Heywood v Attorney General
| Jurisdiction | Ireland |
| Judge | Mr Justice Michael Peart |
| Judgment Date | 26 October 2006 |
| Neutral Citation | [2007] IEHC 85 |
| Court | High Court |
| Date | 26 October 2006 |
[2007] IEHC 85
THE HIGH COURT
Between:
And
EXTRADITION ACT 1965 S50(2)(bbb)
EXTRADITION ACT 1965 S47
CONSTITUTION ART 40.4.2
KWOK MING WAN v CONROY 1998 3 IR 527
MARTIN v CONROY 2002 1 ILRM 461
FUSCO v O'DEA 1998 3 IR 470 1995 8 2359
MIN FOR JUSTICE v STAPLETON UNREP HIGH COURT PEART 21.2.2006 2006 IEHC 43
EUROPEAN ARREST WARRANT ACT 2003
EUROPEAN CONVENTION HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6
BARRY v IRELAND 2005 ECHR 865
MAMATKULOV & ASKAROV v TURKEY ECHR CASES 46827/99 & 46951/99
Extradition - Delay - Section 50(2)(bbb) of the Extradition Act, 1965 - Whether having regard to all the circumstances in this case, including the lapse of time since the date of the commission of the alleged offences it would be unjust, oppressive or invidious to return the applicant to the United Kingdom to face a trial on these offences.
The applicant sought his release pursuant to s. 50(2)(bbb) of the 1965 Act, as amended, on the basis of the lapse of time since the date of the commission of the offences alleged against him (between March 1995 and August 1996) and on the basis of what are submitted to be other exceptional circumstances in the case, namely: the fact that he did not come to this jurisdiction for the purposes of avoiding arrest or in breach of any bail conditions as he had never been questioned by the U.K. authorities in relation to the alleged offences, the fact that he spent a period of time in custody as he was unable to take up his bail, and furthermore, it was submitted that the delay in this case compromised the applicant’s ability to properly and fully defend himself against the charges.
Held by Peart J. in refusing the application: That the lapse of time in this case amounted to a period of ten years and could not but be regarded as exceptional. However, there were no other exceptional circumstances in this case and consequently the court was not permitted to proceed to consider the question of whether in all the circumstances it would be unjust, oppressive or invidious to deliver up the applicant. The delay in this case could not be regarded as an exceptional circumstance as that would amount to double counting.
Reporter: L.O’S.
Mr Justice Michael Peartdelivered on the 26th day of October 2006:
This is an application brought by the applicant for his release pursuant to s. 50(2)(bbb) of the Extradition Act, 1965, as amended ("the Act"), on the basis of the lapse of time since the date of commission of the offences alleged against him, and on the basis of what are submitted to be other exceptional circumstances in the case. That section provides that:
"A direction under this section may be given by the High Court where the Court is of the opinion that û"
… (bbb) by reason of lapse of time since the commission of the offence specified in the Warrant…and other exceptional circumstances, it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under section 47…"
In this case an order has been made under section 47 of the Act for the surrender of the applicant to the authorities in the United Kingdom, so that he can face trial for three offences set forth in three warrants, namely possession of heroine for the purpose of supply, and twocharges of assault causing grievous bodily harm. Those offences are alleged to have been committed on dates between 1 st March 1995 and 7 th August 1996.
Before dealing with the present application for release. I will first set out a chronology of events since the alleged offences were committed.
As I have stated, the offences are alleged to have been committed by the applicant in 1995/1996. Before the applicant was even questioned in respect of these offences he came to this State in January 1987, and has remained here since that date. Since 2002 he has been in a relationship with his partner and they have a young daughter. It appears that in January 1998 the authorities in the United Kingdom learned that the applicant was residing here, but it was not until the 21 st October of that year that the three warrants in respect of the said offences issued for his arrest. These warrants were received here for backing, and the arrest of the applicant was ordered by the Assistant Garda Commissioner of An Garda Siochana on the 4 th January 1999. He was duly arrested shortly thereafter on the 19 th January 1999, taken into custody, and brought before the District Court, where eventually on the 5 th May 1999 an order for his extradition to the United Kingdom was made pursuant to an application under s. 47 of the Act. He was granted bail following his Appearance in the District Court but was unable to meet the terms of the bail fixed, and therefore remained in custody.
Following the making of that order under s. 47 of the act, the applicant appealed same, but on the 31 st May 2001, withdrew that appeal. He secured his release from custody on the 6 th July 2001 on foot of an order of Mr Justice O'Neill on that date, the learned judge having found that his continued detention was unlawful. By that time he had been in custody for some two years and five months.
He was re-arrested on the 9 th February 2002 but on foot of the same 1999 warrants as had been the basis of his first arrest in January 1999. He challenged the legality of his detention thereafter. That challenge was at first unsuccessful on the 12 th February 2002 in the High Court, but on appeal to the Supreme court on the 15 th February 2002 his release was ordered on the basis that the 1999 warrants were spent.
Fresh warrants duly issued in the United Kingdom, but not until the 28 th November 2002, some nine months later. These were not backed here by the Assistant Commissioner of An Garda Siochana for a further nine months on the 29 th August 2003, and the applicant was re-arrested on foot of same on the 1 st September 2003. He applied unsuccessfully to the High Court on the 23 rd September 2003 for his release pursuant to Article 40.4.2 of the Constitutionon the basis that the delays in seeking is extradition were such as to make his detention unlawful. His appeal from that refusal was also unsuccessful.
The application for his surrender under s. 47 of the Act came before me in February 2004, and I refused same. Thereafter, some two years later, on the 14 th March 2006 the Supreme Court allowed the appeal, set aside my said order dated the 24 th February 2004, and directed that this application under s. 50(2)(bbb) be remitted to me for decision. On that date it appears that no order was actually made by the Supreme Court under s. 47 and on the 22 nd March 2006, following the matter being mentioned again in the Supreme Court the matter was remitted to the High Court for such an order to be made. That happened eventually on the 11 th April 2006, when an order for his delivery to the United Kingdom was made, and he was taken into custody pending arrangements being put in place. Seventeen days later, on the 28 th April 2006, the applicant was released on bail, the terms of which on this occasion were capable of being met by him. This application for his release came before me on the 21 st July 2006 when I reserved my judgment.
It will be seen therefore that there is a period of ten years and eight months between the earliest date on which it is alleged that the applicant committed an offence, namely the 1 st August 1995, and the making of the order under s. 47 of the Act on the 11 th April 2006. The applicant was in custody, following his first arrest, from the 19 th January 1999 until the 6 th July 2001 when his release was ordered, this being a period of some two years, five and a half months. The last five days of that custody was found to have been unlawful custody. In February 2002 he spent another six days in unlawful custody. Following his arrest on foot of the new warrants on the 1 st September 2003, he spent another almost six months in custody awaiting the application under s. 47 made on the 24 th February 2004. During the period of ten years and eight months referred to, the applicant has spent almost three years in custody, some eleven days of which was found to have been unlawful custody.
That is a brief summary of what occurred during the years following the date of the alleged offences. When considering the present application I am of the view that it is appropriate to consider the period of time from 1 st August 1995 to the 11 th April 2006 as being the time to be reckoned when considering whether this represents, in the circumstances of how it arise, an exceptional lapse of time sufficient to 'trigger' a consideration of the second requirement of the section, namely whether there are other exceptional circumstances in the case, such that the third requirement can be considered, namely whether that lapse of time, and those circumstances would, having regard to all the circumstances, would render it 'unjust,oppressive or invidious to return the applicant to the United Kingdom to face a trial on these offences.
The first matter is easily decided in my view. A lapse of time of the order of ten years cannot but be regarded as an exceptional lapse of time, unless, which is not the case, a substantial part of that period was caused by the applicant himself. In the present case I would not regard that as being the case, even though there was a period of a couple of years from the 5 th May 1999 following the making of the first order under s. 47 in the District Court, and the withdrawal of the applicant's appeal therefrom on the 31 st May 2001, which clearly must be laid at the applicant's door. But while not in custody here there was never any...
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