Quinlivan v Conroy

• Jurisdiction: Ireland
• Judge: O'Flaherty J.
• Judgment Date: 01 January 1999
• Neutral Citation: [1998] IESC 31
• Docket Number: [1995,(78/98)
• Court: Supreme Court
• Date: 01 January 1999

[1998] IESC 31

THE SUPREME COURT

Hamilton C.J.,

O'Flaherty J.,

Murphy J.,

Lynch J.,

Barron J.,

(78/98)

QUINLIVAN v. CONROY & BREENAN

AN CH ÚIRT UACHTARACH

IN THE MATTER OF THE EXTRADITION ACTS, 1965 TO 1994

BETWEEN

NESSAN QUINLIVAN

Appellant/Applicant

.v.

NOEL CONROY AND HUGH SREENAN

Respondents/Respondent

Abstract:

Criminal law - Extradition — Discovery — Appellant escaped from custody in England — Extradition sought on four charges — Appellant claimed offences political — Appellant claimed that escape encouraged and assisted by English authorities — Appellant claimed that assistance defeats any correspondence with an Irish offence of escape from custody — Appellant sought discovery of documents relating to escape — Whether adverse publicity would render trial unfair — Whether documents in the power of the respondents — Whether title to proceedings should be amended — Whether documents relevant to proceedings — Extradition Act 1965 (No 17), section 50.

Any adverse publicity there may have been in relation to the appellant's escape from custody happened so long ago as to be no longer a threat to the fairness of his trial. In light of the fact that his essential assertion, that his escape was facilitated by the members of the English security forces, was not denied in an affidavit filed on behalf of the respondents by a Detective Constable of the Metropolitan Police the appellant had failed to show how the documents sought were relevant to any live issue in the extradition application before the High Court. The Supreme Court so held in dismissing the appeal.

1 29th day of October, 1998, by O'Flaherty J. [NEM DISS]

2 This is an appeal brought by Nessan Quinlivan from the judgment and order of the High Court (Kinlen J.) of 3rd April, 1998, refusing him an order for discovery against the respondents, who are both assistant commissioners in the garda siochana.

3 The return of the appellant to England to face charges is sought pursuant to four warrants issued by the relevant judicial authorities in England and endorsed for execution in the State by the respondents. His extradition is being sought on the following charges, viz:-

4 1. Conspiracy to murder one Sir Charles Tidbury and others;

5 2. Conspiracy to cause explosions likely to endanger life or seriously injure property;

6 3. Escape from lawful custody in Brixton Prison, London;

7 4. Unlawfully and maliciously wounding Malcolm Hugh David Kemp with intent to do him grievous bodily harm on 7th July, 1991 at Brixton Hill. London, contrary to s. 18 of the Offences Against the Person Act, 1861.

8 On the 11th September, 1995, the President of the District Court. Judge Smithwick, made orders for the delivery of the appellant into the custody of a member of the City of London police force for conveyance to London on foot of the said four warrants.

9 The appellant applied to the High Court and claims that he should be released pursuant to s. 50 of the Extradition Act, 1965.

10 He has been on bail since 11th September, 1995.

11 Mr. Quinlivan's essential claim in the main proceedings is that the offences alleged are political offences, or offences connected with political offences and, as regards the charge of escaping from lawful custody. ??? asserted on his behalf that there is a lack of a corresponding offences ??? jurisdiction on account of agent provocateur: he asserts that his escape ??? facilitated by a prison officer and that defeats any correspondence there could be with an Irish offence of escape from custody since, he submits, the existence of an agent provocateur would inevitably lead to an acquittal in this jurisdiction.

12 He also has a complaint, in separate proceedings, that because of the adverse publicity that surrounded his arrest in October, 1990, he would not get a fair trial in England. Seemingly, the Attorney General of the United Kingdom issued a directive to newspapers and other media outlets to be careful as to what they would publish in relation to Mr. Quinlivan and he seeks discovery of that correspondence. To dispose of this point immediately, such adverse publicity as there may have been is now so long ago as not likely to pose any threat to the fairness of his trial, and so I can pass from it.

13 In the course of his affidavit, the appellant avers as follows:-

"I say and believe that the conspiracy charges in question arise out of a campaign of violence which was conducted by the Irish Republican Army (hereinafter the "IRA") in England in 1990 during which, inter alia, Mr. Ian Gow M.P. was murdered, a former Governor of Gibraltar was shot and wounded and one soldier was shot dead and two soldiers wounded at Lichfield railway station. I further say and believe that in the course of their investigations into IRA activities in England, the police authorities there had earlier found a list of intended IRA targets, which included Sir Charles Tidbury, the person named as the intended victim of the alleged conspiracy to murder which forms the basis of the first charge in respect of which my extradition is being sought. I say and believe that the said Sir Charles Tidbury was a prominent businessman in England and former chairman of whitbread, the brewers, which under his chairmanship was allegedly a major contributor to the funds of the British Conservative Party."

14 Then he makes the case that he and another prisoner, Pearse McCauley, were approached by a prison officer at Brixton Prison, Prison Officer Marshall, and that he, having gone to considerable lengths to gain the confidence of...