Kane v McMahon

JurisdictionIreland
JudgeGRIFFIN J.,[Hederman J. concurring, Blayney J. agreeing],FINLAY C.J.
Judgment Date06 April 1990
Neutral Citation1990 WJSC-SC 212
Date06 April 1990
CourtSupreme Court
Docket Number[1988 No. 194 Sp.; 1988 No. 838 SS.; 1988 No. 323 J.R.]

1990 WJSC-SC 212

THE SUPREME COURT

Finlay C.J.

Griffin J.

Hederman J.

McCarthy J.

Blayney J.

139/89
146/89
CARRON v. MCMAHON
OWEN GERARD CARRON
Plaintiff

and

JOHN PAUL McMAHON
Defendant

AND

OWEN GERARD CARRON
Applicant

and

THE GOVERNOR OF PORTLAOISE PRISON
Respondent

AND

OWEN GERARD CARRON
Applicant

and

DISTRICT JUSTICE JAMES P. GILVARRY
Respondent

Citations:

EXTRADITION ACT 1965 S50

FIREARMS (NI) ORDER 1981 ART 25

FIREARMS ACT 1925

CRIMINAL LAW (JURISDICTION) ACT 1976

BOURKE V AG 1972 IR 36

RUSSELL V FANNING 1988 IR 505

FINUCANE V MCMAHON 1990 ILRM 505

QUINN V WREN 1985 IR 322

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

MCGLINCHEY V WREN 1982 IR 154

CONSTITUTION ART 40

EXTRADITION ACT 1965 S44

HOLMES, STATE V FURLONG 1967 IR 210

EXTRADITION ACT 1965 PART III

CONSTITUTION ART 6

CONSTITUTION ART 6.1

CONSTITUTION ART 6.2

Synopsis:

CRIMINAL LAW

Extradition

Exception - Political offence - Connection with such offence - Connected offence - Possession of firearms with intent to endanger life - Connected offence committed in Northern Ireland - Connected offence political - Applicant released from custody - Habeas corpus - District Court - Order - Validity - Extradition Act, 1965, ss. 44, 47, 50 - Constitution of Ireland, 1937, s. 40 - (139 & 146/89 - Supreme Court - 6/4/90) - [1990] 1 I.R. 239

|Carron v. McMahon|

EVIDENCE

Extradition

District Court - Jurisdiction - Delivery order - Prerequisites - Statutory proofs - Power of Minister to direct that warant be not endorsed for execution - Absence of evidence that Minister considered exercising his power - Delivery order valid - (139 & 146/89 - Supreme Court - 6/4/90) - [1990] 1 IR 239 - [1990] ILRM 802

|Carron v. McMahon|

MINISTER OF STATE

Powers

Exercise - Foreign warrant - Endorsement - Prohibition - District Court - Jurisdiction - Delivery order - Prerequisites - Statutory proofs - Evidence that Minister considered the exercise of his power - Proof not required - (139 & 146/89 - Supreme Court - 6/4/90) - [1990] 1 I.R. 239 - [1990] ILRM 802

|Carron v. McMahon|

CONSTITUTION

Personal rights

Liberty - Protection - Fugitive - Ill-treatment - Danger - Complaint of unlawful detention - Opposition to extradition proceedings - Enquiry into complaint - Applicant not released under Article 40 - (139 & 146/89 - Supreme Court - 6/4/90)

|Carron v. McMahon|

1

JUDGMENT delivered on the 6th day of April 1990by FINLAY C.J. [Hederman J. concurring, Blayney J. agreeing]

2

The Plaintiff has appealed to this Court against the High Court Order of the 16th March 1989, made by a Divisional Court dismissing his claim brought pursuant to Section 50 of the Extradition Act 1965for an Order releasing him from custody on foot of certain Orders for his delivery to Northern Ireland.

3

On the 17th November 1987 two Warrants were issued by an appropriate judicial authority in Northern Ireland for the arrest of the Plaintiff on two charges of the possession of a firearm and ammunition contrary to Article 25 of the Firearms (Northern Ireland) Order 1981. The offences charged are offences corresponding with offences against the Firearms Act 1925as inserted by the Criminal Law (Jurisdiction) Act 1976.

4

These Warrants were duly endorsed by Deputy Commissioner John Paul McMahon and the Plaintiff having been arrested on foot of them District Justice James P. Gilvarry on the 20th February 1988 made Orders for his delivery to Northern Ireland pursuant to the provisions of the 1965Act.

5

The incident out of which these charges arose occurred when the Plaintiff was on the 19th December 1985 driving his car in County Fermanagh and had as a passenger one James Maguire. James Maguire apparently had in his possession an AKM assault rifle and fifty-eight rounds of ammunition. The Plaintiff denies that he was aware of this fact. Both the Plaintiff and James Maguire were arrested by the RUC on this occasion and each of them was charged with similar firearmoffences.

6

James Maguire was tried and convicted on these offences but the Plaintiff who was granted bail absconded from Northern Ireland and has not yet been tried on these charges.

7

The Plaintiff has claimed an Order for release pursuant to Section 50 of the Act on the grounds that the offences with which he is charged are political offences or, in the alternative, on the grounds that they are offences connected with the offences committed by James Maguire on the same occasion, which latter offences are political offences.

8

The Plaintiff in addition to swearing a number of affidavits concerning this issue was cross-examined before the Divisional Court, as were a number of deponents who had made sworn affidavits on behalf of theDefendant.

9

James Maguire deposed on affidavit that the firearms offences in respect of which he was convicted were "offences committed by me in furtherance of my political aim of forcing British forces to leave Northern Ireland so that the country of Ireland may bereintegrated."

10

The Plaintiff in addition to denying that he was aware that James Maguire was carrying the rifle and ammunition stated that he did not approve of violence and did not support the use of violent means to achieve political change in Northern Ireland. This latter assertion was contested on behalf of the Defendant.

11

The High Court held that having regard to the Plaintiff's denial of knowledge of the existence of the firearm and ammunition in his car and to his disavowal of any aim to achieve political objectives by the use of firearms he could not be heard to assert that the actual offences with which he is charged are political offences.

12

I would agree with that conclusion.

13

It is not necessary in order to claim and establish under Section 50 of the Act that an offence charged is a political offence for the Plaintiff to admit guilt. He can, in an appropriate case, establish that factwhileasserting his innocence by reference to the nature and character of the crime, irrespective of by whom it was committed. This is clearly, however, not such a case.

14

The Divisional Court has also found that the offences charged against the Plaintiff are "connected" with the offences of which James Maguire was convicted. This conclusion was not challenged by the Defendant on this appeal. Quite apart from that fact, I am satisfied that it is a correct conclusion.

15

It is not necessary for an offence to be of a political nature in order to be capable of being "connected with a political offence" within the meaning of Section 50 of the Act (cf. Bourke v. The Attorney General 1972 IR. What in my view is the correct test is whether there is a causal or factual relationship of sufficient strength to be properly described as a connection between the two offencesconcerned.

16

In the instant case, two persons were charged with apparently identical offences in respect of the same rifle and the same quantity ofammunition.

17

Even if as some of the evidence suggests the prosecution case would be that James Maguire had actual physical possession of both the rifle and the ammunition and that the Plaintiff had legal possession of each ofthem by knowingly transporting them in his car, I have no doubt that there must be the closest possible connection between the offences of which James Maguire was convicted and the offences with which the Plaintiff is charged. On an interpretation of Section 50 of the Act, they must, it seems to me, be deemed connected offences.

18

The issue as to whether the Plaintiff is entitled to an Order of Release pursuant to Section 50 must, therefore, ultimately depend on the question as to whether the offences of which James Maguire was convicted in respect of the events of the 19th December 1985 were "political offences" within the meaning of the Section.

19

The Divisional Court applied to this issue, as it was then bound to do, the decision of this Court in Russell v. Fanning, and decided that having regard to the principles laid down in that case James Maguire's stated aim of reintegrating the country by force of arms constituted a subversion of the Constitution and a usurpation of the function of Government which prevented his offences from being deemed to be political offences within the meaning of Section 50. In the case of Finucane v. McMahon, unreported but decided on the 13th day of March 1990 this Courtaffirmed its decision in Quinn v. Wren, that an offence committed for the purpose of subverting the Constitution or usurping the functions of the Government could not on a constitutionally acceptable construction of Section 50 be a political offence within that Section. It also held, however, that the decision in Russell v. Fanningin so far as it concluded that evidence of an objective to expel the British forces out of Northern Ireland by force of arms constituted in itself such a subversion or usurpation should not be followed.

20

The Affidavit sworn by James Maguire in this case has not been contradicted. Evidence with regard to the type of military rifle which he was carrying is entirely consistent with an intention to engage in a paramilitary activity or to assist others so to do.

21

The provisions of the Extradition (European Convention on the Suppression of Terrorism) Act 1987which came into operation on the 1st day of December 1987 and which provide inter alia for the exemption of certain types of offences from the scope of political offences does not apply to this case in which the Warrant was issued prior to the commencement of theAct.

22

There is no evidence that the purpose of carrying this rifle and ammunition was to participate in or assist the commission of the type of atrocity which in the decisions of this Court in the case of McGlinchey v. Wren and again in the case of Finucane v.McMahon was held to be outside any concept of a politicaloffence.

23

In those circumstances, applying the principles laid...

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