McGlinchey v Ireland (No. 2)

Judgment Date01 January 1990
Date01 January 1990
Docket Number[1987 No. 8698P; 1987 No. 8699P]
CourtHigh Court

High Court

[1987 No. 8698P; 1987 No. 8699P]
McGlinchey v. Ireland (No. 2)
Dominic McGlinchey
Ireland and The Attorney General, Defendants (No.2)

Cases mentioned in this report:—

Cahill v. SuttonIR [1980] I.R. 269.

The Criminal Law (Jurisdiction) Bill, 1975IRDLTR [1977] I.R. 129; (1976) 110 I.L.T.R. 69.

Gillespie v. Attorney GeneralIR [1976] I.R. 233.

McGimpsey v. IrelandIRDLRM [1988] I.R. 567; [1989] I.L.R.M. 209.

McGlinchey v. Governor of Portlaoise PrisonIR [1988] I.R. 671.

McGlinchey v. WrenIRDLRM [1982] I.R. 154; [1983] I.L.R.M. 169.

The State (Gilsenan) v. McMorrowIR [1978] I.R. 360.

Constitution - Statute - Validity - Extradition - Procedures - Whether adequate safeguards for rights of person sought to be extradited - Extradition Act, 1965 (No. 17), Part III - Extradition (Amendment) Act, 1987 (No. 25).

Constitution - Personal rights - Liberty - Detention - Extradition - Warrants - Safeguards - Oireachtas - Enacted procedures - Scrutiny of warrants - Validity - Whether citizen's right of challenge to detention properly protected - Extradition Act, 1965 (No. 17), Part III - Extradition (Amendment) Act, 1987 (No. 25) - Constitution of Ireland, 1937, Articles 1, 2, 3 and 40.

Action - Res judicata - Estoppel - Pleading - Locus standi.

Plenary Summons.

The facts are summarised in the headnote and fully set out in the judgment of Costello J., post.

Both plenary summonses were issued on behalf of the plaintiff by Mrs. J.B. McAliskey as his agent on the 25th September, 1987, acting under a power of attorney made in writing by the plaintiff. In addition to the pleas referred to in the judgment of Costello J., the defendants also pleaded that the plaintiff's actions were an abuse of the process of the court in challenging the judgments of the Supreme Court in both the previous proceedings under s. 50 of the Extradition Act, 1965, and the habeas corpus proceedings under Article 40 of the Constitution. The facts and issues in both of those previous proceedings are fully set out in the headnotes to those cases which were reported at [1982] I.R. 154 and [1988] I.R. 671. The actions came on for hearing together before the High Court (Costello J.) on the 6th and 10th October, 1989.

The plaintiff appeared in person.

On the 24th June, 1981, a warrant for the plaintiff's arrest was issued at Ballymena by a judicial authority in Northern Ireland in relation to charges of murder of one Hester McMullen on the 28th March, 1977. The warrant was endorsed for execution in the State in accordance with s. 43 of the Extradition Act, 1965, on the 11th December, 1981. The plaintiff was arrested on foot of the extradition warrants and in due course orders for his extradition were made by the District Court. He issued a special summons on the 9th February, 1982, claiming his release under the political exemption provisions of s. 50 of the Act of 1965. His claim was dismissed in the High Court and that dismiss was on appeal affirmed in the Supreme Court: see McGlinchey v. WrenIR[1982] I.R. 154. Pending determination of those special summons proceedings the plaintiff had absconded on bail. He was arrested in the State on the 17th March, 1984, after a shoot-out near Ennis and was then extradited to Northern Ireland notwithstanding his unsuccessful attempts in the High Court and on appeal in the Supreme Court to stay or restrain his extradition. There he was acquitted on appeal of the murder of Hester McMullen and upon his release from custody he was extradited back to the State to face charges arising out of the 1984 Ennis shoot-out and was convicted on the 11th March, 1986, in the Special Criminal Court and sentenced to ten years imprisonment and penal servitude. Proceedings for habeas corpus commenced by him in 1987 challenging the validity of his detention by reason of challenges to the Ennis warrants and the composition of the Special Criminal Court which convicted him failed in the High Court and on appeal in the Supreme Court: see McGlinchey v. Governor of Portlaoise PrisonIR[1988] I.R. 671.

While continuing his sentence at Portlaoise Prison, the plaintiff commenced two actions by way of plenary summons in the High Court seeking solely declarations (a) that the Northern Ireland warrant of the 24th June, 1981, was invalid and that all subsequent proceedings against the plaintiff were illegal and invalid and that Part III of the Extradition Act, 1965, was therefore unconstitutional in failing to safeguard the plaintiff against such illegalities; and (b) that for a variety of other reasons Part III of the Extradition Act, 1965, was unconstitutional. The defendants pleaded in their defence that the issues to be decided in the plaintiff's two actions had already been determined in his special summons proceedings of 1982 and his habeas corpus proceedings of 1987 and were therefore res judicata and that in the second action the plaintiff had failed to showlocus standi.

Held by Costello J., in dismissing the plaintiff's claims in both actions, 1, that since the validity of the Northern Ireland warrant of 1981 was not raised in either of the 1982 or 1987 proceedings no estoppel in relation to that issue existed, nor had the defendants established that such issue could have been raised by the plaintiff but that he did not do so in those proceedings, and therefore the defendants' plea of res judicata failed.

2. That it was possible for the High Court to infer from a variety of circumstances that the plaintiff did have some reasonable apprehension that, following his release from Portlaoise prison, he would then be extradited back to Northern Ireland upon further warrants yet to be issued there, and this gave him sufficient standing to bring his first action.

Dicta in Cahill v. SuttonIR[1980] I.R. 269 considered.

3. That in all the circumstances a plea of lack of locus standi which would have succeeded in the second action was not to be allowed to defeat the plaintiff's claim, particularly where he could have shown sufficient standing by adding the reliefs sought in the second action to those of the first action and moreover he was not professionally represented.

4. That on construction of the evidence before the court, this established that the warrant of the 24th June, 1981, had not been issued in accordance with the laws of Northern Ireland and was invalid.

5. That even if it followed that the plaintiff's arrest and detention in 1982 on foot of the endorsement within the State of that warrant of 1981 was illegal, there were sufficient safeguards provided by Part III of the Act of 1965, including minimum time periods for the institution of habeas corpus proceedings and furthermore provision for the rebuttal by proper evidence of the statutory presumption in favour of the validity of any such warrant, and therefore the plaintiff's claim in his first action failed.

Gillespie v. Attorney GeneralIR [1976] I.R. 233 followed.

6. That furthermore additional safeguards by reference to the Attorney General were imported into Part III of the Act of 1965 by the Extradition (Amendment) Act, 1987.

7. That the plaintiff's submissions in his second action in relation to alleged shortcomings of Part III of the Act of 1965 having regard to the provisions of the Constitution relating to the Nation and the State and the status of its territorial jurisdiction were misconceived and therefore his second action failed.

The Criminal Law (Jurisdiction) Bill, 1975IR [1977] I.R. 129; McGimpsey v. IrelandIR[1988] I.R. 567and The State (Gilsenan) v. McMorrowIR[1978] I.R. 360 considered.

Cur. adv. vult.

Costello J.

The facts

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.

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...

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