Long v O'Toole

JurisdictionIreland
JudgeMr. Justice Kearns
Judgment Date19 October 2001
Neutral Citation[2001] IEHC 131
CourtHigh Court
Docket Number[1999 No. 507 S.P.],507 sp/1999
Date19 October 2001

[2001] IEHC 131

THE HIGH COURT

507 sp/1999
LONG v. O'TOOLE (ASSISTANT COMMISSIONER)

BETWEEN

ANTHONY LONG
PLAINTIFF

AND

ASSISTANT COMMISSIONER PATRICK O'TOOLE
DEFENDANT

Citations:

EXTRADITION ACT 1965 S50

EXTRADITION ACT 1987 - 1994

CUSTOMS & EXCISE MANAGEMENT ACT 1979 (UK) S170

FIREARMS ACT 1968 (UK) S18

FIREARMS ACT 1968 (UK) S18(1)

FIREARMS ACT 1964 S27(B)

CRIMINAL LAW (JURISDICTION) ACT 1976 S9

CRIMINAL JUSTICE ACT 1984 S14(5)

FIREARMS ACT 1968 (UK) S6

EXTRADITION ACT 1965 S50(1)

EXTRADITION ACT 1965 S50(2)(bbb)

KWOK MING WAN V CONROY 1998 3 IR 527

B(M) V CONROY 2001 2 ILRM 311

CUNNINGHAM V GOVERNOR OF MOUNTJOY PRISON 1989 ILRM 33

CRIMINAL JUSTICE ACT 1960 S2

DUTTON V DISTRICT JUSTICE O'DONNELL 1989 IR 218

WYATT V MCLOUGHLIN 1974 IR 378

FULONG, STATE V KELLY 1971 IR 132

GILLILAND V OVERNOR OF MOUNTJOY PRISON 1987 IR 201

HANLON V FLEMING 1981 IR 489

EXTRADITION ACT 1965 S47

CHARLETON OFFENCES AGAINST THE PERSON 1992 382

WILSON V SHEEHAN 1979 IR 423

Synopsis:

CRIMINAL LAW

Extradition

Delay - Fair procedures - Corresponding offence - Whether offence in extradition warrant corresponded to offence under Irish law - Whether exceptional circumstances established prohibiting extradition of accused - Whether delay in seeking extradition exceptional and extraordinary - Extradition Act, 1965 section 50 - Firearms Act, 1964 - Criminal Law (Jurisdiction) Act, 1976 - Criminal Justice Act, 1984 (1999/507Sp - Kearns J - 19/10/01)

Long v O'Toole - [2001] 3 IR 548

The plaintiff sought to challenge District Court orders authorising his extradition to England. The plaintiff had been convicted of offences in England relating to the possession of a firearm and a related offence of acquiring goods with the intent to defraud Her Majesty of duty payable. Thereafter the plaintiff absconded and returned to Ireland where he resided openly at his former address. Some five years after his conviction warrants were issued for his extradition to England and the District Court certified that the offences corresponded with offences under Irish law. The plaintiff challenged his extradition on the basis that no explanation had been provided for the delay and it would be unjust, oppressive and invidious to order his delivery. Additionally the plaintiff argued that the offence specified in the warrant did not correspond to an offence known in Irish law. Mr. Justice Kearns was satisfied that a significant lapse of time had elapsed which constituted exceptional circumstances. Fair procedures required that the prosecuting authorities should have moved with reasonable expedition and they had not done so. It would be therefore unjust to order the plaintiff's extradition. In addition the offences specified did not correspond with any offences under Irish law. The plaintiff would be released.

1

JUDGMENT of Mr. Justice Kearns delivered the 19th day of October, 2001 .

BACKGROUND
2

On the 7th December, 1999 the Plaintiff herein proceeded by way of Special Summons for an Order directing his release pursuant to Section 50 of the Extradition Act 1965as amended by the Extradition Acts, 1987–1994, in respect of four District Court Orders dated the 6th December, 1999 for the extradition of the Plaintiff to the United Kingdom. The application is grounded upon the Affidavit of the Plaintiff sworn on the 2nd March, 2000. Affidavits on behalf of the Defendant were sworn by Sgt. Martin O'Neill, Inspector Geraint Wynne Jones, Jason Guy Mansell and Moira Kitchen.

3

Voluntary discovery was made under cover of three letters dated 2nd February, 2001, the 21st February, 2001 and the 2nd April, 2001 . Further discovery was made by Affidavits filed on behalf of the Defendant by Martin O'Neill on the 23rd July, 2001 and a further Affidavit of Michael Heffernan was sworn on behalf of the Defendant on the 27th July, 2001.

4

From the foregoing documentation it is possible to set out the factual background to this case, noting some minor variations between the facts as deposed to by the Plaintiff and those deposed to in various Affidavits sworn on behalf of the Defendant.

5

On the 3rd day of November, 1992, the Plaintiff was a passenger in a motor vehicle which was stopped by police in Birmingham, England. The driver of the vehicle was found to have strapped to his body, beneath his clothing, a number of guns, together with ammunition. Thereafter the Plaintiff entered pleas of guilty in the Crown Court at Birmingham on the 22nd February, 1993 in respect of four offences of having firearms with intent to commit an indictable offence. The warrants from England submitted to the District Court specify the indictable offence as being an offence contrary to Section 170 of the Customs and Excise Management Act, 1979, contrary to Section 18 of the Firearms Act, 1968.

6

Section 170 of the Customs and Excise Management Act, 1979 provides that it shall be an indictable offence for any person to knowingly acquire goods for the purpose of exporting same with intent to defraud Her Majesty of any duty payable on the goods.

7

Section 18 of the Firearms Act, 1968provides:-

"(1) It is an offence for a person to have with him a firearm or imitation firearm with intent to commit an indictable offence, or to resist arrest or prevent the arrest of another, in either case while he has the firearm or imitation firearm with him."

8

The Plaintiff was sentenced to 7 years on each offence, the same to run concurrently.

9

On the 20th January, 1994, the Plaintiff absconded from the Remand Centre in Warrington while on temporary release.

10

Following this abscondence, he returned immediately to Ireland and resided openly at his former address in Dublin. This situation continued for a number of years. Warrants for his arrest were finally issued in the United Kingdom on the 12th October, 1998, which said warrants were endorsed by the Defendant on the 15th January, 1999. Thereafter the Plaintiff was arrested at his home in Dublin on the 18th January, 1999. There were successive adjournments of the matter in the District Court until the 6th December, 1999.

11

By his orders dated 6th December, 1999, District Judge O'Neill directed the extradition of the Plaintiff to the United Kingdom, certifying that the offences corresponded with offences under Section 27(B) of the Irish Firearms Act, 1964as inserted by Section 9 of the Criminal Law (Jurisdiction) Act, 1976and as amended by s. 14(5) of the Criminal Justice Act 1984, which states as follows:-

12

27(b)(1) "A person who has with him a firearm or a imitation firearm with intent to commit an indictable offence or to resist or prevent the arrest of himself or another, in either case while he has the firearm or imitation firearm with him, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years."

13

In his grounding Affidavit, Anthony Long contends:-

14

(a) That he lived openly in Dublin drawing unemployment benefit from January, 1994 until April, 1998.

15

(b) That a neighbour in Dublin, Bernie O'Driscoll, was informed by members of An Garda Siochána that the Plaintiff was at large from custody in England soon after his return to Ireland.

16

(c) Prior to July, 1994, the Plaintiff had informal contact with members of An Garda Siochána who were aware that he was unlawfully at large

17

(d) In or about July, 1994, during an arrest in respect of an unrelated matter, Inspector Michael Fitzpatrick indicated to the Plaintiff that he was aware that the Plaintiff was at large.

18

(e) On the 28th November, 1996 during a further unrelated arrest at Lucan Garda Station, members of An Garda Siochána indicated to him that they were aware he was at large, and that if he didn't co-operate with other inquiries then in train "he would be put on the next plane from Baldonnel to England".

19

By way of response to these averments, the Defendant, in the Affidavit of Martin O'Neill sworn on the 7th July, 2000 denies only that the indication about putting the Plaintiff on a plane was given during the arrest on the 28th November, 1996. In the Affidavit of Geraint Wynne Jones, sworn on the 26th September, 2000 the following averments are made:-

20

(a) Following on the Plaintiff's escape, particulars in relation thereto had been circulated on the Police National Computer in the UK.

21

(b) In consequence of this circularisation, any enquiry made relating to the Plaintiff would have been received by the Cheshire Constabulary.

22

(c) The Cheshire Constabulary first became aware of the Plaintiffs residence in 1998.

23

(d) This awareness arose from contact made in 1998 by An Garda Siochána to Interpol in the UK with regard to another matter.

24

The following additional facts emerge from the discovery made:-

25

(a) The Plaintiff had informal contact in Dublin with members of An Garda Siochána prior to July, 1994 and they were aware the Plaintiff was at large in respect of a prison sentence imposed in the U.K.

26

(b) On the 25th June, 1994 Inspector Fitzpatrick, following an arrest of the Plaintiff, telexed the West Midlands Police and the Cheshire Constabulary to confirm that the Plaintiff was at large. He further left a telephone message for D/I Bates at Ladywood Police Station in Birmingham who was dealing with the case but his call was not returned.

27

(c) On the 8th August, 1994 by Interpol communication instigated by Garda Declan Claffey, An Garda Siochána informed the UK authorities that the Plaintiff was resident in Ireland and sought advice as to whether his extradition would be considered.

28

(d) By Interpol communication on the 10th August, 1994 the UK authorities confirmed to An Garda Siochána that the Plaintiff was an escapee and that the question of his extradition was "being considered".

29

(e) By further Interpol communication of the 2nd...

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4 cases
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    ...I confine my view to the particular facts of the present case. Every other case must be judged on its own facts.’ 8 Long v. O'Toole [2001] 3 I.R. 548 occurred in the context of extradition law as it stood prior to the introduction of the European Arrest Warrant regime in 2003. In that case,......
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