Lynch v O'Toole
THE SUPREME COURT
Appeal No. 175/2003
Appeal No. 176/2003
Appeal No. 157/2003
IN THE MATTER OF AN APPLICATION UNDER SECTION 50 OF THE EXTRADITION ACTS 1965-2001
IN THE MATTER OF AN APPLICATION UNDER SECTION 47 OF THE EXTRADITION ACTS 1965-2001
Criminal law - Extradition - Appeal - Delay - Whether delay such that extradition warrants should not be executed - Whether aggravating factors present such that execution of warrants should be refused -Whether - Extradition Act 1965, sections 47 and 50.
The applicant had been charged with various offences in the State which ultimately were struck out. At that time there were also warrants outstanding against the applicant seeking his extradition to England for various offences allegedly committed there. The trial judge, at the hearing into those extradition warrants, found that the investigating garda had acted improperly in offering the inducement to the applicant of not executing the extradition warrants in return for information in relation to the offences committed in this jurisdiction. He, however, held that no constitutional right of the applicant’s had been infringed by the said conduct as no consequences adverse to the applicant had resulted therefrom.
The applicant brought three appeals relating to that order, the first being in relation to delay in enforcing the extradition warrants under section 50(2)(bb) of the Extradition Act 1965. The applicant submitted that the two year delay should be viewed in light of the said conduct of the garda. The applicant also submitted that the arresting garda had to have a reasonable suspicion and brought an appeal under section 47 of the Act of 1965 on that ground.
Held by the Supreme Court in dismissing each of the three appeals that while the conduct of the garda had to be condemned it had no effect on the extradition proceedings and no constitutional right had been identified which had been invaded. The delay in executing the warrants were less than in any case in which a defence under section 50(2)(bb) of the Act of 1965 had been successful and the explanation for the delay was justified.
In relation to the proceedings under section 47 of the Act of 1965, an arrest under the Extradition Act was a statutory arrest and was governed by the procedures set out therein which were followed by the arresting authorities.
Judgment delivered on 24th day of July, 2003 by Denham J.
Wayne Patrick Lynch, hereinafter referred to as the applicant, has brought three appeals to this Court, all relate to an extradition application. The first is an appeal from an order of the High Court under s. 50 of the Extradition Act, 1965, as amended; the second is a judicial review; and the third arises from s. 47 of the Extradition Act, 1965, as amended.
2. Undisputed Facts
The learned High Court judge found that there were undisputed facts. Thus, the applicant, who was born in Dublin on the 14th March, 1975, was at all times an Irish citizen and domiciled in this country. On the 15th October, 2000 having been in England for a short period of time it is alleged against him that at Stevenage, Hertfordshire, he unlawfully and maliciously wounded one Sayed Nader Seifi with intent to do him grievous bodily harm contrary to s. 18 of the Offences Against the Persons Act, 1861, and secondly on the same occasion that he unlawfully and maliciously wounded the said Mr. Seifi contrary to s.20 of the Act of 1861. Shortly after the alleged commission of these alleged offences he was arrested and questioned by the police and some hours later he was given station bail, a condition of which compelled him to appear at a later date at the local magistrates court. This he failed to do and a bench warrant was issued for his arrest at some unspecified date. Apparently because of alleged threats to his person the applicant returned to Ireland within a day or two of the l5th October and accordingly he failed to honour his ball conditions. On his return to this jurisdiction he resided with his mother at 4, St. Auden’s Terrace, High Street, Dublin 8 which was and is the family home. He stayed at this address until June, 2002 when, for approximately four weeks, he moved with his girlfriend to Ballycullen. Thereafter he resided at 127, Cooley Road, Drimnagh where he was arrested pursuant to the warrants in this case. At all stages he lived openly and whilst at High Street he signed on for certain periods
at Bishops Street Labour Exchange and also was in receipt of a rent allowance from the Health Board at Drimnagh. At no time did he return to the United Kingdom or otherwise leave this jurisdiction.
On the 20th September, 2001 a Justice for the Hertfordshire commission area, being a judicial authority in England and Wales, issued a warrant, identified as “Warrant A”, for the applicant. This alleged that on the 15th October, 2000 at Stevenage he committed the s. 18 offence against the said Mr. Seifi and in respect thereof it directed that constables of the Hertfordshire constabulary arrest the applicant and bring him immediately before the magistrates court. A similar warrant, identified as “Warrant B”, was issued on the same day in respect of the alleged offence contrary to s. 20 of the 1861 Act.
On the 3rd October, 2001 these warrants were received in this jurisdiction. On the 8th November the advice of the Attorney General was obtained and on the 15th November these warrants were approved by the Department of Justice. On the 9th September, 2002 the third’ named respondent in the judicial review proceedings, Assistant Commissioner Patrick O’Toole, endorsed these warrants and they were executed by Sergeant O’Neill on the 1st October, 2002. The applicant’s arrest on that occasion was at 127, Cooley Road, Drimnagh, Dublin 12.
The applicant was involved in two incidents which gave rise to the preferment of criminal charges against him in this jurisdiction. On the 21st May, 20001 in Kilkenny it was alleged that the applicant was in unlawful possession of drugs contrary to s. 3 of the Misuse of Drugs Act, 1977, as amended, and also that he had possession of such drugs for the purpose of sale or supply contrary to s. 15 and s. 27 of that Act. Having failed to attend at the District Court, the resulting bench warrant was executed, in the context of the second set of criminal charges
against him, by Sergeant Lyng from Kilkenny Garda station on the 4th October, 2001. Ultimately on the 13th November of 2001 he was sentenced, on a plea, to twelve months on each charge with the entire period thereof being suspended.
In September, 2001 Detective Garda Philip Rowe, from Harcourt Terrace Garda station, Dublin 2, received a complaint in relation to a stolen cheque where an endeavour to obtain IR£8,700.00 by false pretences had been made at the Bank of Ireland, College Green. Apparently the cheque had been stolen on the 10th September from offices in Merrion Square and had been lodged by the applicant to his own account at College Green some days later. On the 1st October, 2001 Garda Rowe arrested the applicant at 4, St. Auden’s Terrace, High Street in respect of the stolen cheque and detained him pursuant to s. 4 of the Criminal Justice Act, 1984. On Harcourt Terrace charge sheet numbers 1531/2001 and 1532/2001 the applicant was charged with intent to defraud the manager of the Bank of Ireland, College Green of IR£l8,700.00 by falsely pretending that the subject cheque was good and valid order contrary to common law and, secondly, that he had lodged the stolen cheque knowingly or believing the same to have been stolen contrary to s. 33 of the Larceny Act, 1916, as amended by s. 3 of the Larceny Act, 1990. He was released on station ball and remanded to appear at Court 45 of the Dublin Metropolitan District Court on the 4th October, 2001.
Between the date of his arrest and the remand date Garda Rowe confirmed what he suspected on the 1st October, namely, that a bench warrant from Kilkenny District Court existed for the accused and accordingly he arranged for Detective Sergeant Jim Lyng to execute the warrant on the 4th October. On that date the applicant was arrested and taken into custody. Consent was forthcoming to independent ball which the applicant took up but only after spending some days in prison.
Between October, 2001 and February, 2002 the applicant appeared on remand before the District Court on several occasions while the book of evidence was being prepared. Apparently the District judge had refused jurisdiction to deal with the aforesaid charges in the District Court. Ultimately on the 1st February, when the book was still not ready, the District Court struck out the said charges against the applicant. The same were never reactivated, with the Director of Public Prosecutions finally indicating on the 22nd August, 2002 that the applicant should not be recharged for these offences. That information was communicated to Garda Rowe on the 5th September, 2002. On the 1St October, 2002 the warrants from England were executed by Sergeant O’Neill.
3. Disputed Facts
In the High Court there were disputed facts. The applicant alleged that in September, 2001 Garda Rowe informed-him that the Garda authorities had received from their English counterparts a warrant involving...
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