O'Keeffe v O'Toole

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 29 March 2007
• Neutral Citation: [2007] IESC 13
• Date: 29 March 2007
• Court: Supreme Court
• Docket Number: [S.C. No. 307 of 2005]

[2007] IESC 13

THE SUPREME COURT

Murray C.J.

Geoghegan J.

Kearns J.

307/05

O'Keeffe v O'Toole

IN THE MATTER OF SECTION 50 OF THE EXTRADITION ACT, 1965 (AS AMENDED)

BETWEEN

WILLIAM O'KEEFFE

APPLICANT/RESPONDENT

-v-

PATRICK O'TOOLE

RESPONDENT/APPELLANT

EXTRADITION ACT 1965 S50

EXTRADITION ACT 1965 S47

EXTRADITION ACT 1965 S47(1)

EXTRADITION ACT 1965 S50(2)(bbb)

EXTRADITION (AMDT) ACT 1987

THEFT ACT 1968 S9(1)(b) (UK)

KELLY v MIN JUSTICE UNREP KEARNS 23.7.2004 EXTEMPORE

FUSCO v O'DEA 1998 3 IR 470

SLOAN v CULLIGAN 1992 1 IR 223 1992 ILRM 194

EUROPEAN ARREST WARRANT ACT 2003

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 26

THEFT ACT 1968 S9

KWOK MING WAN v ASSISTANT COMMISSIONER CONROY 1998 3 IR 527

B (M) v ASSISTANT COMMISSIONER CONROY 2001 2 ILRM 311

COLEMAN v O'TOOLE 2003 4 IR 222 2004 1 ILRM 389

MCNALLY v O'TOOLE UNREP SUPREME 9.5.2002 2002/20/5181

CRIMINAL LAW (JURISDICTION) ACT 1976

EXTRADITION ACT 1965 S47(2)

CRIMINAL JUSTICE ACT 1967 S67 (UK)

EXTRADITION ACT 1965 S30

THEFT ACT 1968 S9(1)(b)

CRIMINAL LAW (JURISDICTION) ACT 1976 S3

CRIMINAL LAW

Extradition

Delay - Lapse of time - Exceptional circumstances - Whether lapse of time exceptional - Whether other exceptional circumstances - Period of incarceration - Whether period of incarceration discounted from lapse of time - Whether period of incarceration reason for delay - Whether unjust, oppressive or invidious to deliver up - No delay on part of requesting authorities - Whether relevant factor that the requesting authority blameless - Whether consideration of unfairness from point of view of plaintiff only - Remand - Whether credit for time spent in custody on remand in relation to extradition proceedings relevant consideration - Whether extradition futile having regard to time spent in custody on remand and maximum sentence for offence - Fusco v O'Dea (No 2) [1998] 3 IR 470 considered - Extradition Act 1965 (No 17), s 47 and 50(2)(bbb) - Defendant's appeal dismissed (307/2005 - SC - 29/3/2007) [2007] IESC 13

O'Keeffe v O'Toole

section 50(2)(bbb) of the Extradition Act 1965 provides, inter alia, that "a direction under this section may be given by the High Court where the Court is of the opinion that - 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...". The applicant had been convicted in England in 1995 in respect of an offence which carried a maximum sentence of six months imprisonment. He failed to appear at sentencing and absconded to Ireland. In the meantime, he had been imprisoned in this State in respect of unrelated offences committed in this jurisdiction. A request for extradition was made in 1998 and he was remanded in custody for a total of four and a half months pending a hearing of the extradition proceedings. At that hearing, in 2004, the District Court indicated that it was minded to order the applicant's extradition but allowed him to apply to the High Court to for release pursuant to section 50(2)(bbb) of the Extradition Act 1965. In July, 2005, the High Court ordered that the applicant be released pursuant to section 50. The respondent appealed to the Supreme Court.

Held by the Supreme Court in dismissing the appeal that minor offences or offences which carry small penalties should not generally be the subject matter of extradition. Conversely, the more serious the offence and the greater the possible penalty, the greater the onus on the applicant to establish that it would be unjust, oppressive or invidious to direct his extradition.

That periods of time spent in custody while awaiting extradition were factors to which regard would be had by courts in this jurisdiction. That, if returned, the applicant could face a maximum of eleven months in prison for an offence which carried a maximum of six months if the English court did not give credit for time spent by the applicant in remand awaiting extradition or, a maximum of one month if the English court did give such credit. In the first instance, it would, when considered in conjunction with the delay involved, be oppressive to order the return of the applicant and in the second it would be futile to order the return of the applicant.

1. Per Murray C.J. dissenting, that the first matter an applicant had to satisfy the court of was that the lapse of time involved was an exceptional circumstance. In determining whether a lapse of time constituted an exceptional circumstance, the court did not have regard to culpable delay or other contribution by one party or another to the lapse of time. Ten years delay constituted such an exceptional circumstance but was not, of itself, a ground for relief under section 50 of the Act of 1965.

2. That consideration of such factors as the reasons for the lapse of time and culpable delay on the part of any party were matters to be taken into account at the later stage in determining whether there were other exceptional circumstances but in particular whether in all the circumstances extradition would be unjust, oppressive or invidious. That the delay and the time spent by the applicant in custody awaiting determination of extradition proceedings were elements created by the applicant by absconding and committing crimes in this State. A convict who absconded in breach of a court order was at risk of being kept in custody pending his final appearance to face sentence due to the fact that there was a risk he might abscond again.

3. That, whilst time spent in custody pre-trial could be taken into account by a sentencing court in the State, the fact that it was not a practice in a requesting state, was not a relevant factor for consideration in determining whether it would be unjust, oppressive or invidious to return an applicant in an application under the Act of 1965.

Obiter dictum: that there was no requirement that a requesting state had to give general undertakings or information concerning the actual sentence that would be imposed by it in an application for extradition under the Act of 1965.

Reporter: P.C.

1 JUDGMENT of Murray C.J. delivered on the 29th day of March, 2007

2 This is an appeal by Assistant Commissioner O'Toole of An Garda Siochána, the respondent/appellant, hereafter the appellant, from an Order of the High Court directing the release of the applicant/respondent, hereafter the respondent, pursuant to s. 50 of the Extradition Act, 1965 as amended and which directed that his extradition to the United Kingdom be refused pursuant to s. 50 of that Act. The respondent brought these proceedings pursuant to s. 50 of the Act following an Order of the District Court pursuant to s. 47 of the Act made on 7 ^th October, 2004 for his extradition to the United Kingdom on foot of a warrant issued by a Magistrate's Court in the county of West Midlands, England. That warrant was for his arrest so that he might be brought before Warleigh Magistrate's Court, West Midlands, England for sentence in respect of an offence of burglary for which he had been convicted, on a plea of guilty, before that Court on 11 ^th July, 1995.

3 The English warrant was issued by reason of the fact that having been convicted of the offence of burglary on 11 ^th July, 1995 the respondent was then released on bail by the English Court with an obligation to surrender to that Court on 2 ^nd August, 1995 for sentence in respect of his conviction, but in breach of those bail conditions he did not appear at the Magistrate's Court for sentencing. He absconded to this country.

Statutory Provisions

4 Section 47(1) of the Extradition Act, 1965, as amended, provides:

"Where a person named or described in a warrant is before the District Court in pursuance of this Part, that Court shall, subject to the provisions of this Part, make an order for his delivery into the custody of a member of a police force of the place in which the warrant was issued, for conveyance to that place, and remand him until so delivered."

5 The issues in these proceedings are governed by s. 50(2)(bbb) of the Extradition Act, 1965 as amended by the Extradition (Amendment) Act, 1987. This provides:

6 2 "50.-(1) A person arrested under this Part shall be released if the High Court or the Minister so directs in accordance with this section.

7 (2) A direction under this section may be given by the High Court where the Court is of opinion that -

8 ...

9 (bbb) by reason of the lapse of time since the commission of the offence specified in the warrant or the conviction of the person named or described therein of that offence and other exceptional circumstance, it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under s. 47, or ..."

Legal Issue

10 The basic legal issue which arises in this case is whether it would be unjust, oppressive or invidious to require that the respondent be extradited in all the circumstances of the case and by reason of the lapse of time between the date of his conviction and the date on which he made his application for release to the High Court and other exceptional circumstances.

The Facts

11 The facts and circumstances of this case are not in issue between the parties. They relate essentially to the course of events, and in particular legal proceedings, both criminal prosecutions in this country and applications related to his extradition subsequent to his conviction in England up to the point when this application was heard by the High Court.

12 It is sufficient therefore to set out the sequence of events which are...