Magee v O'Dea
| Jurisdiction | Ireland |
| Judge | Mr. Justice Fergus M. Flood |
| Judgment Date | 25 February 1994 |
| Neutral Citation | 1994 WJSC-HC 1318 |
| Docket Number | [1993 No. 36 Sp: 1993 No. 732 SS],No. 732 S.S./1993 |
| Court | High Court |
| Date | 25 February 1994 |
1994 WJSC-HC 1318
THE HIGH COURT
BETWEEN
AND
Citations:
OFFENCES AGAINST THE STATE ACT 1939 S30
EXTRADITION ACT 1965 S47
EXTRADITION ACT 1965 S50
CONSTITUTION ART 40
MCFADDEN, STATE V GOVERNOR OF MOUNTJOY PRISON (NO 1) 1981 ILRM 113
HOLMES, STATE V FURLONG 1967 IR 210
HEALY, STATE V O'DONOGHUE 1976 IR 325
FINUCANE V MCMAHON 1990 ILRM 105
EXTRADITION (EUROPEAN CONVENTION ON SUPPRESSION OF TERRORISM) ACT 1987S4(1)(a)(i)
EXTRADITION (EUROPEAN CONVENTION ON SUPPRESSION OF TERRORISM) ACT 1987S4(2)(a)
D V DPP UNREP SUPREME 17.11.93 1993/11/3372
EXTRADITION (EUROPEAN CONVENTION ON SUPPRESSION OF TERRORISM) ACT 1987S3
EXTRADITION (EUROPEAN CONVENTION ON SUPPRESSION OF TERRORISM) ACT 1987S4
EXTRADITION (EUROPEAN CONVENTION ON SUPPRESSION OF TERRORISM) ACT 1987S4(2)(b)
EXTRADITION (EUROPEAN CONVENTION ON SUPPRESSION OF TERRORISM) ACT 1987S4(1)(a)
Synopsis:
CONSTITUTION
Personal rights
Fair procedures - Extradition - Proceedings - Hearing - Expedition - Reasonableness - Whether suspect allowed adequate time to prepare his case - Duty of trial judge to invite application for adjournment - (1993/732 SS, 1993/36 Sp - Flood J. - 25/2/94) - [1994] 1 I.R. 500 - [1994] 1 ILRM 540
|Magee v. O'Dea|
CRIMINAL LAW
Extradition
Exception - Political offence - Category - Exclusions - Murder - Instrument - Hand gun - No collective danger to the life of persons - Prejudicial publicity in requesting State - Fair procedures not applied - Extradition Act, 1965, ss. 47, 50 - Extradition (European Convention on the Suppression of Terrorism) Act, 1987, ss. 3, 4 - Constitution of Ireland, 1937, Article 40 - (1993/732 SS, 1993/36 Sp - Flood J. - 25/2/94) - [1994] 1 I.R. 500
|Magee v. O'Dea|
NATURAL JUSTICE
Fair procedures
Extradition - Proceedings - Hearing - Expedition - Reasonableness - Whether suspect allowed adequate time to prepare his case - Duty of trial judge to invite application for adjournment - (1993/732 SS, 1993/36 Sp - Flood J. - 25/2/94) - [1994] 1 I.R. 500
|Magee v. O'Dea|
JUDGMENT of Mr. Justice Fergus M. Flooddelivered the25th day of February 1994.
The events which underlie the above entitled proceedings occurred in the City of Derby, England on April 14th, 1992. On that date Sergeant Michael Newman, a serving member of the Royal Signals Regiment, and based at the Army Recruiting Office, Main Centre, Derby was shot in the Liversage Street car-park, Derby at about 4.23 p.m. as he walked towards his car. He had just got into the car-park when he was approached from behind by two men. One of themen produced a hand gun and shot Sergeant Newman in the head at point-blank range. The assassin and his companion, ran to a car driven by an accomplice and made off. Sergeant Newman died in hospital on April 14th, 1992 from the gun shot wound he had received on the previousday.
On January 12th, 1993 a warrant for the arrest of the above named Joseph Magee, alleging that on April 14th, 1992 at Derby in the County of Derbyshire, England he murdered the said Michael Newman contrary to common law. This warrant was issued by Barbara Leslie Copestake, a Justice of the County of Derbyshire.
The said warrant was transmitted to the Defendant, Edward J. O'Dea, Assistant Commissioner of the Garda Siochana in Dublin, who backed the warrant and authorised the execution of the warrant within this State by a member of the Garda Siochana. That backing or authorisation appears to be dated January 13th, 1993.
On January 9th, 1993, by a singularly fortunate but, apparently, unconnected event, the said Joseph Magee was arrested at Limerick pursuant to Section 30 of the Offences Against the State Act, 1939, detained in Limerick Garda Station until 3 p.m. on Monday, January the 11th and brought before a special sitting of the District Court charged with an offence of failing to give his name when so requested, contrary to Section 30 of the Offences Against the State Act, 1939 and was thereafter remanded in custody to Limerick Prison until January14th.
On January 14th he was brought before the District Court on the said charge. He was not at that point in time advised or made aware that there was going to be made an application for his rendition or extradition to the UnitedKingdom. At 10.15 a.m., whilst in custody in the Courthouse in Limerick, Mr. Ted McCarthy was introduced to him and he was told he was a Solicitor, who had been retained, or, sent in by somebody, on his behalf. In conversation with Mr. McCarthy he was advised by him, that the charge upon which he was in Court was quite a minor charge and that he was unlikely to be put into prison on foot of it. Mr. McCarthy further advised him that on leaving Court he would be arrested on foot of an extradition warrant.
Shortly thereafter his case was called. Mr. McCarthy informed the presiding Judge of the District Court, of the Plaintiff's name and address, which he, the Plaintiff, duly confirmed and the proceedings were thereafter struck out.
On leaving Court, the Plaintiff, Joseph Magee, was arrested on the said English warrant by Sergeant Dan Hall, some documents were handed to him and he was brought back into Court. Within minutes, the extradition case was called (details of the proceedings are hereafter referred to) and on its conclusion on the same day the learned District Judge made an Order pursuant to Section 47 of the Extradition Act, 1965 directing his delivery, at point of departure, into the custody of a member of the Derbyshire Constabulary to be conveyed to Derby.
In addition, the learned District Judge informed the Plaintiff of his rights under Section 50 of the Extradition Act, 1965 and of his right of appeal.
The matter now comes before this Court on:-
(a) An Inquiry under Article 40 of the Constitution; and
(b) An Application for relief pursuant to the provisions of Section 50 of the Extradition Act, 1965.
It should be noted that these two forms of proceedings are not alternates but are in fact proceedings based, one on the constitutional right of a citizen and the other upon the statutory right of the citizen in these circumstances. See The State (Gary McFadden) v. The Governor of Mountjoy Prison No. 1 1981 I.L.R.M. at page 113.
It is commoncase that there are, in reality, three issues in thismatter.
(a) The validity of the District Court Order;
(b) Whether the offence charged in the warrant is a "political offence" within the current jurisprudence of extradition proceedings in the context of the provisions of the Extradition Act of 1965 and the Extradition (European Convention on Suppression of Terrorism) Act, 1987 and in particular Sections 3 and 4 of the said last mentioned statute; and
(c) The obligation of this Court to ensure a fair trial free from prejudice and bias.
In the investigation and consideration of these issues this Court is not concerned in reaching a conclusion as to who was responsible for the death of Sergeant Newman. That is not within the remit of thisCourt.
The Plaintiff in his Affidavit says that he learned for the first time on the morning of January 14th, whilst in the District Court, of the existence of an application for extradition, that within some 10 to 15 minutes the application was called, and having heard the State case, in particular as to the identification of the Plaintiff as one and the same person as that described in the warrant, theDistrict Justice retired to consider the matter, returned and without consulting either the State Solicitor or the Plaintiff's Solicitor proceeded to recall Constable Neville Black of the R.U.C., and then questioned him on his basis for his identification of the Plaintiff with the person named in the warrant.
After this the learned District Judge again retired before coming out and announcing his decision.
There is a conflict of evidence between the Plaintiff and Mr. Michael D. Murray, State Solicitor, on two matters, namely,
(a) as to whether or not the Plaintiff's Solicitor, Mr. McCarthy, cross-examined Constable Black when he first appeared in the witness box; and
(b) whether Mr. McCarthy made any submissions to the learned trial Judge at the close of the evidence or at any time.
I cannot resolve these in the absence of oral testimony. I am, however, satisfied that -
(a) extradition applications are not common form of proceedings in the Limerick District Court;
(b) that the learned District Judge did not advise the Plaintiff and/or his Solicitor that if he wished to investigate in detail the documentary side of the case he would be entitled to an adjournment so to do;
(c) the learned District Judge was unable to make up his mind at the close of the evidence as to whether identity of the Plaintiff with the person the warrant had been established to his satisfaction beyond reasonable doubt because he came back for further evidence on this aspect of the case; and
(d) the District Judge did not, prior to re-examining Constable Black, advise the Plaintiff's Solicitor or the State Solicitor of the precise nature of what he intended to do and seek submissions in the context of his expressed intentions.
In The State (Holmes) v. Furlong 1967 I.R. 210 at 223 Mr. Justice Walsh sets out what the District Judge must satisfy himself about, beyond reasonable doubt, namely,
(1) the validity of the warrant and associated documentation;
(2) that the person who has been arrested is, in fact, the person named or described in the warrant;
(3) that the offence described in the warrant corresponds with any offence under the law of the State which is an indictable offence...
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