McKee v Culligan

• Jurisdiction: Ireland
• Judgment Date: 01 January 1992
• Date: 01 January 1992
• Docket Number: [1989 No. 646 Sp.; 1990 No. 104 J.R.]
• Court: Supreme Court

High Court

Supreme Court

[1989 No. 646 Sp.; 1990 No. 104 J.R.]

Defendant [1989 No. 732 Sp.]

[1989 No. 661 Sp.; 1990 No. 63 J.R.]

Sloan v. Culligan; McKee v. Culligan; Magee v. Culligan

Anthony Sloan

Plaintiff

and

Patrick Joseph Culligan, Defendant

Sloan v. Culligan; McKee v. Culligan; Magee v. Culligan

Michael Anthony McKee

Plaintiff

and

Patrick Joseph Culligan

Sloan v. Culligan; McKee v. Culligan; Magee v. Culligan

Paul Magee

Plaintiff

and

Patrick Joseph Culligan, Thomas Alphonsus Fitzpatrick and The Attorney General

Defendants

Cases mentioned in this report:—

Blodgit v. Holden 275 U.S. 142 (1927).

Bourke v. Attorney General [1972] I.R. 36; (1970) 107 I.L.T.R. 33.

Buchanan (James) & Co. Ltd. v. Babco Forwarding & Shipping Ltd.[1978] A.C. 141; [1979] 3 W.L.R. 907; [1977] 3 All E.R. 1048; [1978] 1 Lloyd's Rep. 119; (1977) 121 S.J. 811; [1978] 1 C.M.L.R. 156.

Clarke v. McMahon [1990] 1 I.R. 228; [1990] I.L.R.M. 802.

Dolan v. Irish Land Commission [1930] I.R. 235.

Doyle v. An Taoiseach [1986] I.L.R.M. 693.

Dublin Heating Co. v. Hefferon [1992] I.L.R.M. 51.

Eccles v. Ireland [1985] I.R. 545; [1986] I.L.R.M. 343.

Ellis v. O'Dea (No. 2) [1991] 1 I.R. 251; [1991] I.L.R.M. 346.

Finucane v. McMahon [1990] 1 I.R. 165; [1990] I.L.R.M. 550.

Hamilton v. Hamilton and Dunne [1982] I.R. 466; [1982] I.L.R.M. 290.

Harte v. Fanning [1988] I.L.R.M. 70.

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

McMahon v. Leahy [1984] I.R. 525; [1985] I.L.R.M. 422.

Murphy v. Attorney General [1982] I.R. 241.

The People (D.P.P.) v. Campbell (1983) 2 Frewen 131.

Quinn v. Wren [1985] I.R. 322; [1985] I.L.R.M. 410.

Racke v. Hauptzollamt Mainz (Case 98/78) [1979] E.C.R. 69.

Reg. v. Governor of Brixton Prison, ex parte Armah [1968] A.C. 192; [1966] 3 W.L.R. 828; [1966] 3 All E.R. 177.

Russell v. Fanning [1988] I.R. 505; [1988] I.L.R.M. 333.

Shannon v. Fanning [1984] I.R. 569; [1985] I.L.R.M. 385.

The State (Duggan) v. Tapley [1952] I.R. 62; (1950) 85 I.L.T.R. 22.

Tormey v. Ireland [1985] I.R. 289; [1985] I.L.R.M. 375.

United Kingdom v. Doherty 599 Fed. Supp. 270 (1984).

Untermeyr v. Anderson 276 U.S. 440 (1927).

U.S. v. Darusmont and Others 449 U.S. 292 (1980).

U.S. v. Security Industrial Bank 459 U.S. 70 (1982).

Extradition - Political offence - Exemption excluded - Offence deemed political in 1980 - Escape from prison in 1981 - Subsequent prosecution in State - Imprison- ment - Whether extraditable under new statute limiting political exemption - Statute - Retrospectivity - Alleged criminalisation - Lapse of time - Estoppel - "Exceptional circumstances"- Whether delivery up "unjust, oppressive or invidious" - Elements - Automatic firearm "if such use endangers persons" - "Serious false imprisonment" - Extradition Act, 1965 (No. 17), s. 50 - Extradition (European Convention on the Suppression of Terrorism) Act, 1987 (No. 1), ss. 1 and 3 - Extradition (Amendment) Act, 1987 (No. 25), s. 2 (b) - Constitution of Ireland, 1937, Article 15, s. 5 and Article 40, s. 3.

District Court - Judges - Temporary District Justice - Appointment "for such period as the Executive Council shall think proper" - One year temporary period - Tenure - Independence - Executive power - Abuse - Estoppel - Appointment provision amended by Act of 1961 - Presumption of constitutionality - Courts of Justice Act, 1936 (No. 48), s. 51 - Courts of Justice (District Court) Act, 1946 (No. 21), ss. 2 and 20 - Courts (Supplemental Provisions) Act, 1961, (No. 39), ss. 48 - Constitution of Ireland, 1937, Articles 35 and 36.

Special Summons and Judicial Review.

The facts are summarised in the headnote and fully set out in the judgment of Lynch J., post. By order of the High Court (Blayney J.) made on the 12th January, 1990, all the special summons and judicial review proceedings were consolidated. The case of Anthony Sloan came on for hearing before the High Court (Lynch J.) on the 9th, 10th and 11th October, 1990; the case of Michael Anthony McKee and Paul Magee came on for hearing on the 4th, 5th, 6th, 7th and 11th December, 1990.

The defendants appealed to the Supreme Court from the judgments and orders in the cases of Sloan and McKee, who in turn cross-appealed. Magee also appealed to the Supreme Court but failed to appear at the opening of the appeal. The Court after hearing evidence from a Garda officer concerning his bail conditions held him in breach of his bail and issued a bench warrant, but held that he was not in breach of the conditions for the exercise of his right of appeal and indicated that accordingly it would hear his appeal in his absence.

Section 50, sub-s. 2 of the Extradition Act, 1965, as amended, provides:—

"A direction under this section [for the arrested person's release] may be given by the High Court where the Court is of opinion that:—

(a) the offence to which the warrant relates is —

• (i) a political offence or an offence connected with a political offence, or . . .

(bbb) by reason of the lapse of time since the commission of the offence specified in the warrant or the conviction of the person named or described therein of that offence and other exceptional circumstances, it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under section 47, . . ."

By s. 3 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, no offence specified in sub-s. 3 thereof shall be deemed to be a political offence or an offence connected with a political offence. Sub-section 3 provides:—

• (a) This section applies to Áá. . .

  • (iv) an offence involving kidnapping, the taking of a hostage or serious false imprisonment,

  • (v) an offence involving the use of an explosive or an automatic firearm, if such use endangers persons, and

  • (vi) any offence of attempting to commit any of the foregoing offences."

Sub-section 4 provides:—

"For the purposes of subsection (3) (a): . . . (b) in sub-paragraph (iv) thereof —

"serious false imprisonment" means any false imprisonment involving danger, or prolonged or substantial hardship or inconvenience, for the person detained, . . ."

Section 1, sub-s. 4 provided:—

"This Act applies, except where otherwise provided, in relation to an offence whether committed or alleged to have been committed before or after the passing of this Act."

Section 51 of the Courts of Justice Act, 1936, provided that whenever necessary "to increase temporarily the number of justices of the District Court, one or more persons who are practising barristers or solicitors of six years' standing at least at the day of appointment may be appointed to act as a justice or justices of the District Court for such period as the Executive Council shall think proper in respect of each such person."

Sections 2 and 20 of the Courts of Justice (District Court) Act, 1946, provide that justices (but not temporary justices) "shall hold office by the same tenure as the judges of the Supreme Court and the High Court."

Section 48, sub-s. 8 of the Courts (Supplemental Provisions) Act, 1961, amended the practice requirement for the appointment of temporary District Justices by substituting "ten years' standing" for "six years' standing".

Article 35, s. 2 of the Constitution of Ireland, 1937, provides:—

"All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law."

Article 36 provides:—

"Subject to the foregoing provisions of this Constitution relating to the Courts, the following matters shall be regulated in accordance with law, that is to say:—

• i. The number of judges of the Supreme Court, and of the High Court, the remuneration, age of retirement and pensions of such judges,

• ii. The number of the judges of all other Courts, and their terms of appointment, . . ."

The plaintiffs, S., McK. and M. escaped from Crumlin Road Prison, Belfast, two days prior to their convictions for possessing firearms with intent to endanger fife and were sentenced in their absence to twenty years imprisonment. In addition S. was convicted and sentenced for unlawful imprisonment (five years imprisonment) and M. for murder and attempted murder (life imprisonment) respectively. Within six months all three were apprehended in the State and prosecuted and convicted for escaping from lawful custody in Northern Ireland under s. 3 of the Criminal Law (Jurisdiction) Act, 1976. In August and September, 1989, upon the approach of the completion of their prison sentences in Portlaoise Prison, warrants for their arrest in respect of the convictions and sentences imposed on them in Northern Ireland were issued and backed for execution in the State by the defendant and in due course extradition orders were made in the District Court.

By special summonses in the High Court all three plaintiffs sought their release under s. 50 of the Extradition Act, 1965, as amended, relying upon its political offence exemption and argued that the defendant was prevented from relying upon die Extra- dition (European Convention on the Suppression of Terrorism) Act, 1987, to remove from offences deemed political in 1980 their right or entitlement not to be extradited therefor and that any such procedure would infringe Article 15, s. 5 of the Constitution. S. and M. also submitted that there was a real danger that if extradited they would be subjected to ill-treatment. In further judicial review proceedings M. sought certiorari of the order for his extradition made by the second respondent, a temporary District Justice, and sought a declaration that s. 51 of the Courts of Justice Act, 1936, was inconsistent with the Constitution and void and of no effect.

Held by Lynch J., in ordering the release of McK., but refusing the release of S. and M., 1, that prior to the coming into force of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, the offences of which the...