Russell v Fanning

• Jurisdiction: Ireland
• Judge: FINLAY C.J. ,HEDERMAN J.
• Judgment Date: 19 January 1988
• Neutral Citation: 1988 WJSC-SC 643
• Court: Supreme Court
• Docket Number: [1984 No. 366 Sp.: 1986 No. 705 SS]
• Date: 19 January 1988

1988 WJSC-SC 643

THE SUPREME COURT

Finlay C. J.

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

93/86

RUSSELL v. FANNING

IN THE MATTER OF THE EXTRADITION ACT 1965

BETWEEN

ROBERT PETER RUSSELL

Plaintiff

and

STEPHEN FANNING

Defendant

AND

IN THE MATTER OF ARTICLE 40 OF THE CONSTITUTION

AND IN THE MATTER OF THE HABEAS CORPUS ACTS

AND IN THE MATTER OF THE EXTRADITION ACT 1965

BETWEEN

ROBERT PETER RUSSELL

Applicant

and

THE GOVERNOR OF PORTLAOISE PRISON, STEPHEN FANNING AND THEATTORNEY GENERAL

Respondents

AND

IN THE MATTER OF THE CONSTITUTION AND ARTICLE 40 THEREOF

AND IN THE MATTER OF THE HABEAS CORPUS ACT

AND IN THE MATTER OF THE EXTRADITION ACT 1965

AND IN THE MATTER OF ROBERT PETER RUSSELL AT PRESENT

DETAINED IN PORTLAOISE PRISON

AND IN THE MATTER OF AN APPLICATION FOR CERTIORARI

BETWEEN

THE STATE (AT THE PROSECUTION OF ROBERT PETERRUSSELL

Applicant

and

DISTRICT JUSTICE BALLAGH

Respondent

Citations:

EXTRADITION ACT 1965 S50

CONSTITUTION ART 40

QUINN V WREN 1985 IR 322, 1985 ILRM 410

LYNCH, STATE V COONEY 1982 IR 337, 1982 ILRM 190, 1983 ILRM 89

OFFENCES AGAINST THE STATE ACT 1939 S19

OFFENCES AGAINST THE STATE ACT 1939 S18

EXTRADITION ACT 1965 S54(1)

EXTRADITION ACT 1965 S55(1)

EXTRADITION ACT 1965 S43

MCMAHON V LEAHY 1985 ILRM 422 1984 IR 525

CONSTITUTION ART 15.6

CONSTITUTION ART 39

EXTRADITION ACT 1965 S50(2)(a)

CONSTITUTION ART 6

CONSTITUTION ART 3

SHANNON V FANNING 1985 ILRM 385

EMERGENCY POWERS BILL 1976, IN RE 1977 IR 159

CONSTITUTION ART 28.3.3

BURNS V AG UNREP FINLAY 04.02.74

BOURKE V AG 1972 IR 36, 107 ILTR 33

EXTRADITION ACT 1965 S44(2)

CHENG V GOVERNOR OF PENTONVILLE 1973 AC 931

MCDONALD V BORD NA gCON 1965 IR 217, 100 ILTR 89

EAST DONEGAL CO-OP V AG 1970 IR 317

CONSTITUTION ART 15.6

CONSTITUTION ART 39

R V GOVERNOR OF PENTONVILLE 1973 AC 931

CASTIONI, IN RE 1891 1 QB 149

SCHTRAKS, EX PARTE 1964 AC 556

QUINN, STATE V RYAN 1965 IR 70

MAXWELL INTERPRETATION OF STATUTES 12ED P28

ARMAH V GOVT OF GHANA 1968 AC 192

FUGITIVE OFFENDERS ACT 1881

CLAPHAM V NATIONAL ASSISTANCE BOARD 1961 2 QB 77

R V PATENTS APPEAL TRIBUNAL EX PARTE SWIFT 1962 2QB 647

HAMPSTEAD GARDEN SUBURB TRUST LTD, IN RE 1962 CH 806

MIN OF HOUSING & LOCAL GOVT V HARTNELL 1965 AC 1134

BARENTZ V WHITING 1965 1 WLR 433

ROLLEY V MURPHY 1964 2 QB 43

BROWN V DYERSON 1969 1 QB 45

KELLY IRISH CONSTITUTION 2ED P28

MURPHY V AG 1982 IR 241

CROTTY V AN TAOISEACH 1987 ILRM 400, 1987 IR 713

BUCKLEY & ORS (SINN FEIN) V AG 1950 IR 67

BOLAND V AN TAOISEACH 1974 IR 338, 109 ILTR 13

ADAPTATION OF ENACTMENTS ACT 1922 S6(3)

EXTRADITION ACT 1965 S41

RUSSELL V FANNING 1988 ILRM 333, 1988 IR 505

RUSSELL V BALLAGH UNREP BARR 19.01.87 1988/6/1680

LYNCH, STATE V COONEY 1982 IR 337, 1982 ILRM 190, 1983 ILRM 89

MCGLINCHEY V WREN 1982 IR 154, 1983 ILRM 169

CONSTITUTION ART 29.1

CONSTITUTION ART 29.2

Synopsis:

CRIMINAL LAW

Extradition

Exception - Political offence - Connection with political offence - Application of statutory exception - Circumstances inconsistent with provisions of the Constitution - Exception inapplicable to detainee - On 15/11/82 the plaintiff was convicted at a retrial in Northern Ireland of the attempted murder of a detective and was sentenced to 20 years imprisonment - On 25/9/83, while serving his sentence in Northern Ireland, the plaintiff and other prisoners escaped from the prison - In the course of the escape a prison officer was killed and several others were injured - On 26/5/84 the plaintiff was arrested in Dublin pursuant to 19 warrants which had been issued in Northern Ireland and which charged the plaintiff with murder and other offences arising from the escape - On 31/5/84 the District Court made orders directing that the plaintiff be delivered into the custody of the Northern Ireland authorities - On 14/2/86 the High Court (O'Hanlon J.) dismissed an application made by the plaintiff under s.50 of the Act of 1965 for his release from custody, and also dismissed separate proceedings brought by the plaintiff under Article 40 of the Constitution for an enquiry into the legality of his detention - The plaintiff appealed against those orders of the High Court - On 24/9/86 the plaintiff made further application to the High Court (Barr J.) pursuant to Article 40 of the Constitution and on 19/1/87 that application was dismissed; the plaintiff also appealed against that dismissal - The plaintiff contended that the offences recited in the warrants were either political offences or connected with a political offence, namely, the attempted murder of the detective - He submitted that the evidence adduced in the High court established that he would be subjected to inhuman treatment if delivered into the custody of the said authorities; and that he would not be brought before a magistrate as soon as practicable; and that the warrants, being signed by a peace commissioner, had not been issued by a judicial authority as required by ss.43, 54, 55, of the Act of 1965 - The plaintiff denied having participated in the attempted murder of the detective but admitted that at all times he was a member of the I.R.A. and that the I.R.A. had made the attack on the detective - The plaintiff stated that the aims and objectives of the I.R.A., which he shared, were the reintegration of the national territory and the expulsion of British rule from Northern Ireland by force; and that one of his purposes in escaping from the prison was to resume, as a member of the I.R.A., his campaign to expel the British authorities from Northern Ireland by force - He stated that, once such reintegration had been achieved, it was his desire that a normal democratic process operating under the rule of law in accordance with the Constitution should apply to the entire island of Ireland - Held, in disallowing the appeals, that the Act of 1965 was enacted after the Constitution had come into force and that, accordingly, there was a presumption that the provisions of that Act were not intended by the Oireachtas to offend against any express or implied provision of the Constitution - Held that the term "political offence" when used in the Act of 1965, could not be construed in a manner which granted immunity from extradition to a person charged with an offence the purpose of which is to subvert the Constitution or to usurp the functions of the organs of State established by the Constitution: ~Quinn v. Wrenn~ [1985] I.R. 322; [1985] ILRM 410 applied - Held that the objectives of the attack on the detective and of the plaintiff's escape from prison, as appeared from the affidavits filed on behalf of the plaintiff, were the reintegration of the national territory by force of arms, and that such objectives conflicted with the provisions of Article 6 of the Constitution which state that all powers of government are exercisable only by or on the authority of the organs of State established by the Constitution - Held that to attempt to reintegrate the national territory without the authority of the organs of State established by the Constitution is to subvert the Constitution and to usurp the function of government - Held that the trial judge had acted correctly in refusing to grant the relief sought on the ground that the plaintiff would be subjected to inhuman treatment if extradited pursuant to the orders of the District Court, or on the ground that the plaintiff would not be brought before a magistrate as soon as practicable - Held that the warrants appeared to have been issued by a judicial authority within the meaning of the Act of 1965 - Extradition Act, 1965, ss.43, 50, 54, 55 - Constitution of Ireland, 1937, Article 6 - (93/86 - Supreme Court - 19/1/88) - [1988] I.R. 505 - [1988] ILRM 333

|Russell v. Fanning|

|Russell v. Fanning|

WORDS AND PHRASES

"Judicial authority"

Extradition - Foreign warrant - Issue - Peace commissioner - Recognition - A warrant signed by a peace commissioner in Northern Ireland appeared to have been issued by a judicial authority - ~See~ Criminal Law, extradition - (93/86 - Supreme Court - 19/1/88) [1988] ILRM 333 1989 IR 505

|Russell v. Fanning|

1 JUDGMENT delivered on the 19th January1988by FINLAY C.J. [HENCHY GRIFFIN CON]

2 Robert Peter Russell (the Appellant) was, on the 29th May 1981, convicted of the attempted murder of Detective Superintendent Charles Ernest Drew of the Royal Ulster Constabulory, on or about the 17th May 1978 in Belfast, and of certain other associated crimes arising out of the same incident and was sentenced to twenty years' imprisonment.

3 Against that conviction and sentence the Appellant appealed, and on the 19th May 1982 the Court of Appeal set aside the conviction and directed a new trial. As a consequence of that re-trial the Appellant was on the 15th November 1982, in the Crown Court in Northern Ireland, again convicted of the said offences and a sentence of twenty years' imprisonment was imposed upon him.

4 He was detained to serve that sentence in the Prison at Maze, Hillshorough, Co. Down, and on the 25th day of September 1983 in company with a number of other prisoners he escaped from that prison.

5 It would appear that the escape was made with significant violence and one member of the prison staff was killed and a number of others were injured in the course of that escape.

6 A total of nineteen Warrants were issued in Northern Ireland charging the Appellant with murder and with other offences all arising out of the escape from the Maze Prison. The Appellant was arrested on the 26th May 1984 in Dublin and brought before the District Court where, on the 31st May 1984, Orders were made in each of the nineteen cases for his delivery to Northern Ireland on foot of the Warrants.

7 On the 13th June 1984 the Appellant instituted proceedings by Special Summons, pursuant to the provisions of Section 50 of the Extradition Act 1965, claiming an Order pursuant to that Section directing his release. In short, the basis of the...