrants were issued in 2002. The most recent decision of the Irish High Court had refused the application for release on grounds of delay despite the exceptional lapse of ten years from the date of the alleged offences. The Court had to consider whether there had been an undue passage of time and other exceptional circumstances such that in all of the circumstances it would be unjust, oppressive or invidious to deliver up the plaintiff.

Held by the Supreme Court per Fennelly J (Geoghegan & Macken JJ. concurring) that a balancing exercise had to be conducted. There were periods of delay that qualified as exceptional circumstances. The totality of the circumstances did not persuade the court that the appellant would be unjustly treated or oppressed if he was delivered. The appeal would be dismissed and the order of the High Court would be affirmed rejecting the application for release. The orders made were enforceable and effective.

Reporter: E.F.

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JUDGMENT of Mr. Justice Fennelly delivered the 29th day of October 2008

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1. For more than ten years the United Kingdom has been attempting to extradite the Appellant to face trial in England on serious charges of conspiracy to supply drugs and assault. There have been two sets of warrants and several earlier appeals to this Court. By the most recent judgment on 26th October 2006 in the High Court, Peart J refused the Appellant’s application for release on the ground of delay pursuant to section 50(2)(bbb) of the Act of 1965, inserted by section 2(1)(b) of the Extradition (Amendment) Act, 1987 (hereinafter “paragraph (bbb)”). This is the appeal from that judgment.

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2. The most recent judgment of this Court relating to paragraph (bbb) was that in Bolger v O’Toole [2008] IESC 38 (17th June 2008). As I explained in my judgment in that case, it is necessary on an application of this kind to consider all the circumstances of the case. Furthermore, this Court must consider that matter independently of the view formed by the High Court judge. It must form its own view as to whether the facts justify a conclusion that it would be unjust, oppressive or invidious to deliver the Appellant.

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3. Accordingly, I must recount the history of the attempts of the West Mercia Constabulary to have the Appellant delivered for trial to the jurisdiction of England and Wales pursuant to the Extradition Act, 1965 (the “Act of 1965”). That history must include the first set of warrants and the various legal proceedings concerning them.

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Chronology

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4. Three warrants for the arrest of the Appellant were issued on 21st October 1998 by Telford Magistrates’ Court in the West Mercia Commission area in England. Warrant “A” alleges that between 1st August 1995 and 7th August 1996 the Appellant conspired together with four named persons to supply a controlled class A drug diamorphine (heroin). Warrant B alleges that between January 1996 and the 1st May 1996 he unlawfully caused grievous bodily harm to one Lee Price with intent to do him grievous bodily harm.

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Warrant “C” alleges that between the 1st day of March 1996 and the 31st day of March 1996 he committed a similar offence against one Andre Clee. The last two offences are laid as being contrary to Section 18 of the Offences against the Person Act 1861 and are alleged to have been committed at Telford, Shropshire, England.

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5. Detective Sergeant Jane Williamson of the West Mercia Constabulary, in her information on oath provided for the original District Court hearing, described the underlying facts alleged against the Appellant as follows. The conspirators targeted vulnerable heroin addicts to sell drugs for them. They used threats and other forms of intimidation and violence to achieve their goals. One of their dealers was Lee Price who ran up large debts as a result of his addiction. He said that he had lost 25 bags of heroin; they were flushed down the toilet. He and Andre Clee were taken to a flat in Telford. Lee Price was viciously assaulted by the Appellant and another conspirator. They twisted his ear and finger with pliers, attempted to drill into his head with a cordless power drill and punched him.

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6. Clee was allegedly assaulted on a later occasion: he was tied up by the Appellant and another. They viciously assaulted him with a baseball bat. Other particularly cruel acts are alleged to have been committed upon him.

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7. The Appellant says that he has never been questioned about or charged with any of these offences and that he moved to Ireland in 1997. In January 1998, the West Mercia Police learned that the Appellant was living in Ireland. These circumstances were investigated at the time of the Appellant’s first High Court proceeding in 1999 and 2000.

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8. As already stated, the first set of warrants was issued by a judicial authority in England and Wales on 21st October 1998. They were duly endorsed for execution in the State. The applicant was arrested at his then place of residence in Dundalk in Co. Louth on 19th January 1999 and taken into custody.

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9. The application for his delivery came before the District Court. On 5th May 1999, the necessary orders were made pursuant to section 47(1) of the Act of 1965 by District Judge Mary Devins in the Dublin Metropolitan District Court for the delivery of the Appellant into the custody of a member of the West Mercia Constabulary.

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10. The Appellant remained in custody with consent to bail

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from the date of his arrest and so continued following the making of the District Court order. He was unable to provide an independent surety to satisfy the terms of bail. He spent a period of two years and four and a half months in custody after his arrest in January 1999.

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11. On 11th May 1999 the Appellant issued a Special Summons in the High Court seeking his release pursuant to section 50(2)(bb) or (bbb) of the Act of 1965. He has placed before this Court all the pleadings and affidavits from those proceedings, culminating in their dismissal by Finnegan J on 14th November 2000.

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12. He said that he was a British citizen of Jamaican descent and of Afro-Caribbean ethnicity. In his grounding affidavit, he alleged multiple acts of assault and harassment upon him by members of the West Mercia Constabulary. He claimed to have been the victim of racial prejudice at their hands, and relied on paragraph (bb). Some of these events were linked to his failure to observe a barring order which had been obtained against his wife (an Englishwoman to whom he was married in 1990). He claimed that he would not get a fair trial if returned to the jurisdiction of England and Wales.

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13. Upon his arrest in Dundalk in January 1999, he said that he had not been arrested or charged in England. He said that in January 1997 he had enough money to go to Ireland to “my girlfriend and my two children.”

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14. In an affidavit in reply, Detective Sergeant Jane Williamson said that “on 8th September 1996, [the Appellant] was circulated in the United Kingdom as being wanted in accordance with normal police procedures.” He was arrested in the London Metropolitan Area in that month, but was released before his true identity was established. He was released on bail.

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15. The Appellant was cross-examined at the hearing before Finnegan J, who rejected his complaint of prejudice by reason of race pursuant to paragraph (bb). He made the following findings of fact:

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“In breach of bail conditions the Plaintiff left Telford in late June or early July 1996 and went to London. In January 1997 he came to Ireland where his girlfriend and two children were then living. While his girlfriend lived in County Antrim the Plaintiff lived first in Wexford for some 15 months and thereafter in Dundalk. He

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regularly visited his girlfriend in County Antrim.”

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“With regard to the first mentioned offence the Plaintiff claims that he was unaware of any police activity in relation to the alleged co-conspirators Messrs Thomas, Flanagan and Thomas until he read of their trial in May 1997 and that in January 1997 he was not aware that the trial was pending. On the balance of the probability I do not accept this. The Plaintiff's girlfriend is a sister of Flanagan and she was in contact with the Plaintiff between January and May 1997 and as a matter of probability brought it to his attention. Again as a matter of probability I find that the accused was aware that the police were anxious to make contact with him in relation to the offences with which he is charged. The most likely reason for his deciding to live first in Wexford and then in Dundalk and to make visits to his girlfriend in Co. Antrim rather than to live in County Antrim was to reduce the possibility of him being arrested in Northern Ireland and being brought to trial. In any event while on a visit to his girlfriend in County Antrim in February 1998 an occasion arose when he had to give his name and address to the Police and he was informed by his girlfriend that the day following the police were looking for him. Thereafter he remained in this jurisdiction as he told me in evidence he thought he could not be arrested in this jurisdiction.”...

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