Schmidt v Secretary of State for the Home Department

JurisdictionIreland
JudgeLynch J.
Judgment Date24 April 1997
Neutral Citation1997 WJSC-SC 3597
CourtSupreme Court
Docket NumberNo. 28/1995,[S.C. No. 28 of 1995]
Date24 April 1997

1997 WJSC-SC 3597

THE SUPREME COURT

Hamilton C.J.

O'Flaherty J.

Barrington J.

Keane J.

Lynch J.

No. 28/1995
SCHMIDT v. HOME SECRETARY OF THE GOVERNMENT OF THE UNITED KINGDOM

BETWEEN

NORBERT SCHMIDT
Plaintiff/Appellant

AND

THE HOME SECRETARY OF THE GOVERNMENT OF THE UNITEDKINGDOM, THE COMMISSIONER OF THE METROPOLITAN POLICE AND DAVIDJONES
Defendants/Respondents

Citations:

RSC O.11 r1(f)

RSC O.12 r26

RSC O.11A

JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988

RSC O.11

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.4.1

TREATY OF ROME ART 48

TREATY OF ROME ART 52

TREATY OF ROME ART 53

TREATY OF ROME ART 54

EUROPEAN CONVENTION ON EXTRADITION

EXTRADITION ACT 1965

EXTRADITION ACT 1965 (PART II) (NO 23) ORDER 1989 SI 9/1989

POLICE ACT 1964 S19 (UK)

GOVERNMENT OF CANADA V EMPLOYMENT APPEALS TRIBUNAL (EAT) & BURKE 1992 2 IR 484, 1992 ILRM 325

MCELHINNEY V WILLIAMS & SECRETARY OF STATE FOR NORTHERN IRELAND 1994 2 ILRM 115

MCELHINNEY V WILLIAMS & SECRETARY OF STATE FOR NORTHERN IRELAND UNREP SUPREME 15.12.95 1995/19/4966

SAORSTAT & CONTINENTAL STEAMSHIP CO LTD V DE LAS MORENAS 1945 IR 291

R V COMMISSIONER OF POLICE OF METROPOLIS EX PARTE BLACKBURN 1968 1 AER 763

POLICE ACT 1964 S19(1) (UK)

PLAYA LARGA V I CONGRESO DEL PARTIDO 1983 1 AC 244

Synopsis:

Practice & Procedure

Application for service outside jurisdiction set aside on grounds of sovereign immunity from suit; whether police constable acting in course of duty Held: Appeal dismissed; service not permitted (Supreme Court: Hamilton CJ, O'Flaherty, Barrington, Keane, Lynch JJ 24/04/1997)

Schmidt v. Home Secretary of United Kingdom & ors.

[1997] 2 IR 121

1

JUDGMENT of Lynch J.delivered the 24th day of April, 1997 [NEMDISS]

2

This is an appeal brought by the Plaintiff Norbert Schmidt against an order of the High Court (Geoghegan J.) made on the 22nd of November 1994 setting aside an earlier order of the High Court (Carney J.) made on an ex parte application on behalf of the Plaintiff on the 28th of May 1993 giving liberty to the Plaintiff pursuant to Order 11 Rule 1(f) (of the Rules of the Superior Courtsto serve notice of the plenary summons herein together with a copy of the said order on the second named Defendant (the Commissioner of the Metropolitan Police) and on the third named Defendant (David Jones) at their respective addresses or elsewhere in England.

3

The Order of the 22nd of November 1994 was made pursuant to a notice of motion which sought inter alia:-

"(a) An order pursuant to Order 12 Rule 26 of the Rules of the Superior Courts setting aside the service of the Plenary Summons upon the second and third named Defendants and discharging the order made by this Honourable Court on Friday 28th of May 1993."

4

The judgment of Geoghegan J. was a reserved judgment given on the 22nd of November 1994 and the findings on foot of which the order of that date was made were:

5

(1) That the second and third Defendants were entitled to sovereign immunity from suit in this jurisdiction and

6

(2) That the Plaintiff's claim fell within Order 11A of the Rules of the Superior Courts (relating to claims within the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988and the Convention therein incorporated) and thus Order 11 did notapply.

7

On the 19th of January 1994 the first Defendant (the Home Secretary of the Government of the United Kingdom) succeeded in a similar application heard by Murphy J. in having the order of the 28th of May 1993 set aside and these proceedings as against him struck out on the grounds of sovereign immunity.

8

The general endorsement of claim on the plenary summons issued on the 21st of May 1993 reads as follows:-

"The Plaintiffs claim is for damages for:"

(1) Trespass to the person.

(2) False imprisonment and deceit.

(3) Breaches of the Plaintiffs constitutional rights pursuant to article 40.3.1, 40.3.2 and 40.4.1 of the Constitution.

(4) Conspiracy to deprive the Plaintiff of his rights of establishment and free movement pursuant to Articles 48, 52, 53 and 54 of the Treaty of Rome and the Directives, Regulations and decisions madethereto.

(5) Conspiracy to deprive the Plaintiff of his rights of establishment within the state pursuant to the convention on human rights or rights analogous or derivative thereto as set out in the Treaty of Rome.

(6) Conspiracy to deprive the Plaintiff of his rights of access to this Honourable Court pursuant to the European Convention on Extradition, the Extradition Act 1965and Statutory Instrument No. 9 of 1989.

(7) Misfeasance of public office of the Defendants and each of them, their servants or agents.

9

And the Plaintiff claims costs."

10

The facts as appearing from the statement of claim and affidavits filed on behalf of the Plaintiff and the second and third Defendants are asfollows.

11

The Plaintiff is a German national born on the 2nd of September 1963. He came to live in Ireland in November 1989 and sometime thereafter he took up residence in County Waterford where he set up a business selling kites and model aeroplanes. In August 1991 the Plaintiff was arrested in Dublin by the Dublin Drug Squad of the Garda Siochana for possession of controlled drugs. He pleaded guilty to that offence and was sentenced to a relatively short term of imprisonment from which he was released in or about October 1991. The Plaintiff did not come to the notice of the Garda Siochana again in relation to offences in this State. It is however, suggested by the third Defendant but denied by the Plaintiff that in 1992 an application was made by the German authorities to the Irish authorities for his extradition to Germany: that thedocumentation in relation to that application was deemed by the Irish authorities not to be in order and that thereafter the German authorities did not pursue the application for extradition from Ireland any further if they made such an application at all to the Irish authorities which as I say was denied by the Plaintiff.

12

The third Defendant David Jones was at all material times a member of the Extradition Passport and Illegal Immigration Squad of the International and Organised Crime Branch of the Metropolitan Police in England. In the month of August 1991 an international arrest warrant was issued by the Mannheim local court in Germany for the arrest of the Plaintiff in respect of alleged offences of unlawful importation and supply of controlled drugs from the Netherlands into Germany. In December 1991 Interpol in Weisbaden Germany requested the assistance of the United Kingdom Extradition Squad to effect the arrest and extradition to Germany of the Plaintiff arising out of the said International Arrest Warrant.

13

The third Defendant learned that the Plaintiff was resident in County Waterford and was accustomed to travel to the United Kingdom quite frequently. He also believed from information which he had received in his professional capacity that the Plaintiff used false documentationshowingdifferent identities on his visits to the United Kingdom and that it would therefore be difficult if not impossible to be aware in advance of the Plaintiffs arrival so as to effect an arrest of him in the ordinaryway.

14

With the authority of his superior officer the third Defendant devised a ruse to entice the Plaintiff to come to discuss certain matters with him in the United Kingdom. The third Defendant through enquiries in the Bristol area following a Kite Festival there succeeded in getting in contact with the Plaintiff in Waterford and with his solicitor in Dublin. He told the Plaintiff and his solicitor that he was investigating frauds with cheques and cheque cards in the name of an N. Schmidt and he wished to interview the Plaintiff in order to ascertain whether he was involved and if not to eliminate him from his enquiries. There was no truth whatsoever in these statements. That being so the Plaintiff knew that he was not involved in any such fraud and would therefore be able to have himself eliminated from the third Defendant's enquiries. Nevertheless he enquired as to what would happen if he refused to travel to the United Kingdom and he was told that in such an event it would be normal practise to circulate details regarding the Plaintiff on the police national computer as being suspected of an offence and that the Plaintiff would bearrested when he first came to the notice of the authorities in the United Kingdom.

15

It was important for the Plaintiff that he should be able to travel freely between Ireland and the United Kingdom. That being so he agreed to travel to London and accompanied by his solicitor to meet the third Defendant there on the 17th of November 1992. On that morning the third...

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