McGlinchey v Governor of Portlaoise Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello
• Judgment Date: 06 December 1989
• Neutral Citation: 1989 WJSC-HC 1917
• Docket Number: No. 8698P/1987
• Court: High Court
• Date: 06 December 1989

1989 WJSC-HC 1917

THE HIGH COURT

No. 8698P/1987

No. 8699P/1987

MCGLINCHEY v. IRELAND & AG

BETWEEN

DOMINIC McGLINCHEY

PLAINTIFF

AND

IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Citations:

EXTRADITION ACT 1965 PART III

EXTRADITION ACT 1965 S43

EXTRADITION ACT 1965 S45

EXTRADITION ACT 1965 S47

EXTRADITION ACT 1965 S50

MCGLINCHEY V WREN 1982 IR 154, 1983 ILRM 169

CAHILL V SUTTON 1980 IR 269

CONSTITUTION ART 1

CONSTITUTION ART 2

CONSTITUTION ART 3

CONSTITUTION ART 4

CONSTITUTION ART 5

CONSTITUTION ART 6

CONSTITUTION ART 34

CONSTITUTION ART 35

CONSTITUTION ART 40

GILLESPIE V AG 1976 IR 233

RSC O.39 r1

EXTRADITION (AMDT) ACT 1987

EXTRADITION (AMDT) ACT 1987 S2

EXTRADITION ACT 1965 S44A

EXTRADITION ACT 1965 S44B

CRIMINAL LAW JURISDICTION BILL 1975, IN RE 1977 IR 112

MCGIMPSEY V IRELAND 1989 ILRM 209

GILSENAN, STATE V MCMORROW 1978 IR 360

ERNE DRAINAGE & DEVELOPMENT ACT 1950 S7

FOYLE FISHERIES ACT 1952 S8

GREAT NORTHERN RAILWAY ACT 1958 S3

CRIMINAL LAW (JURISDICTION ACT) 1976

JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS (EUROPEAN COMMUNNITIES) ACT 1988

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986

EXTRADITION ACT 1965 S55

MCGLINCHEY V IRELAND & AG UNREP COSTELLO 6.12.89 1989/7/1917

MCGLINCHEY V GOV PORTLAOISE UNREP HIGH 13.1.88 1988/2/483

Synopsis:

CONSTITUTION

Statute

Validity - Extradition - Foreign warrant - Invalidity - Discovery - Failure - Warrant executed within the State - (1987/8698 P & 8699 P - Costello J. - 6/12/89) - [1990] 2 I.R. 220

|McGlinchey v. Ireland|

CRIMINAL LAW

Extradition

Arrest - Warrant - Validity - Foreign law - Proof - Invalidity established - Several prior unsuccessful actions by plaintiff - ~Res judicata~ - Issue estoppel - ~Locus standi~ of plaintiff - Validity of statutory provisions having regard to Constitution - Issues raised not determined in any of several earlier actions - ~Locus standi~ of plaintiff accepted - No relief claimed in respect of spent invalid foreign warrant of arrest - Extradition Act, 1965, ss. 43, 45, 47, 55 - Criminal Law (Jurisdiction) Act, 1976 - Extradition (Amendment) Act, 1987 - Constitution of Ireland, 1937, Articles 34, 40 - (1987/8698 P & 8699 P - Costello J. - 6/12/89) - [1990] 2 I.R. 220

|McGlinchey v. Ireland|

EVIDENCE

Estoppel

Issue - ~Res judicata~ - Extradition - Foreign warrant - Arrest - Validity of warrant not determined in any of several prior actions - (1987/8698 P & 8699 P - Costello J. - 6/12/89)

|McGlinchey v. Ireland|

PRACTICE

Parties

~Locus standi~ - Statute - Validity - Challenge - Issue also raised in concurrent action - Plaintiff conducting his own case - ~Locus standi~ accepted - (1987/8698 P & 8699 P - Costello J. - 4/12/89)

|McGlinchey v. Ireland|

1 Judgment of the Honourable Mr. Justice Costello delivered the 6th day of December 1989.

PART I

THE FACTS

2 Essentially these proceedings are about the constitutionality of Part III of the Extradition Act, 1965(which relates inter alia to the extradition of suspects to Great Britain and Northern Ireland). To explain the issues that arise the facts relating to the Plaintiff's extradition in 1982 and previous proceedings instituted by him must be briefly outlined.

3 On the 24th June, 1981 a warrant for the arrest of the Plaintiff in these proceedings was issued in Northern Ireland by one Robert Luke who was described in it as a Justice of the Peace in the Petty Sessions District of Ballymena in Northern Ireland. The warrant recited that a complaint on oath had been made to the effect that the Plaintiff in these actions murdered a lady called Mrs. Hester McMullen on the 28th March, 1977. This warrant was on the 11th December 1981 endorsed for execution in the State by the Deputy Commissioner of the Garda Siochana under Section 43 of the Extradition Act, 1965.The Plaintiff was arrested on 27th January, 1982 on foot of it and brought before a District Justice pursuant to Section 45 of the Act. On the 2nd February 1982 his extradition to Northern Ireland was ordered by the District Court under Section 47. On the 9th February, 1982 he issued a summons under Section 50 claiming a direction for his release on the ground that the offence with which he was charged was a political offence and in addition that there were substantial grounds for believing that if removed from the State he would be charged with a political offence. The application failed in the High Court. He appealed to the Supreme Court. On 7th December, 1982 his appeal was disallowed.

4 The Plaintiff had been granted bail pending the determination of his Section 50 proceedings. He failed to comply with it's terms and after the Supreme Court decision dismissing them it was not possible to comply with the extradition order of the 2nd February, 1982 until his eventual arrest on the 17th March 1984. This arrest took place in circumstances to which I will refer in a moment. He immediately applied to restrain his extradition but his application was refused by the High Court and, on appeal, by the Supreme Court and he was handed over into the custody of members of the R.U.C. He was then charged in Northern Ireland with the murder of Hester McMullen and convicted of it. On appeal the conviction was set aside.

5 The Plaintiff violently and with the use of firearms resisted the arrest effected on 17th March 1984. A request for his extradition from Northern Ireland to answer charges arising from the circumstances of that arrest was made and duly granted by the authorities after his release from custody in Northern Ireland. He was then charged in the State with two offences and on 11th March 1986 was convicted (a) of possession of firearms with intent to endanger life and (b) with shooting with intent to resist arrest. On the first offence he was sentenced to ten years imprisonment to date from the 17th March 1984, and in respect of the other to ten years penal servitude to commence from the date on which his conviction and sentence was imposed. He is currently serving these sentences.

6 In 1987 he instituted Habeas Corpus proceedings (1987 No. 288 S.S.) in which he challenged the validity of his detention. On the 13th January 1988 a Divisional Court of the High Court refused his application. His appeal against this refusal was dismissed by the Supreme Court on 20th July, 1988. When these proceedings were pending he had instituted two other sets of proceedings in the High Court, 1987 No. 8698P and 1987 No. 8699P. These are the proceedings to which this judgment relates. They were tried by me together and this judgment contains the conclusion I have reached on the issues which have arisen in both actions.

7 The first action (1987 No. 8698P) relates to the Plaintiff's claim that the warrant for his arrest issued on 24th June 1981 in Northern Ireland was invalid, that the subsequent proceedings taken on foot of this warrant in the State which led to his arrest and detention and to the order of the 2nd February, 1982 for his extradition were illegal and invalid, and that Part III of the Extradition Act, 1965 which failed to safeguard the Plaintiff against such illegal proceedings is thereby unconstitutional. The second action (1987 No. 8699P) makes no reference to the Northern Ireland warrant but contains a claim that the 1965 Act is unconstitutional on a number of grounds unconnected with that warrant. It is important to note (for reasons to be explained in a moment) that the only relief claimed in both the actions is declaratory relief. In the first action he claims a declaration (a) that the proceedings on foot of the Northern Ireland warrant were illegal and unconstitutional and (b) that Part III of the 1965 Act is unconstitutional. In the second action he seeks a declaration that Part III of the 1965 Act is unconstitutional and that each section of that Part, namely section 41–55 is inconsistent with the Constitution. The Plaintiff has made no claim that he is entitled to damages should the court decide either (a) that the proceedings here on foot of the Northern Ireland warrant were invalid and that his detention on foot of them was wrongful or (b) that the 1965 Act is unconstitutional. And he has expressly stated that he does not contend that a decision in his favour on the issues raised in these actions could have any possible bearing on the validity of his present detention. The relief he seeks is a declaratory order condemning Part III of the 1965 Act.

PART II

Preliminary issues:

8 There are two preliminary issues which arise on the pleadings with which I should deal at the outset of this judgment. Firstly, it is said on the Defendants" behalf that in the second action (in which the Plaintiff seeks a declaration that Part III of the 1965 Act is unconstitutional) he has no locus standi (a point not taken in the first action in which the validity of the Northern Ireland warrant and it's consequences are in issue). Secondly, it is claimed by the Defendants that the issues raised in both actions are res judicata and the Plaintiff is estopped from raising them now.

(i) Locus standi

9 On the first point, the Plaintiff has informed the court that he is very apprehensive that when he has served his present sentences another application for his extradition may be brought by the Northern Ireland authorities on charges other than those relating to the murder of Mrs. McMullen. He stated in court that he understood that warrants for his arrest in Northern Ireland on other charges had been issued but he adduced no evidence in support of this assertion and I cannot approach this issue on the basis that such warrants exist. But I am prepared to accept that the Plaintiff has the apprehension that another application for his extradition may be made. Again, I should observe that he has adduced no evidence to establish any objective basis for this apprehension but in considering his submission I think I am...