McNally v O'Toole

• Jurisdiction: Ireland
• Judge: Finnegan J.
• Judgment Date: 14 November 2000
• Neutral Citation: [2000] IEHC 143
• Court: High Court
• Date: 14 November 2000

[2000] IEHC 143

THE HIGH COURT

No. 273sp/1999

MCNALLY v. O'TOOLE

IN THE MATTER OF SECTION 50 OF THE EXTRADITION ACT 1965 / 1994

BETWEEN

JOHN McNALLY

PLAINTIFF

AND

PATRICK O'TOOLE

DEFENDANT

Citations

EXTRADITION ACT 1965 S50

EXTRADITION (EUROPEAN CONVENTION ON THE SUPPRESSION OF TERRORISM) ACT 1987 S9

EXTRADITION (AMDT) ACT 1987 S2(1)(b)

EXTRADITION ACT 1965 S50(2)(bbb)

KWOK MING WAN V CONROY 1998 3 IR 527

LANGAN V O'DEA UNREP KELLY 10.10.1997 1998/23/9008

BURKE V CONROY UNREP MCCRACKEN 5.3.1999 1999/3/621

KAKIS V REPUBLIC OF CYPRUS 1978 2 AER 634

Synopsis:

Extradition

Extradition; lapse of time; exceptional circumstances; plaintiff arrested on foot of warrant issued in Northern Ireland in 1998; order for rendition of applicant made by District Court; plaintiff seeking order directing his release on ground that it would be unjust, oppressive or invidious to deliver him up by reason of the lapse of time since the commission of the offence specified in the warrant and other exceptional circumstances; offence the subject matter of the warrant had been committed in 1989; plaintiff arrested on date of offence and while on bail had fled Northern Ireland; plaintiff now residing in the Republic of Ireland; RUC became aware of fact that plaintiff was living in this jurisdiction in 1996; whether failure of RUC to make inquiries through the Gardaí between 1989 and 1996 to ascertain plaintiff's whereabouts was unreasonable; whether in the circumstances of the case the lapse of time was such as to encourage in the plaintiff a reasonable belief that his extradition would not be sought; whether lapse of time in seeking plaintiff's extradition by RUC up to 1996 was due to his failing to answer his bail and thereafter fleeing Northern Ireland rather than any default on the part of the Northern Ireland authority; whether lapse of time in obtaining warrant was so great as to render plaintiff's extradition unjust, oppressive or invidious; whether there were "other exceptional circumstances" within the meaning of s.50(2)(bbb), Extradition Act, 1965.

Held: Relief refused.

McNally v. O'Toole - High Court: Finnegan J. - 14/11/2000

The plaintiff had been arrested in 1998 on foot of warrants issued in Northern Ireland for extradition to that jurisdiction. The plaintiff had allegedly committed an offence in 1989. The plaintiff issued proceedings pursuant to section 50 of the Extradition Act, 1965 seeking to prevent the extradition on the grounds that it would be unjust, oppressive or invidious to order the extradition due to the lapse of time involved. Finnegan J attributed much of the delay involved to the plaintiff’s failure to answer bail. The factors involved were not exceptional and the relief sought by the plaintiff would be refused.

1 JUDGMENT delivered the 14th November, 2000 by Finnegan J.

2 The Plaintiff was arrested on the 30th April, 1998 on foot of a warrant issued by Her Majesty's Crown Court in Northern Ireland on 25th March, 1998. He was taken before the District Court and remanded until an application was made for his rendition on the 20th May. 1999. An Order for the rendition of the Applicant was duly made by the District Court on the 17th June, 1999. On the 17th June,1999 the Plaintiff commenced these proceedings by way of Special Summons the relief sought being an Order directing his release pursuant to the terms of Section 50 of the Extradition Act, 1965as amended. The Extradition Act 1965as amended by the Extradition (European Convention on the Suppression of Terrorism) Act, 1987Section 9 and the Extradition (Amendment) Act 1987Section 2(1)(b) provides as follows;-

3 2 "(1) A person arrested under this part shall be released if the High Court or the Minister so directs in accordance with this Section.

4 (2) A direction under this section may be given by the High Court where the Court is of opinion that-

5 (a) the offence to which the warrant relates is-2

6 (i) A political offence or an offence connected with a political offence, or

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

8 i A revenue offence

9 ii (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

10 iii (bb) There are substantial grounds for believing that the warrant was in fact issued for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinion or that his position would be prejudiced for any of these reasons. or

11 iv (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, or

12 (c) the offence specified in the warrant does not correspond with any 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."

13 The sole ground relied upon by the Plaintiff before me is that specified in Section 50(2)(bbb) namely that it would be unjust, oppressive or invidious to deliver up the Plaintiff by reason or the lapse of time since the commission of the offence specified in the warrant and other exceptional circumstances and having regard to all the circumstances.

14 The offence the subject matter of the warrant was committed on 6th January. 1989 at University Street Belfast when a robbery was carried out by three persons one of whom carried a sawn-off shotgun. The Plaintiff was arrested on the same day. He made a statement admitting his involvement. Having been admitted to bail he failed to attend his arraignment on 8th September, 1989.

15 In his Affidavit sworn on 14th October, 1999 grounding his application the Plaintiff deposes to the evidence given in the District Court as follows;-

"I further say that the evidence disclosed that your deponent had left Northern Ireland and had come to live in the Republic of Ireland."

16 Detective Chief Inspector Robert Lee of the Royal Ulster Constabulary in his Affidavit sworn on 27th March, 2000 on this application disputes this in the following terms-

"I say that I dispute that the evidence disclosed that the Plaintiff had left Northern Ireland and had immediately thereafter come to live in the Republic of Ireland. I say that the evidence offered by me was to the effect that Mr. McNally left Northern Ireland and failed to attend his arraignment on the 8th day of September 1989 and that so far as I was aware Mr. McNally had gone to Europe. I say that further Mr. McNally stated in his evidence to the District Court that he went to Europe."

17 The Plaintiff did not file a further Affidavit in reply. The Plaintiff was cross-examined on his Affidavit and accepted that in the District Court he had said that he had gone to Europe but stated that inso saying he had been mistaken.

18 Director Chief Inspector Lee was cross-examined and in evidence said that the Royal Ulster Constabulary had to reason prior to October 1996 to believe that the Plaintiff was in this jurisdiction. He agreed, however, that it was reasonable to...