Kerrigan v Attorney General and Another
| Jurisdiction | Ireland |
| Judge | Ms. Justice Dunne |
| Judgment Date | 04 April 2006 |
| Neutral Citation | [2006] IEHC 354 |
| Docket Number | Record No. 299 SP/[2004] |
| Court | High Court |
| Date | 04 April 2006 |
[2006] IEHC 354
THE HIGH COURT
BETWEEN
AND
EXTRADITION ACT 1965 S 50(2)(bbb)
EXTRADITION ACT 1965 S 50
EXTRADITION ACT 1965 S 47
MARTIN v CONROY 2002 1 ILRM 461
B (M) v CONROY (ASSISTANT COMMISSIONER) 2001 2 ILRM 311
KWOK MING WAN v ASSISTANT COMMISSIONER CONROY 1998 3 IR 527
ELLIS v O'DEA 1990 ILRM 87 1989 IR 530
LYNCH v AG & ORS 2003 3 IR 416 2004 1 ILRM 129
LARKIN v O'DEA 1995 IR 485
QUINLIVAN v CONROY (NO 2) 2000 3 IR 154
MYLES v SREENAN 1999 4 IR 294
FUSCO v O'DEA 1998 3 IR 470
LONG v O'TOOLE 2001 3 IR 548
Criminal law - Extradition - Delay - Improper purpose - Whether extradition sought for improper purpose - Whether unexplained delay in seeking extradition - Whether applicant should be delivered up for extradition - Extradition Act 1965, s. 50(2)(bbb)
Facts: the applicant sought his release pursuant to s. 50(2)(bbb) of the Extradition Act 1965 and a direction that he not be surrendered to the United Kingdom for extradition. He complained that there had been unreasonable and unexplained delay by the prosecuting authorities in seeking his extradition and that it was sought for the purposes of putting pressure on him to assist in the prosecution of an unrelated offence involving his brother.
Held by Ms Justice Dunne in refusing to deliver up the applicant for extradition to the United Kingdom and directing his release that in considering the meaning of s. 50(2)(bbb) of the Extradition Act 1965 the court had to look at the lapse of time together with the question of exceptional circumstances and if it was established that there had been a lapse of time and other exceptional circumstances, the court should proceed to consider if it would be unjust, oppressive or invidious to deliver up the applicant under s. 47. That there had been no attempt to explain the delay that occurred. That the use of the extradition proceedings were held in terrorem over the applicant and, as such, was inappropriate.
Reporter: P.C.
Martin John Kerrigan (the applicant) seeks an order herein directing his release pursuant to the provisions of s. 50(2)(bbb) of the Extradition Act,1965.
Section 50 of the Extradition Act,1965, as amended, provides:-
1. A person arrested under this Part shall be released if the High Court or the Minister so directs in accordance with this section.
2. A direction under this section may be given by the High Court where the Court is of opinion that —
(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 s. 47, or…
The proceedings herein were commenced by a special summons issued on 27th July, 2004. He was arrested on foot of the extradition warrants on the 3rd January 2004. The applicant herein took up bail on 5th January, 2004. Extradition Orders in respect of the warrants were made on the 22nd July 2004.
It is contended on behalf of the applicant herein that there has been delay in seeking extradition in this case and it is also alleged that it would be unjust, oppressive or invidious to deliver up the applicant on foot of the extradition warrants herein.
As stated above, the applicant herein was arrested on foot of three warrants on 3rd January, 2004, in respect of three alleged offences. The first two warrants relate to alleged offences of robbery on 9th August, 1993. Warrant (a) is in respect of an alleged robbery at a bank in Northwood, Middlesex, England; warrant (b) relates to an alleged robbery of a customer who was present in the bank at the same time. Warrant (c) relates to the possession of a firearm or an imitation firearm with intent to commit an indictable offence namely robbery on the same occasion.
A number of affidavits were sworn by and on behalf of the applicant herein and on behalf of the respondent. I propose to refer briefly to the affidavits.
(a) Affidavit of Darach McCarthy — this was a short affidavit sworn by Darach McCarthy, a solicitor in the office of Michael J. Staines & Co. He set out the fact that the applicant had been arrested on foot of the extradition warrants on 3rd January, 2004, that he was admitted to bail, the terms of that bail and that the applicant now resides at his family home with his wife and two children. He stated that there has been a delay in dealing with the extradition matter and that there were grounds which would render it unjust, oppressive or invidious to deliver up the applicant and he sought the relief claimed herein.
(b) Affidavit of Martin John Kerrigan — the first affidavit sworn by the applicant on 7th October, 2004, referred to his arrest on foot of the warrants and that the application on behalf of the Attorney General pursuant to s. 47 of the Extradition Act,1965came before the High Court on 22nd July, 2004, on which date extradition orders were made in relation to each of the warrants.
The applicant proceeded to set out certain matters by way of background. He stated that he was interviewed on a number of occasions by British Police in this jurisdiction. The first such interview took place in Finglas Garda Station six or seven years prior to the swearing of the affidavit. He was contacted initially by the Gardaí who told him that British Police wished to question him about the case of a missing person, one Catherine Corridan. There were two English policemen at that meeting which lasted approximately two hours. There was a second meeting which took place at Malahide Garda Station in the summer of 2002. At that meeting he was requested to give a DNA sample which he voluntarily gave and that meeting lasted approximately an hour or more. A final meeting took place at his home at 15 Foxdene Drive, Lucan, Co. Dublin and in attendance at that meeting was one Detective Inspector Brent Hyatt and Detective Sergeant Pickersgill of the London Metropolitan Police together with Garda Ronan Dunne. This meeting took place in September/October 2003.
During the meeting which took place in September/October 2003 reference was made to the applicant's brother Samuel Kerrigan. At that time he was serving a twelve year sentence for the offences referred to in the warrant, the subject matter of these proceedings. During the meeting the English police officers indicated that they were going to charge Samuel Kerrigan with the murder of Catherine Corridan. The applicant was asked to go to England to speak to his brother Sammy to see if he knew anything about the matter. The applicant declined. The applicant says that at that stage of the meeting a photograph was produced and the two policemen advised him that they believed the photograph showed the applicant in the course of robbing the bank with his brother, Sammy. His brother was, as stated, then serving a twelve year sentence in connection with that robbery. He denied that the photograph depicted him and states that the English policemen told him that they were not interested in him but if he did not help them to convict his brother of the murder, they would turn the photograph over to the robbery squad. If he did help them they said that they would bury the photograph back where they found it. The applicant stated that at that point he asked the English police to leave his house and they then indicated that they were going to seek a warrant to extradite him back to England for robbery and gave him one of their cards with a phone number and asked him "to have a good long think about what they had said".
The applicant then set out his personal and family circumstances. He was born on 9th June, 1962. He states that he returned to Ireland from England in August, 1993 and he resides at the address referred to above. He said that he has resided there since his return to Ireland. He lives there with his wife and two children. His children attend school in that area and his wife works part-time. He stated that if he were to be extradited his wife would find it difficult to afford to pay the rent on the house. He pointed out that he has been registered with the social welfare authorities and that he has lived openly with full knowledge of the authorities since his return from England in or about August 1993. Prior to his return, he had been in England for approximately eighteen months. He set out matters in relation to his wife's health and the fact that she had suffered a nervous breakdown following the death of her brother some years earlier. She is under the care of a psychiatrist and takes medication for her condition.
The applicant also dealt with the question of delay since the offences allegedly occurred and said that the lapse of time has severely prejudiced his defence of the charges. He pointed out that had he had notice of the charges at an earlier stage he would have been able to check where he had been at the relevant date, time and place and he could well have had alibi evidence in relation to the allegations. He said that by reason of the lapse of time in bringing the charges he has been deprived of that opportunity. He pointed out that he had never sought to evade the authorities either in the UK or in Ireland and that any reasonable enquiries after 1993 would have discovered his whereabouts.
The applicant's wife swore an affidavit herein on 7th October, 2004. In that affidavit she referred to a phone call she received on 31st March, 2004, from Samuel Kerrigan on her home phone number. She stated that Samuel Kerrigan told her that he had done a deal with the UK authorities and that he had made certain...
To continue reading
Request your trial