McMahon v Leahy

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1985
• Date: 01 January 1985
• Docket Number: [1983 No. 186 Sp.]

McMahon v. Leahy

Philip James McMahon

Plaintiff

and

David Leahy

Defendant

[1983 No. 186 Sp.]

High Court

Supreme Court

Criminal law - Extradition - Exception - Political offence - Equality before the law - Group escape from foreign custody - Escapers entering the State - Extradition of four escapers sought - Successful defences based on political nature of escape - Extraditions refused - Extradition of fifth escaper sought - Defence based on allegation of political nature of escape - The State inhibited from controverting claim of fifth escaper - Extradition Act, 1965 (No. 17), ss. 44, 50 - Constitution of Ireland, 1937, Article 40.

The plaintiff was found guilty in Northern Ireland on counts of robbery and the unlawful possession of a firearm; he was sentenced to eight years imprisonment. While serving his sentence, the plaintiff made an unsuccessful attempt to escape from prison. On the 10th March, 1975, the plaintiff was brought in custody to a courthouse in Northern Ireland to answer a charge that he had attempted to escape from prison; he escaped from the courthouse with four other prisoners and, having crossed the border, he came to reside within the State. On the 4th April, 1975, the four co-escapers were arrested within the State on the strength of warrants issued in Northern Ireland which recited their escapes from the courthouse, and proceedings were instituted under the Extradition Act, 1965, for orders directing them to be delivered into the custody of the Northern Ireland authorities. Each of those four escapers claimed and obtained in the High Court an order directing his release under s. 50 of the Act of 1965 on the ground that his escape from the courthouse in Northern Ireland was a political offence or an offence connected with a political offence. The defendants in those four High Court actions were represented by counsel who were instructed by the Chief State Solicitor; in two of those actions the claim of the escaper to exemption from extradition on the ground of the political nature of his escape was not opposed and, in the other two actions, that claim of the escaper, if opposed, was opposed unsuccessfully.

On the 4th February, 1983, a warrant (which recited the plaintiff's escape from the courthouse on the 10th March, 1975) was issued in Northern Ireland for the arrest of the plaintiff and it was endorsed by the defendant for execution within the State. On the 31st March, 1983, the plaintiff was arrested in the State and on the same date the District Court made an order directing that he be delivered into the custody of the Northern Ireland authorities. The plaintiff issued a summons in the High Court and claimed an order directing his release from custody pursuant to s. 50 of the Act of 1965; in his affidavit he averred that the offences for which he was sentenced to eight years imprisonment had been committed by him at the command of an unlawful organisation in order to raise funds in furtherance of its aims, which included the overthrow of the system of government in Northern Ireland, and he averred that his escape from the courthouse was a political offence or an offence connected with a political offence. At the trial in the High Court of the issues raised by the plaintiff's summons, there was no firm evidence of the nature or the results of the proceedings instituted under s. 50 of the Act of 1965 by the plaintiff's four co-escapers.

Held by Keane J., in dismissing the plaintiff's claim, 1, that there was an onus on the plaintiff to establish that the offence to which the warrant of the 4th February, 1983, related was a political offence or an offence connected with a political offence, and that he had failed to discharge that onus.

Bourke v. The Attorney General [1972] I.R. 36; Hanlon v. Fleming[1981] I.R. 489 andMcGlinchey v. Wren[1982] I.R. 154 considered.

The plaintiff appealed against the dismissal of his claim and, at the hearing of his appeal, he obtained leave from the Supreme Court to adduce further evidence of the nature and the results of the proceedings that had been instituted by his four co-escapers.

Held by the Supreme Court (O'Higgins C.J., Henchy, Griffin, Hederman and McCarthy JJ.), in allowing the appeal after considering such further evidence, 1, that the circumstances of the plaintiff's escape from the courthouse in Northern Ireland did not differ materially from the escapes of the other four escapers from that courthouse.

2. That the declaration that all citizens shall, as human persons, be held equal before the law (contained in Article 40, s. 1, of the Constitution) was a relevant factor in determining the plaintiff's appeal in view of the fact that the Chief State Solicitor had either acquiesced in, or had opposed unsuccessfully, the grant of an order of release under s. 50, sub-s. 1, of the Act of 1965 to each of the other four escapers on the ground that his escape from the courthouse was a political offence or an offence connected with a political offence.

3. That, in the special circumstances, the Court would not permit the defendant (who represented the State) to controvert the plaintiff's claim to an order for release under s. 50 of the Act of 1965.

Cases mentioned in this report__

¹ Bourke v. The Attorney General [1972] I.R. 36.

² McGlinchey v. Wren [1982] I.R. 154.

³ In re Castioni [1891] 1 Q.B. 149.

⁴ Burns v. The Attorney General (High Court: 4th February, 1974).

⁵ R. v. Governor of Brixton Prison; Ex p. Schtraks [1964] A.C. 556.

⁶ R. v. Governor of Brixton Prison; Ex p. Kolczynski [1955] 1 Q.B. 540.

⁷ R. v. Governor of Pentonville Prison; Ex p. Cheng [1973] A.C. 931.

⁸ Hanlon v. Fleming [1981] I.R. 489.

⁹ O'Boyle v. The Attorney General [1929] I.R. 558.

¹⁰ In re Meunier [1894] 2 Q.B. 415.

¹¹ R. v. Pentonville Prison Governor; Ex p. Budlong [1980] 1 W.L.R. 1110.

¹² State (Quinn) v. Ryan [1965] I.R. 70.

¹² State (Duggan) v. Tapley [1952] I.R. 62.

¹⁴ State (Magee) v. O'Rourke [1971] I.R. 205.

¹⁵ Lynagh v. Mackin [1970] I.R. 180.

¹⁶ Reichel v. Magrath (1889) 14 App. Cas. 665.

¹⁷ R. v. Humphrys [1977] A.C. 1.

¹⁸ Corporation of Dublin v. Flynn [1980] I.R. 357.

¹⁹ R. v. Connelly [1964] A.C. 1254.

²⁰ R. v. Prison Governor; Ex p. Littlejohn [1975] 1 W.L.R. 893.

Special Summons.

On the 14th April, 1983, the plaintiff issued a summons in the High Court and therein claimed (inter alia) an order pursuant to s. 50 of the Extradition Act, 1965, directing his release from the custody of the Garda Síochána. The plaintiff had been arrested in the State on the 31st March, 1983, on the authority of a warrant dated the 4th February, 1983, and signed by a justice of the peace in Northern Ireland. The warrant recited a complaint that the plaintiff on the 10th March, 1975, at Newry, County Down, in the County Court Division of South Down, Northern Ireland, being then a prisoner in lawful custody in a cell at the Courthouse, Trevor Hill, awaiting trial on a criminal charge, escaped from custody contrary to common law. On the 8th March, 1983, the warrant was endorsed by the defendant, an Assistant Commissioner of the Garda Síochána, for execution within the State. On the 31st March, 1983, the District Court ordered that the plaintiff be delivered into the custody of a member of the Royal Ulster Constabulary for conveyance to the Petty Sessions District of Newry and Mourne in Northern Ireland.

Section 50, sub-ss. 1 and 2, in Part III of the Act of 1965 provides__

"(1). A person arrested under this Part shall be released if the High Court or the Minister so directs in accordance with this section.

(2). A direction under this section 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

  • (ii) an offence under military law which is not an offence under ordinary criminal law, or

  • (iii) a revenue offence, or

• (b) there are substantial reasons for believing that the person named or described in the warrant will, if removed from the State under this Part, be prosecuted or detained for a political offence or an offence connected with a political offence or an offence under military law which is not an offence under ordinary criminal law, or

• (c) The offence specified in the warrant does not correspond with an offence under the law of the State which is an indictable offence or is punishable on summary conviction by imprisonment for a maximum period of at least six months."

Article 40, s. 1, of the Constitution of Ireland, 1937, provides__ "All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function."

Four other prisoners escaped with the plaintiff on the same occasion. Each of them sought in the High Court, and obtained, orders directing their release from custody pursuant to s. 50, sub-s. 2(a)(i). of the Act of 1965. Each of them, in his grounding affidavit, stated that he was a citizen of Ireland. Two of those orders (1975 Nos. 187 and 188 Sp.) were made on the 19th December, 1975, and the remaining two orders (1975 Nos. 189 and 190 Sp.) were made on the 14th January, 1976.

The plaintiff's summons was heard by the High Court (Keane J.) on the 9th May and the 14th July, 1983.

The plaintiff appealed to the Supreme Court from the judgment and order of the High Court. The appeal was heard on the 9th, 10th, 14th and 23rd February, 1984. The court allowed the plaintiff to adduce further evidence of the proceedings instituted by Eugene Martin Fanning, Gerald Fitzgerald, Hugh Clarke and Thomas Joseph McCarry in the year 1975 for orders of release under s. 50, sub-s. 1, of the Extradition Act, 1965.

Cur. adv. vult.

Keane J.

On the 31st March last, the District Court made an order under s. 47 of...