Lynch v Attorney-General

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 08 April 2003
• Neutral Citation: [2003] IEHC 630
• Date: 08 April 2003

[2003] IEHC 630

THE HIGH COURT

Rec.No. 798JR/2002

LYNCH v. AG & CHIEF STATE SOLICITOR & O'TOOLE

BETWEEN

WAYNE PATRICK LYNCH

APPLICANT

AND

THE ATTORNEY GENERAL THE CHIEF STATE SOLICITOR ANDPATRICK O'TOOLE

RESPONDENTS

AND

IN THE MATTER OF AN APPLICATION FOR RELIEF UNDER SECTION

50 OF THE EXTRADITION ACTS 1965/ 2001IN THE PROCEEDINGS

ENTITLED

BETWEEN

WAYNE PATRICK LYNCH

PLAINTIFF

AND

PATRICK O'TOOLE

DEFENDANT

Citations:

EXTRADITION ACT 1965 S50

EXTRADITION ACT 1965 S50(2)(BBB)

EXTRADITION (AMDT) ACT 1987 S2(B)

EXTRADITION ACT 1965 PART III

EXTRADITION ACT 1965 S47

EXTRADITION (EUROPEAN UNION CONVENTIONS) ACT 2001 S20

EXTRADITION (AMDT) ACT 1994 S12

EXTRADITION ACT 1965 S47(1)(A)

EXTRADITION ACT 1965 S47(1)

EXTRADITION ACT 1965 S47(2)

EXTRADITION ACT 1965 S47(5)

EXTRADITION ACT 1965 S48(1)

EXTRADITION ACT 1965 S48(2)

EXTRADITION ACT 1965 S48(3)

EXTRADITION ACT 1965 S50(1)

EXTRADITION ACT 1965 S50(2)

MCGOLDRICK V AN BORD PLEANALA 1997 1 IR 497

GLOVER, STATE V MCCARTHT 1981 ILRM 47

ABENGLEN PROPERTIES LTD, STATE V DUBLIN CORPORATION 1984 IR 381

SLOAN V CULLIGAN 1992 1 IR 223 1991 ILRM 641

QUINLIVAN V CONROY (NO 2) 2000 3 IR 154

RSC O.49 r6

HARTE V FANNING & MAHON 1988 ILRM 20

HARTE V FANNING 1988 ILRM 75

CONSTITUTION ART 40.4.2

MCMAHON V LEAHY 1984 IR 525

ELLIS V O'DEA 1991 IR 251

OFFENCES AGAINST THE PERSON ACT 1861 S18

OFFENCES AGAINST THE PERSON ACT 1861 S20

MISUSE OF DRUGS ACT 1977 S3

MISUSE OF DRUGS ACT 1977 S15

MISUSE OF DRUGS ACT 1977 S27

CRIMINAL JUSTICE ACT 1984 S4

LARCENY ACT 1916 S33

LARCENY ACT 1990 S3

MCCORMACK, STATE V CURRAN 1987 ILRM 225

TRIMBOLE V GOVERNOR OF MOUNTJOY PRISON 1985 ILRM 465

DPP V BYRNE 1994 2 IR 236

B V DPP 1997 3 IR 140

P (C) V DPP 1999 2 IR 25

B (F) V DPP 2001 IR 656

PEOPLE V SHAW 1982 IR 1

EAST DONEGAL CO-OPERATIVE V AG 1970 IR 317

DOYLE V AN TAOISEACH 1986 ILRM 693

MCDONALD V BORD NA GCON 1965 IR 217

GLOVER V BLN LTD 1973 IR 388

CONSTITUTION ART 40

CONSTITUTION ART 15.4.1

SHANNON V AG 1985 ILRM 449

FUSCO V O'DEA (NO 2) 1998 3 IR 470

M(B) V ASSISTANT CMSR CONROY 2001 2 ILRM 311

CONSTITUTION ART 35

CONSTITUTION ART 36

CONSTITUTION ART 40.3

SIMPLE IMPORTS LTD & ANOR V REVENUE CMSR & ORS 2000 2 IR 243

EXTRADITION ACT 1965 S43

CUSTOMS LAW (CONSOLIDATION) ACT 1876 S205

CUSTOMS & EXCISE (MISCELLANEOUS PROVISIONS) ACT 1988 S5(1)

EXTRADITION ACT 1965 S54

EXTRADITION ACT 1965 S55

EXTRADITION ACT 1965 S54(1)

EXTRADITION ACT 1965 S55(1)(A)

GILLESPIE V AG 1976 IR 233

HOLMES, STATE V FURLONG 1967 IR 210

MCFADDEN, STATE V GOVERNOR MOUNTJOY PRISON (NO 1) 1981 ILRM 113

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S31

OFFENCES AGAINST THE PERSON ACT 1861 S16

OFFENCES AGAINST THE PERSON ACT 1861 S17

OFFENCES AGAINST THE PERSON ACT 1861 S19

OFFENCES AGAINST THE PERSON ACT 1861 S21

OFFENCES AGAINST THE PERSON ACT 1861 S22

OFFENCES AGAINST THE PERSON ACT 1861 S23

OFFENCES AGAINST THE PERSON ACT 1861 S24

OFFENCES AGAINST THE PERSON ACT 1861 S25

OFFENCES AGAINST THE PERSON ACT 1861 S26

OFFENCES AGAINST THE PERSON ACT 1861 S4

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S4

KWOK MING WAN V CONROY 1998 3 IR 527

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

HANLON V FLEMING 1981 IR 489

LONG V O'TOOLE 2001 IR 548

HEYWOOD V MEMBER IN CHARGE BRIDEWELL GARDA SIOCHANA UNREP SUPREME 15.2.2002 2002/13/3052

CUNNINGHAM V GOVERNOR OF MOUNTJOY PRISON 1987 ILRM 33

Synopsis:

CRIMINAL LAW

Extradition

Detention - Constitution - Habeas corpus - Delay - Multiplicity of actions practice and procedure - Garda Siochána - Whether applicant should be extradited Whether improper pressure brought to bear on applicant - Extradition Acts, 1965 - 2001 - Bunreacht na hÉireann, 1937 (2002/798JR - McKechnie J - 8/4/2003)

Lynch v Attorney General

The extradition of the applicant to England had been sought on foot of charges relating to an alleged assault. Judicial review proceedings and proceedings under section 50 of the Extradition Act had been initiated in order to challenge the extradition. An issue arose as to whether it was appropriate to have two separate sets of proceedings in train in order to challenge the extradition. It was contended by the applicant that a member of An Garda Siochána had improperly attempted to use the existence of the extradition warrants in order to force the applicant to disclose information relating to other alleged criminal activity committed in this jurisdiction. It was also argued by reason of delay as well as alleged violation of the applicant's constitutional rights that an order of extradition should not be made.

Held by McKechnie in refusing the relief sought and confirming the order of extradition. There was nothing to preclude an applicant in challenging his extradition to issue both judicial review proceedings and proceedings under the Extradition Acts. However in the interests of convenience and practicality both sets of proceedings should be heard by the same court at the same time. There had been an attempt by An Garda Siochána to improperly use the existence of the extradition warrants in order to gain further information from the applicant. Despite this conduct no information had been elicited from the applicant and no constitutional rights had been infringed. All the relevant statutory requirements had been complied with and it had not been established that the applicant's right to an expeditious trial had been breached.

1 JUDGEMENT of Mr. Justice William M. McKechniedelivered 8thday of April 2003.

1. Issues for consideration:

2 In these rendition and related judicial review proceedings there are a number of essential issues which require consideration by this court. These said issues can be summarised as follows:

3 2 No. 1: Whether a person who is the subject matter of an extradition warrant(s) can procedurally divide his challenge to the domestic processing of such warrant(s) by firstly proceeding with a judicial review application, and thereafter if unsuccessful, by continuing his challenge through the mechanism of s. 50 of the 1965 Extradition Act as amended, or whether both sets of such proceedings, being in existence at the same time, should be disposed ofsimultaneously;

4 3 No. 2: Whether this court could refuse to extradite a person, if it concluded as a matter of fact, that a member of An GardaSiochána who was investigating unrelated criminal charges against that person had sought to use the existence of an extradition warrant(s) for the purposes of obtaining information or gaining assistance from such person in relation to the alleged criminal activity of third parties, with such attempt(s) however yielding no material benefit to the said Gardaí and resulting in no incrimination of that or any other person;

5 4 No. 3: Whether a complaint of delay, simpliciter, in the issuing and/or execution of an extradition warrant(s) could attract from this court the remedy of refusal and release, in circumstances where the other requirements of s. 50 (2) (bbb), of the 1965 Act, (as inserted by s. 2(b) of the Extradition (Amendment) Act 1987), could not be satisfied,

6 5 No. 4: Whether, in the circumstances of this case, the respondents have satisfied the requirements of Part III of the aforesaid Act and as a result whether this court, in respect of the applicant, should make an order under s. 47 thereof; and finally,

7 6 No. 5: Whether if such an order is made the applicant has any defence to his extradition under s. 50 (2) (bbb) of the said Act.

2. Immediate Background:

8 On the 1 ^st October, 2002 the applicant was arrested on foot of two warrants, which purely for convenience are hereinafter referred to as extradition warrants, rather than warrants under Part III of the 1965 Act. Having been so arrested and brought before the High Court, he was committed to custody to await the processing of the extradition request. His application for bail was refused. Thereafter, two sets of proceedings were instituted on his behalf, the first in point of time was what might be described as conventional judicial review proceedings with leave, in respect thereof, being obtained from this court, (O'Neill J.,) on the 2 ^nd December, 2002. These proceedings were followed by the issue of a Special Summons dated 4 ^thDecember, 2002 which had a return date for Tuesday 10 ^thDecember, 2002. The relief, requested in the judicial review proceedings, and permitted by the order of O'Neill J., included inter alia, an injunction restraining the named respondents, being the Attorney General, the Chief State Solicitor and Patrick O'Toole, an Assistant Commissioner of An Garda Siochána, from pursuing the extradition proceedings, and secondly a declaration that this said request for extradition had been brought in breach of theapplicants" right to a speedy trial and was otherwise an abuse of process. The specialsummons sought the release of Mr. Lynch under s. 50 of the Extradition Acts 1995/ 2001.

9 3. The statement grounding the application for judicial review was supported by an affidavit of the applicant and one from his solicitor, Mr. Terence Lyons from Messrs Terence Lyons and Company. Both documents exhibited relevant material. The affidavits and exhibits in the s. 50 proceedings were identical to those in the judicial review as was the replying affidavit of Sergeant O'Neill who effected the above mentioned arrest. In addition, a second affidavit was sworn by Sergeant O'Neill in the judicial review proceedings which simply specified, in more detail, the dates of certain relevant steps in the extradition process. Detective Garda Philip Rowe also filed a replying affidavit. This evidence was responded to by further affidavits from the applicant, his mother and his uncle.

10 4. When the matter first came to trial, it was clear that no proceedings had taken place before the High Court, (formally the District Court) under s. 47 of the Extradition Act 1965, as...